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 http://www.archive.org/details/cu31924021943927 
 
WfTERNATIONAL LAW 
 
 PRIVATE AND CKIMINAL. 
 
 BY ^o-J 
 
 De. L. BAE, 
 
 PROFESSOR IN THE UHIVEBSITT 01" GOTTINGEN. 
 
 f rairslattitr, foH^ Jtol^s, 
 
 G. R. GILLESPIE, B.A. OxoN., 
 
 ADVOCATE. 
 
 BOSTON: 
 SOULE & BUGBEE. 
 
 1883. 
 
TEANSLATOR'S PREFACE. 
 
 The reputation of Professor Bar on the Continent and in 
 America has induced me to undertake this translation, and 
 I have endeavoured, by collecting in notes references to 
 recent authorities and decisions in different countries, to 
 carry out the main object of his work, by supplying practis- 
 ing lawyers with a practical handbook for reference. These 
 notes are inclosed in square brackets thus [ j. The decided 
 cases there cited are for the most part taken from the 
 "Journal du Droit International Priv^e," published by 
 M. Edouard Chanet, advocate in the Court of Appeal at 
 Paris. ' 
 
 Since the date of the last edition of Bar's work (1862), 
 the German Empire has been established, and a criminal 
 code, and a code of procedure apphcable to aU the States of 
 the Empire, introduced ; the latter was passed in 1877, and 
 has been in force since 1st October, 1879 ; the former was 
 re-enacted in 1876. Many of the references in this volmne 
 have thus ceased to be accurate as statements of existing law 
 or practice, but I have thought it better to retain them in. 
 their original form, since their value as illustrations is 
 undiminished, and to state shortly in supplementary notes 
 the effect of the new state of the law. I have had the 
 advantage of reading two pamphlets by the author, both 
 published in 1882, entitled "Civil Process," and "Inter- 
 nationales Privatrecht," which have assisted me in the 
 
IV 
 
 statement of German law as it now stands ; for these 
 pamphlets, and for his kindness in explaining some difficulties 
 that had occurred to me, I have to thank the author. 
 
 I have also to acknowledge my obhgations to Mr. Westlake, 
 and my brother, Mr. W. Guthrie, for the aid I have got from 
 their labours in the same direction. 
 
 Edinburgh, November, 1882. 
 
AUTHOR'S PREFACE. 
 
 The constant and vast growtli of the intercourse between 
 individual States in modem times gives special importance 
 to our subject ; and therefore the attempt to solve the vexed 
 questions of law that belong to it may reckon on approval 
 in so far as it succeeds in attaining its end. 
 
 The more modern treatises on these questions of law that 
 have as yet made their appearance may correctly enough be 
 divided into two classes. The first, for the most part of 
 German origin, has undertaken to settle all problems exclu- 
 sively on general logical principles ; and it cannot be denied 
 that in this way the falsity of many of the older theories 
 has been demonstrated, and an important step thus made to 
 gain a firm basis for the doctrines that belong to our subject. 
 
 But there is in these treatises a lack of a thorough exami- 
 nation of particular cases, which must be the touchstone of 
 every general theory, however ingenious it may be, and less 
 attention than is necessary is paid to earlier literature and 
 the enormous wealth of decided cases. We may not, perhaps, 
 be entitled to make any complaint of this omission, since it 
 was no part of the plan of the works of which we speak to 
 make an extensive use of the literature of the subject, but, 
 nevertheless, we cannot but feel the want of it. Even 
 Wachter's well-known essays cannot satisfy this want, for, 
 however wide and careful his employment of earlier German 
 literature is, a consideration of foreign hterature is, in conse- 
 quence of the scheme of his work, closed to him ; and since 
 
VI 
 
 the publication of those essays on the conflict of the private 
 statutes of different provinces, science has been enriched 
 by an important work in this department, — viz., the eighth 
 volume of Savigny's system. We have still, however, to 
 lament the want of any attempt at an historical analysis of 
 these doctrines that shall strive to draw from the various 
 mistaken theories a comparative truth. All we have had as 
 yet is a clever, but entirely unsatisfactory, body of criticism. 
 
 The second class, consisting of French and English writ- 
 ings, unites a thorough examination of particular cases with 
 an extensive use of the literature and decisions of foreign 
 courts. The want of uniform axioms in these works, how- 
 ever, forces itself on our attention, while we have to desiderate 
 here also a historical exposition of the various doctrines. 
 The reader who consults them for any particular case is not 
 sure that the proposition laid down in one place may not be 
 recalled or at least materially qualified in another, and the 
 feeling is very apt to spring up that there are no legal 
 principles at all in international law, and that all questions 
 must be determined on indefinite considerations of equity — 
 a conclusion which is indeed expressly maintained by some 
 authors. 
 
 In spite, therefore, of the wealth of literature on this sub- 
 ject, there is room for the production of a work which has for 
 its object to combine a thorough examination of particular 
 cases with a logical analysis of general principles, to make use 
 of German and foreign literature and the decisions of the 
 courts of different countries, and to employ the comparative 
 truth of older theories to establish its own views. 
 
 The author has not been able to hide from himself that 
 that is a comprehensive and difficult task ; and if he had from 
 the first fully grasped its difficulties, he probably would not 
 have essayed what is perhaps too great for his powers. He 
 was, however, at first of opinion that it would be useful to 
 expound and to carry out to their full extent the theories 
 
Vll 
 
 whicli had spread more widely in Germany than elsewhere, 
 and that this might be done without any very comprehensive 
 inquiry as a preliminary. When his work, which was sug- 
 gested by various cases that actually occurred to him in 
 practice, was begun, and as it proceeded, he came to be of a 
 different opinion. 
 
 The object he always tried to attain was to produce a work 
 of practical value : to give the judge and the practitioner a 
 review of the literature, an exposition and 'criticism of the 
 various theories of the subject, and a list of analogous decisions 
 applicable to any case that might come before them. And to 
 this end the author hopes that, in spite of the very obvious 
 shortcomings that must, in so difficult a subject, be found in 
 the conception and treatment of his own views, he has not 
 worked altogether unprofitably. He has attempted to divide 
 his subject in conformity with that plan ; faults of arrange- 
 ment must be excused by the difficulties of the subject, 
 which has not to deal with one system of definite and positive 
 law, but with the systems of legislation in different States 
 starting from the most various points of view. 
 
 It is hoped that the work itself will justify the combination 
 of private and criminal law and procedure. Certain general 
 doctrines are common to both these branches of law : the 
 doctrine of domicile and nationality so often discussed in 
 treatises on international law must enter into both private and 
 criminal law, and indeed the combination of the two branches 
 of inquiry is urgently recommended by an authority of weight 
 (v. Mohl). It may be that the propositions laid down in the 
 one subject and in the other will mutually strengthen each 
 other. 
 
 On the other hand, it was not intended to give a complete 
 table of the positive enactments applicable to the subjects 
 under discussion which are in force in different countries. 
 These wUl only be noticed in so far as it may be necessary to 
 do so in order to explain or to test the different theories that 
 
VIU 
 
 make their appearance even in the acts of the legislatiire, or 
 to prove the existence of a consuetudinary international law. 
 The works of Burge and Fcelix have given us such an excel- 
 lent comparative view of positive rules of law, that it would 
 hardly he possible to produce anything better. As far as 
 private law is concerned the profit that is to be made out of 
 the different systems of legislation, in the way of general 
 propositions that bear upon the conflict of laws, comes to 
 nothing more than a few general propositions that will bear 
 the most various meanings. 
 
 It may be added, with special reference to Germany, that 
 if a comprehensive and uniform system of legislation should 
 ever be realised, it may then be possible, following Savigny's 
 indication of the connection that exists between the local 
 limits to the authority of rules of law, and the limits in time, 
 to make some use of the discussions to be found in this work 
 in the kindred subject of the application of new laws : at the 
 very least many of the questions here dealt with will continue . 
 to have a significance even by the side of a greater work of 
 legislation that will embrace all Germany. 
 
 Perhaps, too, an examination of the way in which the 
 different systems of law work as they meet in international 
 questions, may, if it is undertaken in the proper way, contribute 
 something to advance the knowledge of these different systems 
 themselves. 
 
 1862. 
 
CONTENTS. 
 
 PAOB 
 
 List of Authorities referred to, . . . . . . xvi 
 
 Table of Decided Cases, . . ... xxiii 
 
 Jfiret fart. 
 
 History, Literature, and Principles of International Law, 
 Private and Criminal. 
 
 I. Introduction (§ 1), . 
 II. Historical Development — 
 
 A. Eoman Law (§ 2), 
 
 B. The Middle Ages— 
 
 (1.) The Earlier Middle Ages (§ 3), 
 (2.) The Later Middle Ages (§ 4), . 
 
 C. Modern Times up to the beginning of the Nineteenth Cen 
 
 ti^ry (§5), 
 
 Individual Authors of this period : D'Argentr6, Burgundus, 
 Eodenburg, P. Voet, Huber, Hert, J. Voet, Bouhier. 
 BouUenois, Alef, Hofseker (§§ 6-15), 
 
 D. The most Kecent Times (§ 16), 
 
 Individual Authors : Fcelix, Wheaton, Burge, Story, Mass^ 
 V. Struve, Schaffner, MaUher de Chassat, Putter, 
 Pfeiffer, Gand, v. Wachter, v. Savigny, Thol (§§ 17-25), 
 
 E. Principles of International Law, Private and Criminal (§ 26), 
 
 1 
 
 9 
 
 17 
 21 
 
 27 
 
 33 
 
 43 
 
 44 
 61 
 
 ^erflni fart 
 
 General Principles of Peivatb and Criminal Law. 
 
 I, Equality of Legal Capacity in Foreigners and Citizens (§ 27), . 69 
 II. The Application of different particular Laws within the same State, 
 
 and the Application of the Laws of a Foreign State (§ 28), . 75 
 
 ix 
 
III. Domicile and Nationality — 
 
 A. Domicilium et Origo by Roman Law — Import of the 
 
 Eoman Doctrine of Domicile for the determination of Per- 
 sonal Eights in Modern Jurisprudence (§ 29), . . 80 
 
 B. Modem Law (§§ 30, 31), 89 
 
 Note A, on §§ 30, 31— Nationality, . . .110 
 
 IV. Has the Judge only to apply Foreign Law upon the Motion of the 
 Parties, or is it pars judicis to do so ? How is the Foreign Law 
 proved, and what are the consequences if it shall not be applied, 
 or shall be misunderstood ? (§ 32), . . • .116 
 
 V. Concluding Remarks : on Prohibitory Laws (§ 33), . . 123 
 
 126 
 
 143 
 146 
 147 
 148 
 
 148 
 
 '©kiri fart. 
 Substantive Private Law. 
 
 I. Private Law in general — Forms of Legal Transactions — The rule 
 
 Locus regit actum (§§ 34-36), 
 Note B, on §§ 34-36 — The rule Locus regit actum, 
 Form of Contracts concluded by Letter (§ 37), . 
 Stamp Laws (§ 38), .... 
 
 Note C, on § 38 — Foreign Stamp Laws, 
 Effect of a Change of Domicile by the parties in cases where 
 the lex loci actus has not been observed (§ 39), 
 
 II. The Law of Persons — 
 
 A. The Natural Existence of Personality — Presumption of 
 
 Death (§40), 151 
 
 B. Corporations (Legal Persons) (§ 41), .... 154 
 
 Note D, on § 41 — Incorporated Companie -, . . 156 
 
 C. Legal Capacity and Capacity to Act {status) — 
 
 (1.) General Principles (§§ 42-46), . . . 160 
 
 Note E, on §§ 42-45— Status, . . 186 
 
 (2.) Freedom and Slavery — Bondage (§ 47), . . 190 
 (3.) CivE Death (§ 48), . . . . .192 
 
 (4.) Loss of Civil Honour — Infamy (§ 49), . . 193 
 (5.) Limitation of Capacity on the ground of Religious 
 
 Belief (§50), I94 
 
 (6.) Distinctions of Rank (§ 51), .... 195 
 
 (7.) Incapacity to act on account of Minority (§ 52), . 196 
 
 (8.; Curatory of Women (§ 53), .... 200 
 
 Note F, on § 53 — Capacity of Women, . . 202 
 
 (9.) Incapacity of Prodigals (§ 54), . . . 202 
 
 Note G, on § 54 — Effect of Foreign Interdiction, . 205 
 
 (10.) " Specia,! " Incapacities (§ 55), . . . 2O6 
 
 In Integrum Restitutio (§ 56), . . . 213 
 
XI 
 
 III. Law of Things— 
 
 A. General Principles (§§ 57, 58), . . . .216 
 
 On the rule Mobilia personam sequuntur (§§ 59, 60), . 223 
 Inapplicability of the rule Locus regit actum to the con- 
 stitution and transference of Real Eights (§ 61), . 231 
 Distinction between Heritable aud Moveable (§ 62), . 234 
 
 B. Possession (§ 63), ...... 235 
 
 0. Property (§ 64), . .... 237 
 
 D. Jura in re alieiia (§ 65), ..... 249 
 
 IV. Law of Obligations — 
 
 A. General Principles (§ 66), ..... 259 
 
 B. Obligations ex contractu, ..... 275 
 
 (1.) Subject of the Obligation — Permissibility of the Trans- 
 action — (Evasion of Poreign Revenue Laws — Gaming 
 in Foreign Lotteries), (§ 67), .... 275 
 (2.) Conditions of the Validity of Contracts and their 
 
 force in Judgment (§ 68), .... 279 
 (3.) Import of Obligations (§ 69), . . . .282 
 
 (4.) Payment of Money (§ 70), . . . 283 
 
 (5.) Payment of Interest (§ 71), . . 286 
 
 (6.) Parties to Obligations— Agency (§ 72; . . 290 
 
 (7.) Contracts concluded by Letter (§ 73), . . 295 
 
 (8.) Ratification (§ 74), . . . . .298 
 
 (9.) Alteration of Existing Obligations — Dolus,Culpa,Mora 
 
 — ^Destruction of the Subject of the Obligation (§ 75), 299 
 (10.) Transference of Existing Obligations — Assignation 
 
 (§76), 301 
 
 (11.) Performance and Discharge of Obligations — Acknow- 
 ledgment — Plea non numeratce pecunice — Benejicium, 
 CompetenticB — Forced Currency (§ 77), . . 307 
 
 (12.) Extinction and Modification of Obligations in case of 
 
 Bankruptcy (§ 78), . ,. . . .311 
 
 (13.) Extinction of Obligations by Limitation of Action 
 
 (§79), 316 
 
 Mote H, on § 79— Prescription, . . . 323 
 
 (14.) Transmission to Heirs (§ 80), . . . .327 
 
 (15.) Interpretation of Contracts — Reduction of Contracts : 
 particularly Icesio enormis — Discharge by reason of 
 Fault in the Subject — Locus PcenitenticB — Right to 
 Resile after Earnest or Aries has been given — 
 Redemption — Restitution — Effect of Conditions upon 
 Contracts — Discussion of particular Contracts (§ 81), 329 
 (a.) Donation (§ 82), . . . . .334 
 
 Note I, on § 82 — Restriction of Capacity for 
 
 Donation, .... 336 
 
 (fi.) Notes payable to Bearer (§ 83), . . .337 
 
 (y.) Law of Bills (§§ 84-86) 339 
 
 Note K, on §§ 84-86— Bills . . .354 
 
Xll 
 
 IV. Law of Oligations — continued. 
 
 ■ G. OhligsAions. Quasi ex contractu and. Quasi ex delicto (^ 8'J), . 357 
 D. Obligations arising from Illicit Acts (§ 88), . . . 360 
 
 v. Law of the Family — 
 
 Introduction (§ 89), . : . . • .364 
 
 A. Marriage — 
 
 (1.) Personal Capacity — Impediments to Marriage (§ 90), 364 
 (2.) Form of Celebration (§ 91), . . • .368 
 
 Note L, on §§ 90, 91— Forms of Celebration and 
 Capacity, ...... 370 
 
 (3.) Divorce (§ 92), 373 
 
 Note M, on § 92— Divorce, . . .378 
 
 (4.) Personal Relations of tbe Spouses (§ 93), . . 387 
 
 Note N, on § 93 — Personal Relations of the Spouses, 387 
 (5.) Property of the Spouses — 
 
 (a.) Regulation of Eights in Property at the time of 
 
 the Marriage (§ 94), . . . .388 
 
 (/3 ) Capacity of the Wife — Alienation of the Fundus 
 
 Dotalis (§ 95), . . . . .396 
 
 (y ) Change of Domicile by the Spouses after Marriage 
 
 (§ 96), 398 
 
 Note 0, on § 96— Efifect of a Change of 
 
 Domicile, .... 402 
 
 I S ) Donations between Spouses (§ 97), . . 404 
 
 (s.) Contracts affecting the Property of the Spouses (§ 98), 406 
 (!i ) Dissolution of the Marriage — Second Marriage — 
 
 Succession of the Spouses (§ 99), . . 408 
 
 B. Betrothal (§ 100), . . . . . .411 
 
 C. Relations of Parents and Children (§ 101), . . . 413 
 
 Note P, on § 101 — Relations of Parents and Children, . 413 
 
 D. Parental Authority — 
 
 (1.) Constitution of this Authority by Birth or Legitimation 
 
 (§102), 414 
 
 (2.) Adoption — Arrogation (§ 103), .... 421 
 (3.) Rights of the Fatherin the Propertyof his Children (§104), 422 
 
 E. Duty of Maintenance and Dowering (§ 105), . . 424 
 
 iVoie Q, on § 105— Of Claims for Aliment, . . 429 
 
 -F. Guardianship (§ 106), ..... 431 
 
 Note R, on § 106 — Foreign Guardians, . . . 440 
 
 VI. Law of Succession — 
 
 A. Succession in General — Intestacy (§ 107), . . . 445 
 
 Note S, on § 107 — Grant of Administration, . . 461 
 
 B. Dispositions, Mortis Causa Deeds, and Contracts as to Sue- 
 
 session (§ 108), ...... 462 
 
 Form of Mortis Causa Deeds (§ 109), . . . 466 
 
 Note T, on § 109 — Form and Import of Testaments, . 473 
 
 Interpretation of Mortis Causa Deeds (§ 110), . . 476 
 
 Legacies (§ 111), ...... 477 
 
xm 
 
 "VI. Law of Succession — continued. 
 
 Eights of heredes legitvmi and of Persons entitled by Law 
 to share in the Succession — Revocation of Wills (§ 112), 479 
 G. Taking up the Succession (§ 113), .... 481 
 D. Eights to Estate where there is no Heir (§ 114), . . 485 
 
 VII. Appendix — Limits of the Territory of the State — Status of Foreign 
 Governments in questions of Private Law — Ships — Legal Trans- 
 actions in Uncivilised Countries — Questions as to Eights of Private 
 Property and Obligations in Time of War (§ 115), . . 486 
 
 Note U, on § 115 — Eights of Foreign Sovereigns and 
 Ambassadors, ...... 492 
 
 Jourth fart. 
 Civil Procedure. 
 I. General Principles — Scope of the Subject — Voluntary Jurisdic- 
 tion— PuftZica Fides of Officials (§ 116), . . .496 
 II. The Parties : their Legal Representatives and Advisers — Persona 
 
 standiin judicio {^ \17), _ . . . . . 502 
 
 Note V, on § 117 — Foreign Pursuers, . . . 506 
 
 III. Jurisdiction — Competency of Courts to deal with the Property of 
 
 Foreigners — Eight of Foreigners to appear in Court (§ 118), . 507 
 Note W, on § 118— Eight of Foreigners to Sue,. . 512 
 
 Mutual Eecognition of Jurisdiction in International. Inter- 
 course (§ 119), . . . . . .515 
 
 This Theory compared with the Practice adopted by Moderi: 
 German Law (§ 120), 
 Note X, on §§ 119, 120 — Jurisdiction, 
 Prorogated Jurisdiction (§ 121), 
 The Plea of Lis alibi pendens (§ 122), 
 Note Y, on § 122 — Lis alibi pendens, 
 IV. Means by which the Judicial Sentence is reached, and Grounds 
 on which it is determined. (Proof — Onus Probandi — Presump- 
 tions), (§ 123) 549 
 
 Demands for Information on the Subject-matter of an Action 
 (§ 124), . . ..■.'. .554 
 
 V. Final Judgment : its Binding Effect and the Method of its 
 
 Execution (§ 125), .561 
 
 Deliverances by Arbiters— Former Practice — Comparison of 
 the various Grounds of Jurisdiction to be recognised in 
 International Intercourse (§ 126), .... 583 
 Note Z, on §§ 125, 126— Eecognition and Execution of 
 Foreign Judgments, . . . • • 587 
 
 Mode of Execution (§ 127), . • • -593 
 
 VI. Special Kinds of Procedure— 
 
 J. Procedure in Bankruptcy (§ 128), . . . .594 
 
 Note AA, on § 128 — On Jurisdiction to award Sequestra- 
 tion, and effect of Sequestration awarded Abroad, . 606 
 
 520 
 534 
 541 
 545 
 
 547 
 
XIV 
 
 VI. Special Kinds of Procedure — comtinued. 
 
 B. Summary Processes and Diligence upon Contracts (§ 129), . 612 
 VII. Appendix — Position and Rights of Persons entitled to plead 
 Extrar-territoriality, and of Foreign Sovereigns and Governments 
 
 as Suitors (§ 130), .613 
 
 Note BB, on § 130— Rights of Ambassadors and Foreign 
 
 Sovereigns and States, . . . . • 616 
 
 Jifth fart. 
 
 Ceiminal Law. 
 
 I. Historical Development (§ 131), 620 
 
 II. Different Theories (§§ 132-136), . . . • .626 
 
 Note 00, on § 135 — On Criminal Jurisdiction in Germany, . 639 
 
 III. The Principle of International Criminal Law (§§ 137-139), . 641 
 
 Note DD, on § 138— ^Right of every Country to punish Foreign- 
 ers who are present there, .... 647 
 
 Note EE, on § 138 — Crimes committed on Shipboard and upon 
 
 Foreigners, ...... 659 
 
 What Criminal Law is to be applied ? (§ 140), . . . 673 
 
 IV. Particular Problems — Punishment of Police Offences and Minor 
 
 Offences committed Abroad (§ 141), .... 675 
 Place of the Act, and Place of its Operation — Attempted Crimes — 
 Continuous Crimes — ^Art and Part (§ 142), . . . 677 
 Note FF, on § 142— Continuous Crimes, . . .681 
 Reasons for excluding Criminal Jurisdiction — Punishment suffered 
 — Pardon — Prescription — Acquittal — Resumption of inquiries 
 — Punishment imperfectly suffered (§ 143), . . . 683 
 Previous Convictions (§ 144), ..... 696 
 V. Appendix — Rights of Extra-territorial ity — Crimes on Shipboard — 
 Crimes of Soldiers in Foreign Territory — Piracy — Slave Trade 
 (§ 145), 697 
 
 Criminal Procedure. 
 
 I. General — Leading Evidence Abroad — Citation — Effect of Foreign 
 
 Sentences as regards Infamy — Confiscation (§ 146), . . 702 
 
 II. Extradition— 
 
 A. Introduction — Idea of Asylum (§ 147), . . . 707 
 
 B. Nature of the Obligation to give up Criminals to the State 
 
 which desires to Prosecute them (§ 148), . . . 709 
 
XV 
 
 II. Extradition — contmited. 
 
 Special Questions. Criminality of the Act by the Law of the 
 State which is to give up the Criminal — Proper punishment 
 ^Pardon according to the view of the Government on 
 which the demand for Extradition is made (§ 149), . 713 
 
 Exclusion of Extradition for Trifling Offences : for Acts which 
 are only punishable by the Laws of some States — ^Extradi- 
 tion of Political Criminals — Extradition of Persons in 
 Neglect of Duty by not entering on Military Service — 
 Extradition for Breach of the Oath of Military Service 
 (§150), 716 
 
 Extradition of Subjects of the Country — .Extradition in cases 
 where the Person demanded has committed an offence 
 within the Jurisdiction of the State where he is — Sufficiency 
 of Suspicion (§ 151), . . . . .727 
 
 Note GG, on §§ 149, 150, 151— Extradition, . . 730 
 
 Competency of different Officials — Practical Execution of the 
 Process of Extradition — Expenses — Transmission of Pro- 
 ductions (§ 152), 735 
 
 Importance of Treaties of Extradition (§ 153), . . 737 
 
 Kight of Asylum in Ambassador's House or on board Ship 
 (§154), . 738 
 
LIST OF AUTHOKITIES EEFERRED TO. 
 
 Abegg, Ueber die Bestrafung der im A uslande hegamgenen Verlrechen. Landsliut, 
 
 1819. 
 Addison, Law of Contracts. 7th edition, London, 1875. 
 D'Aguesseau, (Euvres. 4to, 1874. 
 Albericus de Kosate {oh. 1356), Be Statutis. 
 
 Alef, -De diiiersorum statutorum concursu eorumque eonflietu dissertatio, 1740. 
 Alexander Tartaguus, Imolends (6b. drdter 1477) ConsUia. 
 Alexander, WiEiam, Writer to the Signet, Practice o£ the Commissary Courts in 
 
 Scotland. Edinburgh, 1859. 
 Archiv merhwij/rdiger Rechtsfalle und Enstcheidungen der Hfieinhessisehen Oerichte 
 
 Tierausgegeien durch die Anwaltshammer in Mainz. 3 vols., Mainz, 1829-1832. 
 Archw des OriminalrecJUs. Halle, 1798 et seq. 
 Archiv fur die OivUistische Praxis. Heidelberg, 1818 et seq. 
 Argentraeus (d'Argentr^) (ob. 1590), Oommentarii in patrias Britonum, leges ». 
 
 consnetudines generates ducatus Britannice. 7th edition, Paris, 1660. 
 Arndt's Lehrbuch der PandeJcten. 2nd edition, Munich, 1855. 
 
 Baldus TJbaldus, Commentarii in Oodicem. 
 
 Bar, Internationales Privatrecht. Reprinted from 4th edition of Holzendorff's 
 Encyclopedia of Legal Science. Leipsic, 1882. 
 
 Barbeyrac, Notes sur la traduction du traiti de Bynkershoeclc : De foro legatorum. 
 
 Bartholomseus de Saliceto, Oommentarii in Oodicem. 
 
 Bartolus, Oommentarii in Oodicem. 
 
 Bauer, Zehrbuch der StrafrechtswissenscTiaft. Gottingen, 1837. 
 
 Bayer, Vortrdge iiber den gememen ordentlichen OivUprocess. 8th edition, Munich, 
 1856. 
 
 Bell, Professor Montgomerie, Lectures on Conveyancing. 2nd edition, Edin- 
 burgh, 1876. 
 
 Bell, George Joseph, Principles of the Law of Scotland. 6th edition, Edin- 
 burgh, 1872. 
 
 Bemer, WirJcungshreis des Strafgesetzes nach Zeit, Saum, und Personen. Berlin, 1853. 
 
 Beseler, System des gememen Deutschen Primatrechts. 3 vols., Leipzig, 1847 et seq. 
 
 Beseler, Oommentar iiber das Strafgesetzbuch fiir die Preussichen Staaten. 
 
 Blackstone, Commentaries on the Laws of England. Edited by Kerr, London, 1876. 
 
 Bluntschli, Staatsworterbuch. 
 
 Bluutschli and Brater, Lehrbuch des Deutschen Privatrechts. 
 
 Boehmer (G. L.), De delictis extra territorium admissis (including Electa juris civUis). 
 Pt. III., Gottingen, 1778. 
 
xvu 
 
 Borchardt, Die allgemeine Dmitsche Wechselordnuny nebst Bemerhvkngm. 2nd 
 
 edition. Berlin, 1860. 
 Eomemann, Systematische Darstellung dea Preussischen, Civilrechts. 2ud edition. 
 Bouhier (06. 1746, President of the Parliament at Dijon), Zes coutumes du ducM, 
 
 de Bourgogne, 2 vols, folio. 
 Boullenois (L., ancien Avocat au Parlement), TraiU et de la personnaiiti et de la 
 
 rialili dea lots, coutumea, ou statuta. 2 vols. 4to. Paris, 1766. 
 Briegleb, Ueber executoriaehe Urkunden und Exeeutw process. Stuttgart, 1839. 
 Brinkmann, WiasenschaftiichprahtischeBechtahunde. Sohlesing, 1831. 
 V. Bttlow und Hagemann, Prahtiache Erorterungen. Hannover, 1798 et seq. 
 Bulmerinoq, Das Aaylrecht und die A lislieferungfiuchtiger Verbrecher. Dorpat, 1853. 
 Burge, Commentaries on Colonial and Foreign Laws generally, and in their Conflict 
 
 with each Other and the Law of England. 4 vols. London, 1838. 
 Burgundus (Nio.) Ad consuetudines Fland/rim tractatus controversiarum. Arnheim, 
 
 1670. Svo. 
 Bynkershoeek (Com.) Deforo legatorum (including Quastionea juria piiblici). 
 
 Campbell, John, Lord, Life of. 2 vols. London, 1881. 
 
 Carpzovius, Practica nova rerum criminaUum. 
 
 Caseregis, Discursus de commerdo. 
 
 Chassat (Mailher de), TraiU dea statuta, lois personndles et rdellea et du droit inter- 
 national privi. Paris, 1845. 
 
 Christianseus, P. (06. 1631), Practica qitceationum rerumque in aupremia Belgarum 
 curiis actarum et obaervationum Decisiones. Antwerp, 1661. 
 
 Christianasus, P., Oommentarii in legea munieipaiea Meeldinienaes. 2nd edition. 
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xvm 
 
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XIX 
 
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XX 
 
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XXI 
 
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xxu 
 
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TABLE OF DECIDED CASES 
 
 Cases decided in the Courts of Oreat Britain or the United States of America 
 are printed in italics. Where the names of the parties have not been 
 ascertained, the case is given under the name of the Court in which it was 
 decided, and its date is appended. In cases reported by the names of the 
 parties, French decisions are marlced P. ; German, G. ; Russian, R. ; 
 Austrian, A. ; Belgian, B. ; Egyptian, E. ; Swiss, S. ; Italian, I. ; Sar- 
 dinian, Sa. ; Meodcan, M. 
 
 Aders, Ooetze v., 608. 
 
 Adh^mar, Herard v., F., 514. 
 
 Adrianee v. Lagrave, 733. 
 
 Ainslie v. Murrays, 271, 285. 
 
 Albertoli i). Gouthier, F., 583. 
 
 Alexander v. Badenach, 327. 
 
 Amiens, Royal Court at, 18th August, 
 
 254. 
 Anderson, Queen v., 659. 
 Antoni, M., 660. 
 Anstruther v. Chalmers, 476. 
 Antoine, Bourcliy v., F., 441. 
 Anvers, Trib. Civ. de, 25th November, 
 
 1871, 537. 
 Ardizoni v. Rider, I., 589. 
 Armovr, Todd v., 239, 245. 
 Aron et Cie., Brocheton v., F., 356. 
 Atkinson v. Sogers, 449. 
 Attorney-General, Shaw v., 378. 
 Aucksert v. Delmoitiez, F., 504. 
 Austria, Emperor of. La Banque de 
 Credit Fonoier et Industrie! t;.,B., 617. 
 Austria, Supreme Court of— 
 
 22nd July, 1812, 457. 
 
 9th June, 1858, 318,351. 
 
 4th Jan. 1870, 443. 
 
 17th Jan. 1871, 384. 
 
 31st Oct. 1871, 426. 
 
 31st July, 1872, 381. 
 
 20th March, 1877, 609. 
 
 17th August, 1880, 493. 
 Aves, Commonwealth v., 191. 
 Azzopa/rd, Reg. v., 653. 
 
 Baden, Supreme Court of, 1852, 252. 
 Badenach, Alexander v., 327. 
 Baillie, Cooper v., 609. 
 
 Balfour v. Scott, 459. 
 Balmiger v. Dutallly, F., 418. 
 Banque de Credit Foiicier et Industriel, 
 
 la, I/. Emperor of Austria,. B., 617. 
 BanqueEurop^enne,Chandorai'.,F.,159. 
 Barbet v. Dhainaut, F., 115. 
 Barclay's Cane, 607. 
 Barclay, Young v., 548. 
 Barros, Sottomayor, v., 371. 
 Bartholoiii v. Prince de Lucinge, F., 115. 
 Bauflfremont, Princesse de, B., 384. 
 Beattie, Johnstone v., 443. 
 Beaufils v. Denis, F., 372. 
 Beaumont v. Olivdra, 476. 
 Becchr^ v. St. Andrew's Qo., F., 614. 
 Becker v. Chantreuille, F., 462, 480. 
 Bedarrides v. Grabisheid, F., 385. 
 Belgian Public Work Co., B., 610. 
 Bellcer, People v., 378. 
 Benasatti, Freyberg v., I., 689. 
 Bender, G'rimshaw v., 341. 
 Benton v. Horeau, F., 143, 283. 
 Benweguen, F., 383. 
 Bergeron, Delorme v., F., 219. 
 Berlaimont, Comte de, Prince of Rheina 
 
 Welbeck v., B., 441. 
 Berlin, Supreme Court of — 
 
 Srd July, 1830, 346. 
 
 25th March, 1833, 215. 
 
 25th March, 1838, 440. 
 
 21st Nov. 1840, 211. 
 
 31st May, 1841, 409. 
 
 5th August, 1841, 78. 
 
 5th August, 1843, 358, 360. 
 
 22nd June, 1844, 316. 
 
 4th Oct. 1844, 456. 
 
 15th Jan. 1845, 323. 
 
xxiy 
 
 Berlin, Supreme Court of — continued. 
 12th April, 1845, 347. 
 3rd May, 1846, 549-50, 553. 
 10th April, 1848, 345. 
 21st Sept. 1849,69. 
 26th Sept. 1849, 553. 
 8th Oct. 1849, 154. 
 12th Oct. 1849, 269. 
 1st Nov. 1850, 426, 429, 483. 
 3rd May, 1853, 410. 
 11th May, 1854, 703. 
 19th July, 1854, 323. 
 16th Oct. 1854, 277. 
 17th Oct. 1854, 553. 
 15th Jan. 1855, 365, 369, 370. 
 14th Peb. 1855, 321. 
 16th May, 185.5, 670. 
 23rd Oct. 1855, 117, 501. 
 30th Oct. 1855, 317, 318. 
 17th Dec. 185.5, 482. 
 17th Jan. 1856, 270. 
 3rd April, 1856, 142. 
 11th April, 1856, 426. 
 19th April, 1856, 390. 
 26th April, 1856, 678. 
 31st May, 1856, 678. 
 9th Oct. 1856, 678, 681. 
 3rd April, 1857, 133, 467, 471, 472, 
 
 473. 
 4th May, 1857, 390. 
 5th May, 1867, 580. 
 9th May, 1857, 346. 
 19th May, 1857/116. 
 13th June, 1857, 134, 148, 342. 
 16th July, 1837, 70, 595. 
 10th Oct. 1857, 97. 
 \6thireb. 1S58, 681. 
 BthTeb. 1858, 240. 
 11th Feb. 1858, 331. 
 11th May, 1858, 352, 595, 601. 
 17th June, 1858, 343. 
 25th June, 1858, 362. 
 4th Oct. 1858, 426, 427. 
 11th June, 1859, 613. 
 25th Oct. 1859, 490. 
 19th Dec. 1859, 402. 
 2lBt Feb. 1860, 346. 
 IGth July, 1860, 342, 353, 593. 
 26th Oct. 1860, 401. 
 
 Berlin, Supreme Court of — continued. 
 
 14th Deo. 1864, 677.' 
 
 24th Jan. 1872, 682. 
 
 18th April, 1873, 682. 
 
 14th Nov. 1873, 682. 
 
 1st July, 1875, 682. 
 Privy Council at,llthApril,1825, 316. 
 Appeal Court for Rhine Provinces, 9th 
 July, 1823, 478. 
 
 24th June, 1827, 390. 
 
 29th Deo. 1830, 427. 
 
 21st Sept. 1831, 296. 
 
 21st Deo. 1831, 266. 
 
 8th Oct. 1838, 317, 351. 
 
 20th Feb. 1843, 253. 
 
 6th March, 1843, 317, 351. 
 
 29th April, 1844, 342. 
 
 10th March, 1845, 333. 
 
 5th July, 1847, 440. 
 
 14th Dec. 1852, 396. 
 
 12th Oct. 1858, 318, 565. 
 Reichsgerichtat,26thNov. 1880, 699. 
 Bemet v. Herran et Pelletier, F., 487. 
 Berthaut, F., 372. 
 Best, Taylor v. 618. 
 B^toland, F., 422. 
 Bikowski, De Patton v., F., 515. 
 Birthwhistle v. Vardill, 418. 
 Blomberg v. Wahberg, R, 324. 
 Blumentkal v. Tannenhole, 380. 
 Bockelmann, Treschow v., G-., 285. 
 Boracio, Dubost v., F., 536. 
 Borelli v. Pagliano, F., 611. 
 Bosso, Demarri v., F., 588. 
 Botta f. Ehrts, C, 355. 
 Bouchard v. Radot, F., 372, 430. 
 Bourchy v. Antoine, F., 441. 
 Bourdeaux, Cour Royal de, 26th Jan. 
 
 1831, 289. 
 Bayer v. Dively, 373. 
 Bradbm-y, 682, 683. 
 Brandoly, F., 734. 
 Brouski v. Brouski, F., 387. 
 Brown v. Massy, F., 689. 
 Brune de Mans v. Guillamnin, F., 379. 
 Brunswick, Court of, 26th May, 1857 
 
 615. 
 Brunsmdc, Duhe of, v. King ofHanmer 
 616, 618, 619. 
 
XXV 
 
 Brunswick, Creditors of Duke of, Duke 
 
 of Cambridge v., F., 205. 
 Bruxelles C. d'Appel de, 12th July, 
 1871, 372. 
 
 • 18th July, 1871, 537. 
 
 13th Jan. 1873, 372. 
 
 9th June, 1873, 442. 
 
 12th May, 1877, 384. 
 
 5th April, 1873, 588. 
 
 14th Feb. 1878, 647. 
 
 Gourde Casaati(inde,9thJuly,1872,734. 
 
 Buchanan, Smith v., 314. 
 
 Buisson V, Cb. de Fer Seville-Xeres, F., 
 
 159. 
 Burbank v. Payne, 449. 
 Burdekin, Hoiertson v., 355. 
 
 Cabert v. Imqua, B., 371. 
 
 Caen, Cour de, 18th Nov. 1852, 416. 
 
 Cairo, Governor of, Osman Bhaleb Bey 
 
 «., E., 116. 
 Cambridge, Duke of, v. Creditors of Duke 
 
 of Brunswick, F., 205. 
 Camoena v. Glisko, F., 387. 
 Carberry, Frehe v., 476. 
 CarmelUni, P., 115, 416. 
 Caro V. Care, F., 387. 
 CarsweU v. Carsicell, 384. 
 Carter, Wyse v., F, 507. 
 Casadinos, Li,id v., 638. 
 Cassel, Supreme Court of — 
 
 6th Deo. 1826, 554. 
 
 13th Dec. 1828, 277. 
 
 5th Dec. 1829, 315. 
 
 1st March, 1834, 695. 
 
 3rd Sept. 1836, 237. 
 
 28th Oct. 1840, 473. 
 
 22nd Dec. 1841, 560. 
 
 26th Oct. 1842, 508. 
 
 19th August, 1844, 684. 
 
 16th Deo. 1848, 595. 
 
 1st April, 1849, 119. 
 
 18th July, 1849, 675. 
 
 28th Sept, 1853, 560. 
 
 11th Feb. 1854, 581. 
 
 2l8t Feb. 1854, 582. 
 
 14th Oct. 1856, 505. 
 
 13th Dec. 1859, 603. 
 Catana v, Fotocki, F., 515. 
 
 Catterina Chiaznan, hil, 
 Cegeilka, Wiernzowski v., G., 327. 
 Celle, Supreme Court of, 1782, 216. 
 
 23rd Dec. 1817, 456. 
 
 14ih Oct. 1831, 198. 
 
 3rd Feb. 1846, 412. 
 
 28th May, 1860, 316. 
 
 4th May, 1852, 413. 
 
 16th Dec. 1852, 288. 
 
 6th Feb. 1855, 316. 
 
 1st Nov. 1859, 681. ' 
 
 17th April, 1861, 257. 
 Cercelet, F., 116. 
 Chalmers, Anstruther v., 476. 
 Chamont, Leray de, F., 232. 
 Chandora v. Eanque EuropiSenne, F. , 159. 
 Chantreuille, Becker v., F., 462, 480. 
 CharTcieh, 493, 494, 618. 
 Chevrillon o. Hdritiers M€chain, F., 
 
 418. 
 Chiapdle v. Couprey, 449. 
 Chimol V. Cohen, F., 424. 
 Chippendale ex parte, 607. 
 Churchill, Ringer v., 430. 
 Cisi, Mazzotti v. I., 535, 588. 
 Clegg v. Levy, 145. 
 Clement, Desarge v., F., 372. 
 Clements v. Macavlay, 512, 548. 
 Clerdent, Erambert v., B., 187. 
 Clonourry v. Ueberfield, G., 278. 
 Cluile V. Roubleff, K., 563. 
 Cochrane v. Paul, 547. 
 Cohen, Chimot, ■</. F., 424. 
 Colmar, Trib. of the Empire at, 342. 
 Colpin V. Des Granges, F., 611. 
 Commonwealth v. Aves, 191. 
 Commonwealth v. LucJmess, 660. 
 Comptoir d'Escompte de Paris — 
 Holthausen & Cie v., G., 158. 
 Gouvernement Ottoman v., F., 495. 
 OonneVs Trs. v. Connel, 475. 
 Constantin, F., 113. 
 Cooper V. Baillie, 609. 
 Coprais' Tr., Wolflt v., B., 610. 
 Comelli v. Cornelli, F., 536. 
 Couprey, Chiapelle v., 449. 
 Courban v. Verri^res, F., 417. 
 Cox V. Mitchell, 547. 
 Curtis V. Hutton, 476. 
 
XXVl 
 
 Dale V. Dumlarion Glass Co., 144. 
 D'Alinegro v. Louis, F., 372. 
 Darmstadt, Supreme Court of — 
 10th October, 1840, 316. 
 25th July, 1849, 670. 
 12th October, 1850, 116. 
 30th September, 1853, 360. 
 20th December, 1853, 122. 
 14th December, 1854, 119. 
 13th May, 1856, 554. 
 11th May, 1866, 550, 553. 
 1862, 353. 
 D'Arzac, Caprera & Cie. v. Georgiades, 
 
 F., 537. 
 Dames, Mitchell <fc £axter v., 475. 
 Debenedetti v. Morand, I., 74, 589. 
 Delmoitiez, Aucksert v., F., 504. 
 Delorme, Haussen v., F., 611. 
 Delorme v. Bergeron, F., 219. 
 Demarri v. Bosso, I., 588. 
 De Nau, F., 442. 
 Denis, Beaufils v., F., 372. 
 D'Ernesti v. D'Emesti, 505. 
 Deearge v. Clement, F., 372. 
 Des Granges, Colpin v., F., 611. 
 Devaux' Tr. v. Geisweiler, F., 607. 
 Dhainant, Berbet v., F., 115. 
 Dientz v. De la Jara, F., 617. 
 Dively, Boyer v., 371. 
 Don T. Uppmann, 319, 324-26, 574. 
 Domestini v. Icaramanga & Cie., 356. 
 Douai, Supreme Court of, 5th May, 
 
 183.6, F., 204. 
 Dreisch, F., 507. 
 Dresden, Supreme Court of — 
 21st June, 1845, 368. 
 1848, 353. 
 
 December, 1855, 122. 
 1st October, 1858,560. 
 28th October, 1859, 598. 
 20th September, 1860, 428. 
 Trib. of the Empire at, 25th Janu- 
 ary, 1881, 535. 
 Dreyfus v. Dreyfus, Gellinard & Cie., 
 
 F., 495. 
 Dubois de Luchet v. Chemin de Fer de 
 
 Nord d'Eepagne, F., 159. 
 Dubost V. Boraohio, F., 536. 
 Dubouohet, F., 113. 
 
 Duch^ et Fils v. Raymond Cie., F., 
 
 160. 
 Dulch^ V. Pirola, I., 442. 
 Dumbarton Glass Co., Dale v., 144. 
 Dunn V. Dupuis, F., 441. 
 Dupuis, Dunn v. F., 441. 
 Durrich, S., 735. 
 Dutailly, Babniger r., F., 418. 
 
 E. N. de Geneve, L. P. et. Cie. de Lyons 
 
 V. S., 543. 
 Edmondson, Ohio Insurance Co. v., 255. 
 Edmtmstone v. Edmonstone, 414. 
 Edwards v. Ronald, 313. 
 Edwards, Van Schaick v., 250. 
 Ehrts, Botta v., G., 355. 
 Elder v. Jleel, 383. 
 Engelbert, Hervey v., G., 294, 324. 
 Erambert v. Clerdent, B., 187. 
 Espagne, Chamin de F& de Nord-Ouest 
 
 de V. Jarousse, F., 607. 
 Etat, "Wright v., F., 590. 
 Exchange v. M'Faddon, 494, 618. 
 
 Fabre, F., 113. 
 
 Falkry Bey, Gauthier v., F., 507. 
 
 Falvey v. De Gonzo, F., 462. 
 
 Fergusson, 444. 
 
 Ferron v. De Santa Tenia, F., 187. 
 
 Fillinger v. Prefet de la Loire, F., 113, 
 
 115. 
 Florence, Court of Cassation at, 26th 
 
 March, 1879, 682. 
 Florence Land Co. v. Guarducci, L, 160. 
 Fourgeaud u Comte de Santa Veiiia, 
 
 F., 187. 
 Franconia, 486, 660, 683. 
 Frankfurt, Reichsgerioht at 15th Mar., 
 
 1880, 636. 
 Friedrich, Matty v., G., 587. 
 Freke v. Carherry, 476. 
 Freyberg v. Benasatti, I., 689. 
 Frings v. Mathyssens, F., 430. 
 Fuentes v. Peiger, F., 514. 
 
 Gamhier v. GamUer, 423, 424. 
 Gand, Trib. Civ. de— 
 
 6th April, 1870, 537. 
 
 27th December, 1870, 537. 
 
xxvu 
 
 GandzomofI v. Lehiantz, IT., 536. 
 Garcia de la Palmeira, Comte de, F., 
 
 337. 
 Garforoukel, Poupardin v., P., 462. 
 Gauthier v. Falkry Bey, P., 507. 
 Geisweiler, Devaux' Tr. v., 607. 
 Gelot, Stewart v., 148, 355. 
 Geneva, App. Ct.' of, 6tli May, 1876, 383. 
 Fed. Court at, 12th Oct. 1877, 638. 
 Georgiades, B'Arzac, Caprera & Cie v., 
 
 F., 537. 
 Gibbs V. Sewastianoff, R., 356. 
 Gladstone v. Muawrus Bey, 619. 
 Glisko, Camoens v., F. , 387. 
 Glover v. Glover, F., 385. 
 Goetze V. Aden, 608. 
 Gonzo, De, Falvez v., F., 462. 
 Gothney, S., 115. 
 Gouthier, Albertoli v., F,, 583. 
 Grahisheid, Bddarrides v., F., 385. 
 Grant v. Sealey, 333. 
 Gravelle des VaU^es, F., 384. 
 Griffiths, Noireterre v., F., 386, 403, 
 
 408, 411. 
 Orimsliaw v. Bender, 341. 
 Guarducci, Florence Land Co. v., I., 160. 
 Guibert, Lloyd v. , 294. 
 Guigonard v. Sarrazin, F. , 474. 
 Guillamnin, Brune de Mans v., F., 379. 
 GuiUemin, F., 441. 
 Guitton V. Kussel, F., 280. 
 
 Badinton, Countess of, Richardson v., 
 
 326. 
 Hall, 683. 
 
 Halle V. Tonnies, G., 306. 
 Hamburg, Court of Appeal at — 
 6th Sept. 1866, 330. 
 26th Oct. 1875, 555. 
 
 Tribunal of Commerce at, 19th May, 
 1859, 350. 
 Hanover, King of, Duke of BrunswicTe 
 
 v., 616, 618, 619. 
 Hanover, Koyal Chancellory of, 17th 
 
 Jan. 1820, 198. 
 Harmony, The, 108. 
 Haussen v. Delorme, F., 611. 
 Havre, Trib. de Comm. de, 9th Oct. 
 
 1874, 536, 545. 
 
 Hawhins v. Wedderlwm, 539. 
 Healey, Grant v., 333. 
 Herard v. Adhdomr, F., 514. 
 Herran et Pelletier, Bernet v., F., 
 
 487. 
 Harvey v. Engelbert, G., 294, 324. 
 Hesse, Ct. of App. for Khenish, — 
 1st June, 1826, 399. 
 2nd Nov. 1830, 313. 
 Hog V. Lashley, 403, 480. 
 Holthausen & Cie. v. Comptoir d'Es- 
 
 compte de Paris, G., 158. 
 Hong-lcong, Att.-Gen. of, v. Ewok-a-Sing, 
 
 636, 661. 
 Hopkins v. Knight, F., 480. 
 Horeau, Benton v., F., 143, 283. 
 Hewlett V. Lethbridge, F., 535. 
 Hutton, Curtis v., 476. 
 
 Icaramanga, Dornestini r., F., 356. 
 Im^court, Comtesse d', MusuruS Bey v., 
 
 F., 367, 372. 
 Imqua, Cabert v., 371. 
 Inglis V. Underwood, 265. 
 Isabella, Queen of Spain, Mellerio v., 
 
 617. 
 Italo Platense Co., Monte Naro v., F., 
 
 514. 
 
 JarJc V. Jack, 381. 
 
 Jara, de la, Dientz v., F., 617. 
 
 Jarousse, Chemin de Fer de Nord-Ouest 
 
 d'Espagne v., F., 607. 
 Jena, Supreme Court of— 
 
 26th Oct. 1826, 299. 
 
 17th Feb. 1827, 201. 
 
 15th Bee. 1831, 201. 
 
 1832, 142. 
 
 1835, 428. 
 
 12th Nov. 1835, 508. 
 
 1839, 428. 
 
 18th August, 1843, 399. 
 
 18th May, 1850, 560. 
 
 11th May, 1852, 258. 
 Johnstone v. Beattie, 443. 
 Joly, Mazy v., F., 383. 
 Jouard, Paumier v.. P., 372. 
 
 Keyn, Queen v., 486, 660, 683. 
 
XXVlll 
 
 Kiel, Supreme Court of Appeal of — 
 
 5th December, 1840, 315. 
 
 26th November, 1845, 400. 
 
 5th February, 1848, 347. 
 
 2nd February, 1853, 421, 460. 
 Klotz V. Klotz, ¥., 382. 
 Knight, Hopkins v., ¥., 480. 
 Kockert, ¥., 288. 
 Kowalski v. Kowalski, F., 387. 
 Kunz & Werder, Rubattino f., F., 159. 
 Kwoh-a-Sing, Att.-Gen. of Song-Kong, 
 v., 636, 661. 
 
 L. P. et Gie de . Lyon v. G. N. de 
 
 Geneve, S., 643. 
 Lacy O'Brien, Laurie v., F., 357. 
 Lagrave, Adrianee v., 733. 
 Laherty v. Prefet de I'Ari^ge, F., 113. 
 Lamoureux, White v., F., 611. 
 LarivUre v. Morgan, 618, 619. 
 Lashlei/s Hog v., 403, 480. 
 Laubinger v. Sohnabel, G., 278, 249. 
 Laurie v. Lacy O'Brien, F., 357. 
 Lawson's Trustees, 506. 
 Lebaudy, 461. 
 Lebon, F., 372. 
 Zees V. Pattei^son, 541. 
 Lefargue, Morgan v., F., 356. 
 Lehiantz, Gandzornoff v., F., 536. 
 Leipzig, Reichsgerioht at— 
 
 24th September, 1875, 356. 
 12th June, 1880, 362. 
 Leroy deChaumont, F., 395. 
 Lethbridge, Hewlett «., F., 535. 
 Levy, Olegg v., 145. 
 Levy V. Neu, F., 507. 
 Lille, Supreme Court of, 21st Sept. 
 
 1846, 166. 
 Lille, Maire de, Plaquet v., F., 379. 
 Limoges, Cour d'Appel de, 8th August, 
 
 1809, 405. 
 Lind V. Casadinos, 638. 
 Lindheimer, Lortach v., F., 113. 
 Lvppmimn, Don v., 319, 324-26, 574. 
 Lloyd V. Guibert, 29 i. 
 Lloyd V. Pettigrem, 493. 
 Longley, Neilson v., F., 514. ' 
 Lortach v. Lindheimer, F., 113. 
 Louis V. D'AUnegro, F., 372. 
 
 Lubeok, Supreme Court of, 261. 
 
 24th March, 1821, 346. 
 
 19th Jan. 1824, 595. 
 
 10th Dec. 1828, 117, 456. 
 
 1833, 348. 
 • 15th Deo. 1834, 601. 
 
 20th Juae, 1839, 522. 
 
 30th Dec. 1839, 233. 
 
 30th June, 1843, 577. 
 
 1st March, 1844, 342. 
 
 31st March, 1846, 294. 
 
 30th Sept. 1848, 317, 351. 
 
 30th Jan. 1849, 490. 
 
 30th Jan. 1850, 118, 331. 
 
 14th Sept. 1850, 116, 302, 509. 
 
 30th Sept. 1850, 138. 
 
 21st Oct. 1850, 240. 
 
 27th Dec. 1852, 684. 
 
 1853, 271. 
 
 10th Dec. 1853, 116. 
 
 29th Nov. 1855, 302. 
 
 3lBt March, 1866, 302, 304. 
 
 20th Oct. 1866, 338. 
 
 22nd Dec. 1856, 119. 
 
 13th Jan. 1857, 117, 509. 
 
 28th Feb. 1857, 456, 482. 
 
 20th Nov. 1867, 429. 
 
 31st Jan. 1858, 350. 
 
 31st May, 1858, 353. 
 . 30th Dec. 1859, 400, 552. 
 
 23rd Jan. 1860, 603. 
 
 26th Feb. 1861, 351. 
 
 21st March, 1861, 98, 456. 
 Lublin V. Possel, F., 611. 
 Lucas, S., 715. 
 
 Lucca, Court of Appeal, 8th June, 
 1880, 99. 
 
 18th June, 1880, 462. 
 Lucinge, Prince de, Bartholini v., F. 
 
 115. 
 LucTcness, Commonwealth v., 660. 
 Luhr V. Times, 73. 
 
 Lyon, Ch. de Fer de, ■„. Eontin, F., 
 536. 
 
 Macaulay, Clements v., 512, 548. 
 Macdonald, 444. 
 
 M'Faddon, Exchange v., 494, 618. 
 M'Henry, Mayo v., F., 480. 
 
XXIX 
 
 Mack and others, White v., I., 610. 
 Magdalena Steam, Ship Co. v. Martin, 
 
 616. 
 Mainz, Supreme Court of, 5th Feb. 1829, 
 
 346. 
 Maire de Lille, Plaquet v., ¥., 379. 
 Maltre, Eenshaw et Kolf v., F., 590. 
 Mali Ivo., 547. 
 Mallac, Simonin v., 188, 371. 
 Mannheim, Supreme Court at, 16th 
 
 May, 1861, 599. 
 Marcel v. Marcel et Pellet, F., 473. 
 Marcillac, Newton v., F., 355. 
 Marseilles, Trib. Comm. de, 7th Nov. 
 
 1871, 345. 
 Martin, Magdalena St. Ship Co. v., 616. 
 Massy, Brown v., F., 689. 
 Matthyssens, Frings v., F., 430. 
 Mattiotti, S., 683, 715. 
 Matty V. Friedrich, G., 587. 
 May V. Sheppard, F., 442. 
 Maynard v. Vernhes, F., 611. 
 Mayo V. M 'Henry, F., 480. 
 Mazy V. Joly, F., 383. 
 Mazy V. Mazy, F., 514. 
 • Mazzotti V. Cisi, I., 535, 588. 
 M&hain Hdritiers, Chevrillon v.,F.,418. 
 Mellerio v. Isabella, Queen of Spain, 
 
 F., 617. 
 MdiMle, Preston v., 450. 
 Messier, Raymond v., F., 590. 
 Metz, Cour Koyale de — 
 25th May, 1825, 374. 
 
 Supreme Court of, 11th May, 1876, 
 113. 
 Miez, Vierry v., F., 462. 
 Mingay, Snaith v., 341, 
 Minnesota, Supreme Court of, 25th April, 
 
 1878, 380. 
 Mitchell & Baxter v. Dairies, 475. 
 Mitchell, Cox v.,. 547. 
 Mohr V. Quien Haldy, F., 54. 
 Monteith v. Monteith's Trs., 235. 
 Monte Naso v. Comp. Jtalo Platense, F., 
 
 514. 
 
 Montgomery, Southgate v., 591. 
 
 Montpellier, Cour Koyale de — 
 
 15th J:an. 1823, 398. 
 
 15th Jan. 1832, 254. 
 
 Morand, Debenedeth v., I., 74, 589. 
 Morgan, LarivUre v., 618, 619. 
 Morgan v. Lefargue, F., 356. 
 Morris v. Eizardi, F., 513. 
 Moscow, Supreme Court of, 17th March, 
 
 1877, 351. 
 Moss ex parte, 607. 
 Most, Reg. v., 632. 
 Munich, Supreme Court of — 
 
 1 Dec. 1829, 428. 
 
 3rd Nov. 1841, 399. 
 
 7th Jan. 1845, 305, 306. 
 
 16th March, 1847, 361. 
 
 11th June, 1853, 318. 
 
 5th June, 1855, 360. 
 
 18th Feb. 1873, 682. 
 Munro v. Munro, 417. 
 Murrays, Ainslie v., 271, 285. 
 Musurus Bey v. Comtesse d'Im&ourt, 
 
 F., 367, 372. 
 Musurus Bey, Gladstoxtc v., 619. 
 
 Nancy, Cour Eoyale de — 
 30th May, 1826, 377. 
 Cour de, 14th June, 1871, 504. 
 6th July, 1871, 690. 
 31st August, 1871, 617. 
 
 Naumburg, App. Court of, 21st Jan. 
 1851, 341. 
 
 NeUson v. Longley, F., 514. 
 
 NeUinger v. Struvd, I., 385. 
 
 Neu, Levy v., F., 607. 
 
 Neufchateau, Trib. de, B., 610. 
 
 Newton v. MaroUlae, F., 355. 
 
 Niboyet, 382. 
 
 Nizza, Senate of, 26th April, 1841, Sa., 
 573. 
 
 Noirterre v. Griffiths, F., 396, 403, 408, 
 411. 
 
 Nord, Chemin de Fer de, et de Cata- 
 logue, F., 158. 
 
 Nord d'Espange, Chemin de Fer de, 
 Dubois de Luchet v., F., 159. 
 
 Ohermann, JRouquette v., 364. 
 
 Ohio Insurance Co. v. Edmondson, 255. 
 
 Oldenburg, Supreme Ct. of App. at, 
 
 5th March, 1853, 418. 
 Olivier v. Townes, 227. 
 
XXX 
 
 Olivdra, Bewmont v., 476. 
 
 Orleans, Cour de, 26th June, 18-28, 
 
 .504. 
 Osman Rhaleb Bey v. Governor of Cairo, 
 
 E., 115. 
 Ottet V. Vereken, F., 357. 
 Ottoman Gouvernement, Comptoirs 
 
 d'Escompte de Paris v., F., 495. 
 
 P. V. R., I., 707. 
 Pagliano, Borelli v., F., 611. 
 Panmure & Co. u. Werner, P., 590. 
 Paris, Cour de Cassation — 
 
 7th Fruotido, 1798, 122. 
 
 18th Thermidor, 1801, 78. 
 
 18th Bruraaire, 1802, 345. 
 
 18th Feb. 1807, 122. 
 
 15th July, 1811, 122. 
 
 12th Aug. 1812, 78. 
 
 1st Feb. 1813, 122. 
 
 3rd May, 1815, 473. 
 
 17th Feb. 1817, 398. 
 
 14th April, 1818, 373. 
 
 30th Aug. 1820, 464. 
 
 27th Nov. 1822, 375. 
 
 5th Aug. 1823, 71, 72. 
 
 16th Jan. 1824, 398. 
 
 22nd Jan. 1826, 677. 
 
 29th August, 1826, 204. 
 
 7th Nov. 1826, 456. 
 
 4th May, 1829, 395. 
 
 25th Sept. 1829, 342. 
 
 30th Nov. 1831, 467. 
 
 14th March, 1837, 451. 
 
 15th April, 1742, 504. 
 
 6th Feb. 1843, 502. 
 
 3rd March, 1846, 560. 
 
 22nd Jan. 1849, 615. 
 
 30th March, 1850, 457. 
 
 30tb July, 1854, 393. 
 
 2lBt March, 1855, 457. 
 
 11th July, 1855, 382. 
 
 12th Jan. 1869, 112. 
 
 19th March, 1875, 113. 
 
 14th July, 1877, 700. 
 Cour Eoyale de — 
 
 13th June, 1814, 81. 
 
 26th April, 1823, 373. 
 
 30th Aug. 1824, 377. 
 
 Cour Eoyale de — 
 
 15th March, 1831, 137, 208. 
 
 7th April, 1833, 456. 
 
 29th March, 1836, 321, 357. 
 Cour Imperial de — 
 
 6th Feb. 1856, 404. 
 Cour d'Appel de — 
 
 11th Feb. 1808, 374, 421. 
 
 16th Jan. 1824, 254. 
 
 30th Nov. 1831, 471. 
 
 29th March, 1836, 356. 
 
 29th Nov. 1850, 364. 
 
 9th March, 1853, 141. 
 
 23rd August, 1870, 617. 
 
 13th Feb. 1872, 379. 
 
 22nd Feb. 1872, 611. 
 
 15th March, 1872, 617. 
 
 28th Jan. 1873, 611. 
 
 24th Nov. 1873, 589. 
 
 30th June, 1876, 487. 
 Trib. Civ. de la Seine — 
 
 29th Oct. 1829, 5'60. 
 
 9th August, 1833, 560. 
 
 3rdFeb. 1872, 414. 
 
 2nd July, 1872, 493. 
 Paris Skating Bink Co. n. Spiller, F.', 
 514. 
 Parlement Beige, 495, 616, 618. 
 Patterson, Lees v., 541. 
 Patton, De, Bikowski v., F., 515. 
 Pau, Cour Royal de — 
 
 11th July, 1834, 277. 
 
 13th Dec. 1836, 504. 
 Paul, Cochran^ v., 547. 
 Paumier v. Jouard, P., 372. 
 Payne, Burbank v., 449. 
 Peiger, Fuentes, c.. P., 514. 
 People V. Belker, 378. 
 Petitjean, Lloyd v., 493. 
 Pfeffer, Vanderstichelen v., 611. 
 Philippe, Heritiers de, F., 536. 
 Pirola, Dulch^ «.,!., 442. 
 Pitt V. Pitt, 381. 
 Plaquet, F., 379. 
 
 Plaquet v. Maire de Lille, F., 379. 
 Pondicherry, Trib. Civ. de, 590. 
 Pooley V. Whittam, 733. 
 Possel, Lublin v., F., 611. 
 Potocki, Catana v., F., 515. 
 
XXXI 
 
 Poupaidin v. Garforonkel, F., 462. 
 Pradines, Roche et Welker v., i"., 590. 
 Prefet de TAridge, Laherty v., 113. 
 Prefet de la Loire, Pillinger »., F., 113, 
 
 115. 
 Preston v. Melmlle, 450. 
 Preve v. Van de Taelen, B., 515. 
 Pritz V. Schenking, F., 514. 
 Purvis's Trustees v. Purvis's Exemtors, 
 
 144, 476. 
 
 Queen v. Anderson, 659. 
 Queen v. .fiTej^ji, 486, 660, 683. 
 Qiuen-Haldy, Mohr v., F., 514. 
 
 R. v. P., I., 707. 
 
 Badot, Bouchard v., F., 372. 
 
 Ramondene, F., 383. 
 
 Batdiff, 380. 
 
 Rannheim, F., 383. 
 
 Raymond et Cie, Duch^ et Fils v., F., 
 
 160. 
 Raymond u. Messier, F., 590. 
 Reel, Elder v., 383. 
 Reg. V, Azeopard, 653. 
 Reg. V. il/bs«, 332. 
 Reims, Soc. G^nerale des Ass. de., F., 
 
 507. 
 Rennes, Cour de, 6th April, 1836, 500. 
 Renshaw et Rolph v. Mattre, F., 590. 
 Bheina-Welbeck, Prince de, v. Comte 
 
 de Berlamont, B., 441. 
 Rich, F., 735. 
 
 Richardson V. Countess ofHadinton, 326. 
 Rider, Ardizoni v., I., 589. 
 Ringer v. Churchill, 430. 
 Rizardi, Morris v., F., 613. 
 Robertson v. Burdddn, 355. 
 Roche et Welker v. Pradines, F., 590. 
 Rogers, Atkinson v., 449. 
 Ronald, Edmwrds v., 313. 
 Rontin, Chemin de Fer de Lyon v., F., 
 
 536. 
 Rostock, Supreme Court of — 
 16th Nov. 1843, 119. 
 19th Oct. 1846, 598, 600. 
 1853, 353. 
 Roubleff, Cluile v., R., 553. 
 Rouen, Cour Imperial de, 23rd May, 
 
 1813, 578. 
 
 Rouquette v. Ohermann, 364. 
 
 Routh, Walworth v., 325. 
 
 Eubattino v. Kunz and Warder, F., 
 
 159. 
 Russel, Guitton v., F., 280. 
 
 St. Andrew's Co., Becchr^ v., 514. 
 
 Sammau v. Souohay, F., 607. 
 
 Santa Venia, Ferron v., F., 187. 
 
 Santa Venia, Fourjeaud v., F., 187. 
 
 Sarrazin, Guigonard v., F., 474. 
 
 Sauer v. Wolff, G., 609. 
 
 Saul V. His Creditors, 180, 188. 
 
 Schenking, Pritz v., F., 514. 
 
 Schnabel, Cloncurry v., G., 278, 
 
 Schoup, B., 114. 
 
 Scott, Balfour v., 459. 
 
 Scott, Valery v., 145, 148. 
 
 Segoyia Ceradra, Compagnie de,F., 515. 
 
 SeviUe-Xeres, Ch. de Fer de, Buisson 
 
 v., F., 159. 
 SewastianoflF, Gibhs v., R., 366. 
 ShaSauser v. Waddington, F., 548. 
 STiaw V. Attorney-General, 378. 
 Sheppards, May v., F., 442. 
 Simili, I., 660. 
 Simonin v. Mallac, 188, 371. 
 Smith in Re, 683. 
 Smith, 641. 
 Smith & Co., F., 537. 
 Smith V. Buchwnan, 314. 
 Smith V. Weguelin, 495, 618. 
 Snaith v. Mingay, 341. 
 Sokolowski, F., 442. 
 Sottocasa, L, 601. 
 Sottomayor v. Barios, 371. 
 Sotty v. Sofcty, F., 372. 
 Souchay, Samman, v., F., 607. 
 Southgate v. Montgomery, 691. 
 Spain, Queen of, Mellerio v., F., 617. 
 Specht V. Specht, F., 372. 
 Spiller, Paris Skating Rink Co. v., F., 
 
 614. 
 Stavert v. Staverf, 380, 381, 384. 
 Stein V. Stein, F., 113, 385. 
 Stenay de, Tought v., F., 611. 
 Stewart v. Gelet, 148, 355. 
 Stocker v. Kirkhope, I., 442. 
 Stoops V. Stoops, F., 431. 
 
xxxu 
 
 Strasburg, Supreme Court of, G., 23rd 
 
 •June, 1876, 113. 
 Struv^, Nellinger v., I., 385. 
 Studd, 475. 
 
 Stuttgart, Supreme Court of, 1st July, 
 1852, 138, 317, 351. 
 
 28th March, 1846, 428. 
 
 7th Dec. 1820, 499. 
 
 13th June, 1833, 550. 
 
 7th Dec. 1830, 550. 
 
 28th June, 1853, 412. 
 
 5th Sept. 1854, 522, 584. 
 
 25th Jan. 1856, 360. 
 
 25th Sept. 1858, 550, 
 Subercasseaux, !F., 385. 
 
 TannmKdU, Blummthal v., 380. 
 
 Tannongi v. Taunongi, F., 536. 
 
 Tayler, 144. 
 
 Taylor v. Best, 618. 
 
 Thomson, Whitehead v., 591. 
 
 Times, I/uhrs v., A., 73. 
 
 Tiiman, 732. 
 
 Todd V. Armour, 239, 245. 
 
 Tonnies, Halle v., G., 306. 
 
 Tought r. de Stenay, F., 611. 
 
 TourmOe, 732. 
 
 Tovmes, Olivier v., 227. 
 
 Treschow v. Bookelmann, G., 285. 
 
 Trevelyan v. Treeelyan, 480. 
 
 Turin, Supreme Court of, 12th August, 
 
 1879, 193. 
 Twmer and Jwmes, ex parte, 607. 
 Udny V. Udny, 110, 188, 417. 
 
 ITeberfeld, Clonourry v., G., 249. 
 
 TJUmann, F., 430. 
 
 Underwood, Inglis v. , 255. 
 
 United States v. Wilder, 494. 
 
 XJnivers Society d'AsSuranoes de 1', 
 
 Society Gendrale des Ass, de Beims 
 
 v., F., 507. 
 
 Valery^v. Scott, 146. 
 Vandersticheleu v. Pfefifer, F., 611. 
 Vanderzee, F., 648. 
 Van de Taelen, Prove v., B., 615. 
 
 Van Overbecke, F., 381, 385. 
 Vam Schaick v. Edwards, 250. 
 Vardill, Birthwhistle v., 418. 
 Vereker, Ottet v., F., 357. 
 Vernhes, Maynard v., F., 616. 
 Verri^rea, Courban v., F., 417. 
 Vidal, F., 383. 
 Vimenet, B., 380. 
 
 Waddington, Shaffauser v., F., 548. 
 Wahlberg, Blomberg v., K., 324. 
 Walmm-th v. Rouih, 325. 
 Warrmder v. Warrmder, 380. 
 Watson, 591. 
 Wattier, F., 688. 
 Wedderbum, HawTcins v., 539. 
 Wegudin, 495, 618. 
 Werner, Panmure & Co. v., 590. 
 White V. Mack and others, I., 610. 
 White V. Lamoureux, F., 611. 
 Whitehead v. Thomson, 591. 
 Whittam, Pooley v., 733. 
 Wiernzowski v. Cegeilka, G., 337. 
 
 16th Oct. 1822, 467, 473. 
 Wiesbaden, Supreme Court of, 5th Feb. 
 1825, 272, 
 
 26th April, 1826, 401. 
 
 1841, 399. 
 
 20th May, 1851, 549, 664. 
 
 18th May, 1858, 396. 
 Wilder, United States v., 494, 618. 
 Wilson V. Wilson, 380. 
 WiAerington, 682. 
 Wolff, Saueri)., G., 609. 
 Wolff «. Coprais' Trs., B., 610. 
 
 20th Jan. 1858,503. 
 Wolfenbuttel, Supreme Court of, 8th 
 
 March, 1858, 412. 
 Wright V. Etat, F., 590. 
 Wyse, Carter v., F., 507. 
 
 X., F., 383. 
 
 Toung v. Barclay, 548. 
 
 Zurich, Supreme Court of, 4th Sept. 
 1853, 346. 
 
INTEENATIONAL LAW, 
 
 PRIYATE AND CEIMINAI, 
 
 JFirst ^art 
 
 HISTORY, LITERATURE, AND PRINCIPLES OP 
 INTERNATIONAL LAW, PRIVATE AND CRIMINAL. 
 
 I. Inteoduction. 
 
 §1- 
 
 If two , natives of this country conclude a contract here 
 about something that is situated here, and thereafter a law- 
 suit comes to depend before a judge of this country about 
 that contract, no one doubts that the judge must apply our 
 laws exclusively, and must determine the status and capacity 
 of the contracting parties, the form of the contract, the 
 meaning of the reciprocal obligations, and the rights of the 
 parties in the conduct of the suit in accordance with them. 
 This is so certain, that it seems quite superfluous to inquire 
 why it is that our laws alone can be applied. 
 
 But on the other hand, if two foreigners conclude a con- 
 tract in our territory, shall the law of the country of the con- 
 tracting parties, or of the place where the contract is made, 
 rule ? And what is to be the result if the subject of the 
 contract is situated in a third State, and the suit should 
 happen to depend in a fourth 1 
 
 Or, to take another instance, a criminal who has robbed a 
 native of this country here, and is caught in this country, 
 wHl undoubtedly be punished in accordance with our laws, 
 
 B 
 
2 [§1. 
 
 f 
 
 and it is the head of our State only who is privileged to 
 pardon him. 
 
 But what is the rule. if a citizen of our country has injured 
 a foreigner in a foreign country, and betakes himself to some 
 third country ? Does the right and duty of punishment 
 belong in this case to the country of which the criminal is a 
 native, or to that in which the crime was committed, or to 
 that to whose territories the criminal has betaken himself ? 
 It seems natural to believe that on these questions, which 
 may be described as the application of the laws of different 
 States to the international relations of private citizens, and 
 which are denoted, except in Germany, by the general title 
 of Private International Law, some fixed general principles 
 must have been adopted, and that there can only be room 
 for criticism and correction on isolated points of detail 
 
 One is apt to think that this assumption is warranted by 
 the traffic that has so long existed between different peoples : 
 some fixed principles must surely have grown up to regulate 
 it. How can the merchant engaged in foreign trade send off 
 his goods, unless he knows what are the rights he acquires 
 against the purchaser in a foreign country, or what are the 
 obligations he undertakes ? 
 
 It is quite true that if foreign commerce is not in any 
 country very extensive — as was the case in ancient times, 
 and to some extent in the Middle Ages — if credit is limited, 
 and the operations of trade are carried on by ready money 
 payments or by barter ; if the legal capacity of foreigners is 
 limited, and they are forbidden to acquire land or to succeed 
 to property ; and if the laws of the different countries are but 
 imperfectly developed — in such a state of matters it is possible 
 to conceive trade existing without any such principles to 
 regulate it. It is the necessary consequence of such simplicity 
 in the modes of traffic all over the world, that the peculiarities 
 of local laws are less prominent, and the general principles 
 that regulate trade and exchange of goods must always be 
 alike among all people, and as a matter of fact are so. 
 
 But on the other hand, the case is very different if, as in 
 our own time, and since new quarters of the globe began to 
 be discovered, traffic is ever advancing, and giving rise to the 
 most complicated business transactions, while foreigners enjoy 
 
§ 1.] 3 
 
 the rights of citizenship as fully as citizens themselves, 
 and crimiaals can quit their own country for another 
 hemisphere with very little trouble, and without haviag 
 to pay for their flight by a loss of legal status in their 
 new country. 
 
 This seems to be a state of things in which some answer, 
 however general, must have been given to the question as to 
 the application of the laws of foreign States : and yet upon 
 comparing the views of the writers on the subject, and 
 examining the judgments of courts of law, we find that there 
 is the very greatest difference of opinion, not merely as to the 
 extent to which it is right or necessary to apply the laws of 
 foreign States, but as to the first question of all, — viz., why 
 they are to be apphed ; and even where there is more 
 unanimity than usual on some particular rule, qualifications 
 and exceptions are so numerous, that they cast doubt upon 
 the rule itself. In the statute books of the different States, 
 we find very few definite utterances on this subject, and 
 these are entirely independent of each other, so much so, 
 that it looks as if their Legislatures, if we except laws and 
 treaties for the punishment and extradition of criminals, 
 had purposely omitted to decide these important questions.^ 
 
 It may no doubt be said that, in so far as regards commerce 
 and civil privileges, every prudent man wUl adapt the legal 
 obligations into which he enters to the various systems of law 
 under which it is possible for them to fall. But how is it 
 possible, in the midst of the vast commercial relations of 
 different coimtries, to determine beforehand in what country, 
 and before what tribunal, any particular transaction may 
 ultimately find itself? and if in this or that case so much 
 may be determined according to probabilities, how laborious, 
 and very frequently how hopeless, it must be, whUe the utter- 
 ances of different systems of law are so contradictory, to 
 observe the different forms that may be necessary, to induce 
 the subjects of more or less distant States to accept them, or 
 even to do so little as merely to ascertain with certainty what 
 is the law that rules in a remote quarter of the earth. 
 
 Thus we reach almost insensibly the conclusion that there 
 
 1 Cf. Savigny, § 348, Guthrie, p. 69. 
 
4 [§1. 
 
 must, after all, be some principles which are in the main 
 established; and that, although there may often be mis- 
 takes in tracing their origin, and a rule may be stretched 
 too far, or be indistinct or misunderstood, stiU. there is 
 such a thing as international law, practically recognised, 
 for the questions that arise in the intercourse of private 
 citizens.^ 
 
 We do not propose in this work to be content with setting 
 up an abstract a priori theory. We propose to discover 
 the law that is practically recognised, and to lay it down as 
 sharply and clearly as possible. To do this, it will be neces- 
 sary to draw general principles from the isolated rules that 
 are fully admitted, and by their help again to construct the 
 details of the system. 
 
 It is necessary, in order to determine the scope of the 
 questions that belong to our subject, and its relation to 
 other departments of law, to distinguish between it and 
 public international law. Public international law deals with 
 the relations of sovereign States as such to each other. In 
 it we do not inquire whether the laws of this or of that par- 
 ticular State are to be applied to the case in hand — that is set 
 entirely out of view ; but we inquire whether the separate 
 States have any common legal relation to each other, apart 
 from their domestic pohty, and if so, what that relation is.* 
 Both public and private international law are part of what is 
 called international law. The common basis on which both 
 rest is the intercourse of States, and there are some topics 
 which may be equally well assigned to either. This is pre- 
 eminently true of criminal law. In so far as it treats of the 
 extent to which the individual is bound by the criminal 
 statutes of some particular State, it seeks to apply rules for 
 the international relations of private citizens; and in so far 
 
 2 In criminal law the want of general propositions on international law is 
 not so much felt ; consequently there is not, even at the present time, any 
 generally recognised basis for its rules ; of. infra, §§ 132 ef seq. [The 
 territorial principle — i.e., the principle that the criminal law of every country 
 is applicable to all acts committed within its own territory, and is excluded 
 from the acts of its subjects committed abroad, is adopted as the basis of the 
 criminal law of England and Scotland; but see § 139 for the qualifications 
 attached to it.] 
 
 s Foelix i. § 1 ; Heffter Volkesrecht, § 1. 
 
§1.] 5 
 
 as the question is concerned with the right of the individual 
 State to bring the criminal to judgment, or with the duty 
 of other States to assist in carrying out the sentence, the 
 prominent consideration is the relation of one State to 
 another. The same thing may truly be said of an idea 
 that lies at the root of the whole subject, the nationality or 
 citizenship of individuals. The claim which any individual 
 makes to belong to any particular State falls under private 
 international law, while the duty of States to recognise the 
 nationahty of an individual may be classed under the head of 
 public international law. 
 
 In this view, we might reasonably enough treat of private 
 and public international law in connection with each other, 
 if we gave to both equal prominence. We should not be 
 justified, as is so often the case where they are discussed 
 together, in taking up the international relations of private 
 persons merely as a part of the other. So treated, one 
 branch of the subject which deserves just as detailed dis- 
 cussion as the other, would appear in a false light. 
 
 The only proper theory of public international law — viz., 
 a duty that sovereign States owe to each other — does not 
 exhaust the question ; and that is the explanation of the 
 brief propositions, and the cursory remarks on the subject of 
 the international relations of private persons, which is all 
 that is to be found in those authors who deal with it in two 
 or three chapters of a work upon public international law. 
 
 But again, private international law is just as little a 
 part of the private law or the criminal law of any individual 
 State. We may, no doubt, take up the provisions which 
 each State makes for the treatment of foreigners, and the 
 application of foreign laws. But if we once take our stand 
 upon any particular system of positive law, the result must 
 inevitably be that the limits of our work on international law 
 wiU become very narrow, or else we shall be landed in a 
 confusion between the particular provisions of different 
 States and the general rules of internatiojial law. In the 
 first case, when we consider how scanty these legislative 
 provisions are in any State, our task seems as if it com- 
 prehended very little ; in the second, we shall mistake its 
 whole character. To warrant this conclusion, one has only 
 
6 [§!' 
 
 to refer to the works on Eoman* and German private law 
 which have been so much used, and once were recognised 
 as excellent. The proper course is that which Arndt takes 
 in his more modern work on the Pandects, to leave out in 
 such works the discussion of international law altogether. 
 But it is, at the same time, always possible to find much 
 excellent matter here and there in the handbooks on the 
 positive law of different States, as we shall have to notice 
 when we come to the subject of criminal law. The discus- 
 sions, however, on our subject are in these works always 
 found mixed up with discussions of public international law. 
 If, then, we must decide upon separating our subject (except 
 in any particular case where our discussion is confined to 
 some one system of legislation), from any exposition of the 
 positive law of any one country, we have yet to decide how 
 far we can combine private law and criminal law, which 
 really belongs to the department of public law. It must be 
 admitted, as Demangeat, in the fourth edition of Fcelix's 
 Works (p. 2, note A), points out, that logically the whole 
 subject of international intercourse may be divided into 
 three parts — viz. (1), The relations of sovereign Governments 
 to each other ; (2) the relations between Governments and 
 the individual subjects of foreign States ; (3) the relations 
 between individual subjects of different States. It is not 
 possible, however, to carry out this logical classification, when 
 we scan it more closely, without breaking up the plan on 
 which particular systems of law are arranged. For example, 
 in a civil suit the rights of the State, as well as the rights 
 of the parties, may have to be considered, as in the case of 
 restraints or impediments placed on marriage, whereby the 
 magistrates are required, in discharge of their duty, to see 
 that certain kinds of marriage are declared null. Such sub- 
 jects fall under two of the above categories. 
 
 * Savigny's System of Eoman Law might be cited as an instance of the 
 opposite. The truth is, however, that that work is not confined to an ex- 
 position of the rules of Eoman law. It has for its object, at the same time, 
 to ascertain the grounds on which the difierent systems of law rest, and is 
 particularly directed to the means which are necessary for the exchange of 
 property among mankind. This, therefore, leads him beyond the circle of 
 the one positive law, as may be seen by the numerous references he makes to 
 the laws of foreign countries. 
 
§1.] 7 
 
 This practical view, and also the belief that one common 
 basis can be assigned to all questions that belong to the 
 international intercourse of private persons, whether these 
 questions relate to criminal statutes, or to the rules of the 
 law of property, or to the forms of procedure, have without 
 doubt moved foreign authors like Foelix, Burge, and Story, 
 to a common treatment of the departments of criminal law, 
 of property law, and of procedure, to which older authors 
 too, such as P. Yoet and Burg\m.dus, were no strangers. This 
 combination, however, is most pressingly urged by one of 
 the most weighty German lawyers in the department of 
 public law (K. von Mohl, p. 182), and it seems to be justi- 
 fied by the reflection that one and the same inquiry ^viz., 
 as to the position of an individual subject of any State in 
 his foreign relations (using that expression in its most 
 comprehensive sense) — ^furnishes, according to the direction 
 of the inquiry, the subject both of private international law 
 and of criminal international law ; while, on the other hand, 
 it is the inquiry as to the relation of sovereign States to one 
 another that supphes the subject of public international law. 
 
 It would be inaccurate to call this composite whole "private 
 international law," although foreign authors, for want of 
 another expression that should take in the whole subject, 
 avail themselves of that name. To avoid misapprehension 
 we have called our subject, " international law, private and 
 criminal." 
 
 Our subject has even recently been on several occasions * 
 entitled "the doctrine of the conflict of laws or statutes," a title 
 which was formerly almost universal ; this title is not only 
 too narrow, if there is to be an examination of criminal law 
 and the law of procedure at the same time, but has a dis- 
 tinctly prejudicial effect upon the treatment of the subject, as 
 is pointed out by Savigny (System viii. p. 3, Guthrie, p. 48). 
 It is thereby assumed that the laws of different countries will 
 always come into collision with each other, so soon as the 
 question of their application in the individual case is raised ; 
 whereas it is quite likely that they will all be in harmony, 
 
 5 For instance by Story, Beseler, Deutsches Privatreclit (i. §, 38), Wachter. 
 These authors have certainly done so -without any prejudicial results. 
 
8 isl- 
 
 and all commit tlie decision of the question to the same code 
 and to the same tribunal. As a matter of fact, that is what 
 is found to happen as a general rule, even in those cases 
 that seem most compHcated. That this is so will perhaps 
 be proved in the following pages. As Savigny pointedly 
 remarks, laws, as might naturally be expected, come into 
 collision only in secondary and subordinate questions. A 
 conflict does not arise because the laws which may possibly 
 be applied to the particular case are different ; it does not 
 arise except where the codes of different States, aU differing 
 from each other, desire to bring one particular case each 
 under its own jurisdiction. It cannot of course be denied 
 that cases of this description do however occur. Savigny, 
 and after him others (e.g. Gerber, D. Privatrecht, § 32) use 
 the expression " local limits of the rules of law." But, if it 
 is conceded that certain rules of law follow the individual 
 wherever he goes, and that the laws of our country, for 
 example, are frequently applied by the judges of a foreign 
 country, it will not be possible to hold that an expression 
 which would make it appear that the jurisdiction of a rule 
 of law in international relations is local, is accurate or apt ; 
 on the contrary, since the rules of law travel with the person 
 or thing to which they belong, from one foreign country to 
 another, one would rather be incUned to speak of them as 
 if the locality where the thing or person happens as a 
 matter of fact to be were quite immateriaL Besides, the 
 insufficiency of the expression is further illustrated, if, as in 
 Savigny's own case, the range of discussion embraces 
 domicile and nationality ; for these subjects are concerned 
 with this very inquiry, whether a particular person, without 
 respect to his local situation, belongs to the jurisdiction of 
 one State or another. 
 
 In some treatises {e.g. Thol, Eichhom,) the subject is 
 treated under the name of "the relations of the various 
 sources of law," or more accurately, "of the co-ordinate 
 sources of law." This expression is certainly correct, if the 
 inquiry is to be Hmited to material private law, and is there- 
 fore quite justifiable in the treatises that admit such a 
 limitation. But it does not suit an inquiry that embraces 
 the law of procedure ; for instance, the subject of the execu- 
 
§§ 1, 2.] 
 
 tion of foreign judgments cannot be brought under it at all. 
 And it will also be observed, that although such a descrip- 
 tion may be fully understood as the heading of a chapter in 
 a treatise of German law, it is easily exposed to misconstruc- 
 tion if it is employed as the title of a monograph. 
 
 II. Historical Development. 
 
 A. EoMAN Law. 
 
 §2. 
 
 Many attempts have been made to find in the autho- 
 rities of the Eoman law general principles for the appli- 
 cation of the laws of different countries, but with very 
 scanty success. Commentators and later authors have hung 
 their own discussions on the conflict of laws upon different 
 passages, e.g., on the first title of the Codex, ^de Summa 
 Trinitate. But, as is obvious from the first glance, it is not 
 their purpose to make any special application of the passages 
 they cite. The discussion, for example, might just as well 
 take place upon any other passage as upon that on which it 
 is generally raised — viz., Cunctos populos quos dementias 
 nostrcB imperiwm regit. For nothing at all can be drawn 
 from the passage save that the emperor can only proclaim 
 laws to the peoples whom he rules — a proposition for which 
 we need not seek authority in the Corpus Juris. 
 
 AU that is proved is as follows : — 
 
 It is well known that the ancients knew nothing of a 
 general peaceable intercourse. The citizen of a State that 
 had no special alliance with the people of Rome, was held 
 strictly speaking as an outlaw ; and a Roman, in the same 
 way, so long as he remained in the hands of the enemy, was 
 considered, in so far as his rights of citizenship were con- 
 cerned, as dead.^ 
 
 By degrees the strictness of this principle was relaxed. 
 Not only were the subjects of the nations with which special 
 treaties had been concluded on the part of the Roman 
 Empire for mutual legal recognition held, upon the whole, to 
 
 ' So, too, even in later times (L. 8, pr. D. qui testamenta, 28, 1), with 
 exception of envoys. They, for example, test in foreign countries according 
 to Koman law (L. 13, § 1, D. 28, 1). 
 
10 [§ 2. 
 
 be of full legal capacity, but so were almost all foreigners with 
 whom Eome had a peaceable commercial intercourse. ^ This 
 did not go so far as to set the foreigner on equal terms with 
 the Roman citizen as regarded private rights and privileges, 
 but the protection of Roman law was extended to them for all 
 the purposes of trade intercourse. For the purposes of trade 
 no principles of law were necessary but those which the 
 Roman jurists indicated by the name of Jv^ Gentiwm, and 
 these the Romans characterised as a, law, " Quod apud omnes 
 gentes perceque custoditur," so that it could never come into 
 conflict with Roman law. 
 
 The rights of inheritance, the rights of family, and the 
 acquisition of landed property (at least in Italy), continued 
 to be denied to foreigners. The marriage of a Roman with 
 a foreign woman was no valid marriage by Roman law ; a 
 foreigner could not inherit under a Roman testament, and 
 even many forms of the transference of property (e.g., manci- 
 patio and in jure cessio), were not applicable to the acquisi- 
 tion of property by strangers.^ 
 
 Where a rule of law belonged to the jus civile, it needed 
 either a special legislative enactment to make it applicable 
 to the relations of Romans and foreigners, where the necessities 
 of the case inevitably demanded such an application, or else 
 the praetor, in the case of an enactment specially laid down 
 by the legislature, and belonging therefore, no doubt, to the 
 
 ^ See L. 5, § 2, D. de captivis, 49, 15. In pace quoque poslliminium datum 
 est J marni si cum gente aliqua neque a/micitiam, neque hospitium neque fcedus 
 armcitice causa factum habemus, hi hostis quidem non sunt; quod autem ex 
 nostra ad eos pervenit, illorwm fit . . . idemque est, si ab illis ad nos aliquid 
 perveniat. ... Of. Foelix, i. p. 8. 
 
 ^ In the year 584 a.tt.c. the right was specially granted to envoys from Gaul 
 by the senate, to buy ten horses in Italy and to take them away with them. 
 "Denorwm equorum eis commercium esset, educendique ex Italia potestas 
 fieret," Liv. xliii. 5; Puohta Instit. ii. § 197, not. b. It is a necessary inference 
 that for themselves foreigners could not buy horses. Perhaps the meaning 
 of the division of things into res mancipi and res nee mancipi, lay in this, 
 that foreigners were excluded from acquiring the former. In the case of res 
 mancipi, traditio, which was open to foreigners, could not transfer the property, 
 and res mancipi were the very things which foreigners must have been 
 forbidden at first to acquire. The fact that res mancipi could be acquired by 
 in jure cessio goes all the further to show that this is the true explanation, 
 since this form of acquiring property was only known among Koman citizens. 
 
§2.] 11 
 
 jus civile, but at bottom merely the development of a 
 principle of the jihs gentium, created the fiction that the 
 dispute was between Koman citizens. An instance of the 
 former is to be found in the plebiscite of the year 561 A.U.C., 
 which extended the provisions as to the legal rate of interest to 
 loans from foreigners to Koman citizens (Liv. xxxv. 7) ; an 
 instance of the second is the formula given in Gains, iv. 37, 
 for extending the punishment of theft to cases occurring 
 between foreigners and Koman citizens.* 
 
 That the law of a foreign country should be applied in 
 those cases where the legal relations of foreigners fell to be con- 
 sidered as an incidental point before a Koman tribunal, was 
 the necessary result of any legal recognition of intercourse 
 with foreigners. If it had been otherwise, and if the Roman, 
 who acquired any chattel from a foreign country had had no 
 appeal to the right that lay in the foreigner who was his 
 author, trade even within the empire must have become 
 uncertain. In the same way, in a suit where one phase of 
 the dispute was as to the Koman law of citizenship, a question 
 might incidentally arise as to the validity of a marriage 
 concluded between foreigners, and this was determined even 
 in a Roman tribunal by the law pf the foreign country, in so 
 far as it was of importance to determine it (Gains, i. 92). 
 All the rules of the Roman law that had reference to suc- 
 cession could only form matters of dispute between Roman 
 citizens,* for there was no succession as between Romans and 
 foreigners ; again in a question of succession as between 
 foreigners, a question that could only come before a Roman 
 court as an incidental point, the law of the foreign country 
 alone could be apphed, if there was to be any recognition at 
 all of succession as between foreigners. This is laid down 
 by Ulpian, Fragm., tit. xx § 14, and by Gains, iii. § 120, as 
 applicable to the testaments of foreigners and to obligations 
 transmitted by succession. 
 
 Thus, if we set aside a few isolated points, it remains 
 doubtful how the Roman private law dealt with such questions 
 as that of legal status and capacity to act in the case of 
 
 * On tlie development of the jus gentivm, see Puchta Instit. ii. § 83-85. 
 5 See L. 6, § 2, D. 28, 5 ; L. 59, § 4, D. 28, 5 ; L. 1, C. 6, 24, 
 
12 [§ 2. 
 
 foreigners. But although direct evidence is not forthcoming, 
 one may assume it as certain that the decision of these 
 questions would be determined by the law of the country to 
 which the stranger belonged. Slavery, if it were lawful for a 
 foreigner to bring slaves to Rome with him, or to take them 
 away from Eome, would be treated by the courts precisely 
 like property in other moveable goods. The other principles 
 of Roman law that touch the question of legal status and 
 capacity to adt were closely connected with the law of the 
 family, and were in reality, except in cases of natural 
 incapacity (which was also recognised by the jus gentium), 
 merely consequences of the position of the individual in 
 the family. The law of the family, however, was regarded 
 as a law peculiar to each nation, and not capable of being 
 communicated to strangers. But where in any particular 
 suit a gross miscarriage of justice might occur, it was in the 
 power of the praetor to further justice by an adaptation of the 
 formula administered by him to the circumstances of the case. 
 
 The private law of property and rights was accordingly 
 treated by Romans and strangers as a special part of the law 
 of status, which followed a Roman wherever he went 
 (Wachter, i. § 242). This fact is specially clear in the days 
 of the Empire, when Roman citizens lived in all quarters of 
 its dominions, and observed their own law without regarding 
 the place where they dwelt. When in later times Caracalla 
 gave rights of Roman citizenship to all the free inhabitants 
 in the empire, the legal position of all became the same.^ 
 
 The object of the books of law compiled under Justinian 
 
 ' It is Savigny's opinion (viii. § 357, Guthrie, p. 120), that the right of 
 Eoman citizenship which every citizen of a municipium had, besides his own 
 native rights of citizenship, had nothing to do with determining his personal 
 rights, but that in determining these no regard was paid except to the law of 
 his own home. This view is met by the prominent meaning given to Eoman 
 citizenship, as regarded private rights and privileges, in the latter days of the 
 Empire, when the established political rights of the individual were not much 
 discussed, and is completely answered by the well known object of Caracalla's 
 decree — viz., to draw from foreigners as well as Romans the taxes levied on 
 succession. But how could the Eoman law of succession have been extended 
 to the citizens of the municipia, if the law of the family and their legal and 
 commercial capacity were not regulated among them by Eoman law? Accord- 
 ing to Savigny's view, cases of conflict between the laws of the different 
 
§2.] 13 
 
 was so practical that they could hardly take up the treatment 
 of a subject so antiquated as the discussions on the conflict 
 of laws that might be discovered in the writings of the classical 
 jurists ; and besides, by reason of the great centralisation of 
 the Eoman Empire, and the maintenance and preservation 
 of the Roman private law as a privilege of Roman citizens, in 
 contrast to those who had not all the rights of freemen, 
 the Dediticii and the Latini Juniani, no customary laws had 
 estabHshed themselves except in a few unimportant matters 
 arising out of the interpretation of commercial instruments. 
 It cases of this kind, however, matters could easily be adjusted 
 with the aid of the principle of bona fides, which in later 
 times was so much extended. 
 
 On the one hand, then, this is an explanation of the scanti- 
 ness of authority upon the conflict of laws in the law books 
 of Justinian ; and on the other, it follows that where in the 
 authorities there is a possibility of a double interpretation of 
 any passage, where there is a doubt as to its meaning, one 
 must give the preference to that. explanation which does not 
 assign the disputed passage to our subject, just because cases 
 of that kind are not so likely to occur. 
 
 For instance, the following passages are assigned to the 
 subject of the conflict of laws : — 
 
 (1.) L. 34, D. de div. reg. jur., 50, 17. The question dis- 
 cussed here is as to the interpretation of a Contract. The 
 passage says, that you must have recourse to the expressed 
 wishes of the parties, and if these are not clearly expressed, 
 that then you must determine the question according to the 
 custom of the locality in which the bargain was made. There 
 is no reference to the form of the contract,'' or to the essen- 
 tials of the legal instrument, as has been frequently main- 
 tained f the passage takes for granted that the instrument 
 
 States and the law of Rome must have been most numerous, and tte want of 
 any decisions of questions of the kind in the authorities, noticed by 
 Savigny himself, would be incomprehensible. A direct authority against 
 Savigny, and in support of the view given above, is the fact recorded by 
 Gellius, N. A. iv. c. 4, that when the right of Eoman citizenship was given 
 to the Latin towns, they lost their own marriage laws. 
 
 7 See Waohter, i. p. 248 ; Savigny, § 356, Guthrie, pp. 117-18. 
 
 « See, e.g. Gliick, Pand. i. p. 290. 
 
14 [§ 2. 
 
 is valid. There is more to be said for the view which makes 
 it a case of conflict between some particular customary law 
 and the meaning of a legal instrument ; but, as Savigny has 
 plainly pointed out,^ this explanation is highly improbable : if 
 the question were about a contract concluded in one place, and 
 to be carried out in another, the general expression, "in 
 regione in qua actum est negotium," must almost inevitably 
 have been misunderstood : for on this hypothesis it could not 
 be determined whether " actum est " referred to the place where 
 it was concluded or to the place where it was to be carried 
 out. Taken in its natural sense, the passage refers to the 
 common case, in 'which two men living in the same State 
 conclude a contract that is to be carried out there. 
 
 (2.) The same holds good of L. 6, D. de evictione, 21, 1 ; 
 L. 1, and L. 31, D. de usur., 22, 1. (See on the latter 
 passage Savigny, § 374, Guthrie, p. 257.) Other passages 
 treat of the rules of jurisdiction within the Eoman State ; and 
 it is plain that if, for example, in L. 20, D. de jurisdict., 2, 1, 
 it is said "extra territorium, jus dicenti i'mpune non paretur," 
 this can only be made to refer, as the second sentence of the 
 passage demonstrates, to the native Koman judge. {See also 
 L. 3, D. 1, 12 ; L. 16, D. de off. proc, 1,16; and also Wachter, 
 i. p. 250.) 
 
 (3.) L. 65, D. de judiciis, 5, 1, which is by many authors 
 (e.g. Hert. sect. 4, § 30, not. 8 ; Gliick, Pand. xxv. p. 271; 
 Thibaut, Pand., § 323) treated as referring to the regulation 
 of the property of spouses according to the laws of their 
 domicile, only speaks of the domicile as the place in which an 
 action for recovery of the Dos can be brought (Savigny, § 370, 
 Guthrie, p. 209). 
 
 (4.) L. 19 of the same title lays down that actions for 
 debts due by one who has died must be brought against his 
 heir in the place where his predecessor had his domicile : 
 there is no reference to different laws of succession, among 
 which the law of the predecessor's, domicile is to prevail 
 (Wachter, i. 250-51.) To take another instance, the rule 
 that questions as to moveables are to be determined by the 
 law of the domicile of their owner (Marius ad Jus. Lub. 
 
 s § 372 and 374, Guthrie; p. 226 and 245. 
 
§2.] 15 
 
 Proleg. qusest. 6, n. 20 ; Hofaeker, Principia jur. Rom. Germ., 
 §140) cannot be deduced from L. 32, D. 20, 1, de pignor, 
 and L. 35, D. de hered. instit, 28, 5. In tlie former passage, the 
 point discussed is simply,What are the pertinents of any subject? 
 in the second. What is to be the interpretation of a testament 
 in which two heirs were named, one for Res Italicce the other 
 for Res Provinciales that belonged to their predecessor ? 
 
 (5.) If these passages which treat directly of a conflict of 
 laws are put out of account [e.g. L. 1, § 15, D. 25, 4 ; L. 3, 
 § 6, D. cfe testibus, 22, 5, and L. 31, C. de testam., 6, 23], all 
 that are left are the passages in L. 9, C. 6, 23, de testam. ; 
 L. 2, C. 6, 32, quemadTnodum test., L. 1, C. 8, 49, de eTnancip. 
 The first and most plausible of these passages is referred by 
 Wachter (i. § 24) to a case of conflict of laws, and, if this is 
 assumed, would certainly enunciate the rule which, according 
 to the previously cited authorities, is correct, that according 
 to Roman law the form of a testament is regulated by the 
 law of the domicile of the testator. 
 
 But, as Savigny notices (§ 382, Guthrie, p. 326), if the 
 passage treated of a case of conflict, the words "patrim tuce " 
 must have reference to the law of the domicile of the heiress, 
 and this dehverance could not possibly be correct in law. It 
 is therefore to be assumed that the heiress and the testator 
 had the same domicile, and that in that domicile the testator 
 had executed his testament. 
 
 The second passage lays down that testaments are opened 
 and made public according to the custom of the place of 
 opening. This enactment, in the first place, has nothing to do 
 with the private law of property and obligations ; and in the 
 second place, makes no allusion to any case of conflict between 
 different laws. 
 
 The third passage treats of the rights of the duumviri in 
 cities. Whether a ceremony of emancipation performed before 
 them is or is not valid depends upon whether they have, by 
 special enactment, received the right of " legis actio," and no 
 further explanation is necessary. There is no discussion of a 
 conflict between the laws of- different cities, but merely of 
 the different rights of ofiScers of cities, depending, of course, 
 on the provisions of the laws of these cities. (See Savigny, 
 viii. § 382, Guthrie, p.. 327.) 
 
16 L§a- 
 
 If, then, it be true' that provisions as to the private law of 
 property and obligations are not to be found in the law of 
 Rome, it can very easily be understood that there is nothing 
 forthcoming as to the relations of Roman tribunals to those 
 of foreign States. In the days of the Empire, all the courts 
 that existed within it from one end to another were under the 
 supreme jurisdiction of the emperor; and those peoples who were 
 not subject to the sway of Rome, belonged to so low a grade of 
 civiHsation, that questions of that nature could hardly arise. 
 
 Lastly, as regards criminal law, the want of information 
 on this subject in the authorities is also explained by the 
 complete mastery over the world attained by Rome in her 
 later days." This much is certain, and may be explained by 
 the world-wide dominion of Rome, that every dehct com- 
 mitted on Roman soil, unless when some foreign envoys took 
 the responsibility for it upon themselves," was punished by 
 the courts of Rome, and before the Forwm delicti commissi, 
 which in later times came to be recognised everywhere. ^^ 
 (See particularly L. 3, D. de off. prces., 1, 18.) The older 
 enactments of the Roman law as to private prosecutions 
 between Roman citizens and Peregrini (Gains, iv. 37) were 
 certainly in Gaius's time, when there was any serious charge 
 involved, obsolete," and were never regarded by officials in 
 their administration of punishment.^* The older treaties 
 
 ^^ In more ancient times, up to the first century of the KepubKc, it 
 was regularly provided, with regard to Peregrini with whose States the 
 Bomans had concluded treaties, that the trial should take place before the 
 tribunal of the country to which the criminal belonged, although there were 
 also instances of criminals being given up by the agency of the Fetiales to 
 the State to which the injured party belonged (Eein., Criminal Becht der 
 Eomer, Leipzig, 1844, § 174). 
 
 " Eein., p. 179 et seq. 
 
 '^ Geib, Geschichte des Eomischen Criminalprocessen, Leipzig, 1842, 
 pp. 487-88. The Forwm originis is not, however, unknown to Eoman law, 
 and it was in accordance with the republican pride of the older days of Eome 
 up to the Empire, that more serious crimes committed by Eomans could only 
 be brought to judgment in Eome itself. 
 
 1' As described above, there was a fiction that the peregrimis was " Civis 
 ' Bomanus, si modo justum sit earn actionem etia/m ad peregrinum extendi." 
 Gains, loc. cit. 
 
 1* L. 3, D. de off.prms., 1, 18. Eabet — imperium et adversvs extraneos 
 homines si quid manu commiserint — nee distinguitur inde sint. See L. 7, 
 § 2, T). de captims, 49, 15 ; C. ubi de mm., 3, 15. Nov. 69, c. 1 ; 134, c. 5. 
 
§§2,3.] 17 
 
 in matters of criminal law concluded between Eome and 
 other States, had much more of a political than a juristic 
 character. There lay at the" root of them the idea of the 
 hold of the State over any of its subjects who had done a 
 wrong to a foreigner in a foreign country: the State could 
 discharge this hold by surrendering the guUty party to the 
 State that had been wronged ; but it also followed that if the 
 foreign State did not claim the extradition of the criminal, 
 he was not visited with any punishment in Rome (L. 17, 
 D. de legit, 50, 7). In later times, when the Roman Empire 
 had become almost world-wide, there could not be much 
 heard of the extradition of Roman citizens to foreign States ; 
 but on the other hand, even in these later days, there were 
 still instances of foreigners being surrendered by foreign 
 States (Kostlin, System des Deutschen Strafrecht, pp. 38-39; 
 Witte, Medit., p. 26; Rein, p. 172 et seq. On international 
 law among other nations of antiquity, see Witte, p. 13 
 et seq.). 
 
 B. The Middle Ages. 
 
 §3. 
 
 (1.) THE EAULIER MIDDLE AGES. 
 
 It is well known that a foreigner by the original Germanic 
 law 1 was held, as he had by the old law of Rome also been 
 held, to be outside its pale, a waif and a stray (Wildfang 
 oder biesterfrei) ; and to enjoy its protection it was necessary 
 for each individual to acquire rights for himself (Eichhorn, 
 D. Privat Recht, § 75 ; Wachter, i. p. 253). 
 
 As a result of the conquests which the different German 
 peoples, and especially the Franks, won in the times of the 
 great national migration and immediately thereafter, this 
 theory, in so far as those races which were bound up by the 
 conquering people into one nation with themselves were con- 
 cerned, disappeared. AH the races that belonged to the 
 Empire of the Franks were placed under that rule of law 
 
 ^ The Russian law in the Middle Ages not only accorded foreigners a per- 
 fect equality with its own people in the eye of the law, but even gave them 
 various advantages. On the Russian treaties concluded in the Middle Ages, 
 see the interesting information given by F. Witte (Die Rechtsverhaltnisse der 
 Auslander in Russland, pp. 4-22). 
 
 C 
 
18 L8 3- 
 
 wMchin modern times is described as the system of personal 
 laws, and which consisted in this, that every man was laid 
 under the jurisdiction of the law of that race to which he 
 belonged by descent. How this state of matters arose cannot 
 be better described than in Savigny's words (History of 
 Eoman Law in the Middle Ages, Vol. I. p. 118) :— 
 
 "The system of personal laws does not arise in the 
 principle of humanity, for among the ancient Germans every 
 stranger was originally looked upon as a waif or a stray 
 {Wildfang oder biesterfrei). Again, so long as there are 
 only one or two isolated foreigners to be found among each 
 nation, as we must suppose to have been the case when trade 
 was scanty, the want of any such arrangement is not Ukely 
 to be felt. Besides, one can hardly conceive how such a 
 system could in these circumstances arise ; for who could 
 have told the foreigner what his rights in a foreign country 
 were ? This system of personal law could not arise until the 
 nations had been mixed up with each other in great masses 
 by foreign conquests. If we assume this as its origin, the 
 system of personal laws must have been adopted in aU the 
 Germanic States that were established on Roman soil, in the 
 form at first of a double system of law — the law of the con- 
 quering race and the Roman law. In such a State, Germans 
 of other races did not enjoy their own law. But when this 
 State extended its conquests, and put other German races as 
 well as the Romans under its sway, then the Germanic law 
 that belonged to the conquered race obtained just as general 
 a recognition in its dominions as the Roman law had done ; 
 and conversely in every country that fell under the yoke of 
 a foreign invader, all the systems of law that were recognised 
 by the conquering race were held good there also. After 
 Italy was conquered by the Franks, the victors introduced 
 all the various kinds of law that were recognised in their own 
 country." ' 
 
 2 At the same time, it is quite possible that by this time in the interior of 
 Germany these personal rights were recognised among peoples who dwelt side 
 by side, and especially where there was some kinship. [A similar system 
 now prevails in British India ; of. Westlake on Private International Law, p. 
 11. The law there administered consists of: — (1) The enactments of the Indian 
 Legislative Council ; (2) the Statutes of the British Parliament applicable 
 
§ 3.] 19 
 
 It must not, however, be forgotten that this system of 
 personal laws was founded on the theory that each different 
 race within the bounds of the empire was a caste or status 
 by itself. It was natural that the victors should set them- 
 selves above the vanquished, and look upon their own law as 
 a peculiar privilege, which they would neither amalgamate 
 with the law of the vanquished, nor share with them. . The 
 manner in which the legal relations between persons of differ- 
 ent races were regarded is quite in accordance with this theory. 
 
 As a rule, every man, as has been remarked, lived by the 
 law of the nation to which he belonged by descent, and the 
 law of his father's nation of course ruled. The wife lived 
 by the law of her husband's nation, for during the subsistence 
 of the marriage she shared his status, and did not recover the 
 law under which she was born till she became a widow; 
 marriage was celebrated under the law of the husband's 
 nation. Priests were under the law of Kome, for they passed 
 over from the status to which they belonged by descent into 
 the priestly status, to which for some time the Roman law 
 had been appropriated. 
 
 As no one could capriciously change his own status, so it 
 was forbidden to change the law under which one lived ; 
 there were, of course, instances in which the adoption of a law 
 different from that in which one had been bom was permitted.^ 
 
 This theory of a law of status is the explanation of the 
 fact that, in an age when there was no sharp distinction 
 between the real right in a thing and the personal claim to 
 its delivery,* the defender as a rule pleaded his defence under 
 
 to India ; (3) the Hindoo or Mohammedan laws of inheritance, status, and the 
 like, in cases where Hindoos or Mohammedans are concerned ; (4) the custom- 
 ary laws of particular castes and races. Where there is a conflict, the law of 
 the defender is preferred, as stated in the text]. 
 
 ' On the so-caUed "professio legis," see Savigny, §§ 41, 42 ; and the true 
 view in Hegel, Geschichte der Stadteverfassung von Itelien. Leipzig, 1847. 
 I. p. 436. 
 
 * By the 139th article of the Edict of Theodoiio, the competency of the 
 court is fixed by the status of the accused himself, and not by that of his 
 surety (Savigny, § 104). But according to other passages, in so far as the 
 law of property and obligation is concerned, the law under which the author 
 lived is taken into consideration (L. Burgund., tit. 55, § 2 ; Oapitulare 2, anni 
 819, art. 8 ; Savigny, § 46). 
 
20 LS^- 
 
 his own system of law, since a personal obligation could be 
 entered into by bim in no other way than according to the 
 law of his own status. It is, e.g., certain that the church 
 and those provincials who lived in the kingdom of the 
 Franks under Eoman law could defend themselves by plead- 
 ing the thirty years' prescription, in spite of the fact that 
 that was not recognised by the Franks ; and it is also certa,in 
 that in all cases where the validity of an act of one of the 
 parties to the suit, or of some third person, was questioned, 
 the law of the party who did the act in question ruled (Capit. 
 2, anni 819, c. 8); and accordingly, the form in which a man 
 had to acquire anything was determined by his own law; the 
 form in which a man had to transfer anything, which no doubt 
 was concurrent with the acquisition by the other, was deter- 
 mined by the law of him who transferred.^ 
 
 Again, the privilege of meeting any claim by tendering an 
 oath was determined by the law of the person against whom 
 the claim was made, and in the same way the penalty incurred 
 for any crime was determined. Every man's succession was 
 ruled by his own law; so that, if a Roman was to be the heir 
 of a Longobardian by his last will, two or three witnesses 
 were sufficient, but in the converse case seven were required.^ 
 
 There was only one case which seemed to be an exception, 
 and it also was a logical result of the theory of the law of status. 
 This was the case of blood-money and composition, which 
 were settled by the status of the person who had been killed 
 or injured. Both of these, however, were simply the com- 
 putation of the value of the dead man to his family or to his 
 nation, and such a computation had to be settled by the place 
 which each nation asserted for itself in the whole kingdom. 
 The ruling nation could not possibly allow the value of the 
 Uves of its members to be determined by the law of any 
 subject race, nor could it sanction a higher rate of blood- 
 money for a member of the subject race than it approved 
 for one of its own stock. In this way the foreign SaUc law 
 
 5 The directions of both laws must therefore be observed on either side. 
 Eichhorn, i. § 36, 5th ed. ; Savigny, L 46. On the provisions of the older 
 Sclav (Russia) law, see Witte, p. 11. 
 
 « Pipin, R. Capit., cap. 4, c. 46 : " Ut Bomani successiones secundum 
 illorum legem, haheant." 
 
§§ 3, 4.J 21 
 
 prescribed to the Eoman what was the amount of the com- 
 position he was entitled to receive." 
 
 The sum of the matter, then, is this — ^putting out of view 
 that jus gentium which was peculiar to these ancient times, 
 and was identical with that known to Roman law, — that with 
 this system of personal laws, by which a conflict of the laws 
 of different nations was turned into a conflict of the laws of 
 different classes in one nation, the questions of international 
 law could not arise. Such a treatment of foreigners was 
 satisfactory in those times, when commercial intercourse was 
 not very involved, and when legal relations were so simple ; 
 it cannot, however, be denied that at the same time many 
 questions of detail, as to which we have no precise informa- 
 tion, may have remained unsettled. (Story, § 2 ad fin.) 
 
 §4. 
 
 (2.) THE LATER MIDDLE AGES. 
 
 In the later Middle Ages the system of personal laws has 
 disappeared.^ This change is explained as due to various 
 circumstances. Savigny (History, i § 49, p. 180 ef seq.) ex- 
 plains it as due to the feudal system and bondage. These 
 changed the nation for the most part, if not entirely, from a 
 body of race communities into a body of feudal retainers and 
 bondagers. In the former state the law that prevailed was 
 the law of these races; in the new state it was the law of 
 service — a law that drew most of its provisions from the laws 
 of the different races, but no longer made any distinction on 
 account of differences in descent. 
 
 Eichhom again (D. Rechtsgesch, i. § 46, note 2) finds the 
 root of the system of territorial law in the voluntary associa- 
 tion of men in burghal communities. No doubt both of these 
 contributed to the disappearance of the system of personal 
 laws, but neither will furnish a complete explanation of the 
 
 ' See Savigny's History, i. § 47. 
 
 ^ The jurists of the Middle Ages regularly choose the discussion of the 
 binding power of statutes as the proper place to treat of this subject. The 
 later commentators treated Boman law as universal, and therefore held that 
 every other law was a special deviation from it — statutum. This way of 
 treating the subject has had an important, and, to a certain extent, lasting 
 influence on the treatment of international law, as we shall have occasion to 
 remark. 
 
22 [§ *• 
 
 change. Both prove too much ; for they prove this, that 
 foreign laws were no longer applied by courts of justice, 
 since the foundation of both theories is, that the old legal 
 doctrine was so seldom invoked that it disappeared. It 
 is, however, well known that even in the later Middle Ages 
 there were often debates before the tribunals on the applica- 
 tion of the laws of foreign countries, and this fact suggests 
 for our consideration, before we attempt to discover an ex- 
 planation of the change, the question. What really was the 
 state of the law on these matters in the later period ? 
 
 One generally assumes (cf. Wachter, i. p. 253 ; Fcelix i. 
 § 5) that the prmciple of territorialism lies in the applica- 
 tion of the laws of a State to all persons and things that 
 happen to be within its limits. But even at the end of the 
 Middle Ages there was no thought of a territorial law of that 
 kind. 
 
 If passages such as the notes of the commentators on 
 L. 1, C. de S. Trin. i. 1, "Quod si Boniensis conveni- 
 atv/r Mutince, non debet judicari secundum Statuta M;u,t'mcB, 
 quihus non subest "; or Durand, Spec. Juris, Lib. iv. pars. 1 ; 
 Be constitutionihus, Kubr. No. 5, and a great number of 
 others,^ are consulted, it wUl be seen that the idea of sub- 
 jecting foreigners in all circumstances to the law of the 
 country was far from being famUiar even in the latest days 
 of the Middle Ages. All the discussions of the commentators 
 proceed directly upon this proposition — viz., that a statute is 
 binding only upon subjects of the State, and it frequently 
 happens that discussions on the question as to whether a 
 statute is binding on the clergy are set alongside of the ques- 
 tion as to the conflict of the laws of different States.^ In 
 fact, towards the close of the Middle Ages the theory which 
 in later days has been called the theory of Personal, Real, and 
 Mixed Statutes had begun to prevail 
 
 2 e.g. Jason Mayn, ad locum supra citatum, No. 17 ; Albericus de Eosate 
 de, statutls, Lib. i. q. 7 ; Petri Ravennatis, tractatus de staiutis, sect. 3, § 36 ; 
 Albert Bruni, tractatus de statutis, art. 6, § 2 ; Rochus Ourtius, iu Cap., cum 
 tanto de consuetudine, sect. ix. § 1 et seq. ; Barthol. de Saliceto, in Leg. 1, 
 G.deS. Trin. 
 
 s See Albericus de Rosate, de stat., Lib. ii. q. 2, §§ 1, 10, 15; Petr. Eavenn., 
 de staivi, sect. 2, § 51 ef seq. 
 
1 4.] 23 
 
 A distinction is drawn between statutes that apply to per- 
 sons and those that apply to things : if to persons, then the 
 operation of such a statute cannot be extended to strangers, 
 or, to use the common expression, Forenses; and of course the 
 Subditus, eyen while he may be in a foreign land, is still 
 constantly subject to the laws of his home, unless these laws 
 have a mere local application — as, for example, corn laws, 
 laws as to exports and imports, and other police regulations. 
 But if the statute refers to a thing, the laws of the place 
 where the thing is situated must be applied ; it being under- 
 stood that this rule is applicable only in the case of immove- 
 able things, siace questions as to moveables are determined 
 by the laws of the place in which the owner or the possessor * 
 has his residence. At last it came to be recognised that 
 strangers might subject themselves to the laws of a foreign 
 country by virtue of acts done by them there, either by con- 
 cluding contracts or committing delicts.^ This theory seems 
 to correspond completely with the manner in which the 
 governing body or sovereignty of the different States developed 
 itself in the Middle Ages. 
 
 The leading idea, which prevailed at the time of the 
 Karlings, and long afterwards existed in theory, was that of a 
 world-wide empire of the pope and the emperor — the former 
 bearing sway in spiritual, the latter in temporal matters." 
 The privilege of legislation, which was claimed by other 
 authorities, rested upon autonomy conferred by the pope and 
 the emperor, and might be either the autonomy of a great 
 landholder or of a free community. The former prescribed 
 to his vassals and bondagers the manner in which they were 
 to render services to him, and to succeed to the land which 
 they held of him ; the latter combined to lay down regula- 
 tions for the exercise of their trades, and provided in the 
 
 * On this point, and generally on the extension of this doctrine, there is 
 very great obscurity. Of. §§ 59, 60 infra. 
 
 ^ Of. Bartolus in Cod. ad loc sup. cit. de S. Trin., Bald. Perns. Tract, de 
 statutis in the Tractaius ill/ustr. Tetonv/m Venetiis, 1588, torn. ii. fol. 86 ; 
 Albericus de Eosate, Lib. ii. q. 1 ; Bald. Ubald, in loc cit de S. Trinit. 
 
 * e.g. Barthol. de Saliceto on the passage of the Oode already quoted, de S. 
 Trin., No. 3 ; Bald. Ubald, same passage, No. 20 ; Lanfranc de Oriano, De 
 interpretatione Stat., in the Tract ill lit. fol. 391, p. 2 ; Jason Mayn, in Cod. 
 Be S. Trin. ; Bartolus, in Dig. Nov., L. 24, de captivis. 
 
24 \F^ 
 
 same way for the occupation of the land that belonged to 
 them. In both cases the means of keeping these independent 
 legislatures in force were supplied by the jurisdiction that 
 •was conferred upon them, and where such a jurisdiction, 
 generally associated with a separate territory, was wanting-^ ' 
 as for instance in the case of the dififerent commercial guilds 
 in cities — ^then these independent legislative powers could 
 only be made good to a very limited extent. 
 
 Nothing, accordingly, could be more natural than to confine 
 the operation of the legislative authority to the dependents 
 of the great landholder, or to the persons who belonged to 
 the free community, and to the land held by such a com- 
 munity. This arrangement would no doubt derive support 
 from the state of matters that had formerly prevailed, accord- 
 ing to which, by the system of personal laws, the foreigner 
 always retained the peculiar law of his own home, even in 
 the territory of another race, and the law of that race on 
 the other hand was not extended so as to affect foreigners. 
 Again, however, the acquisition of real property was associated 
 either with full subjection to the feudal superior or overlord, 
 or with the undertaking of some special duties.*^ . An arrange- 
 ment such as this must necessarily have given rise to the 
 view that foreigners, in so far as the acquisition or pccupation 
 of real property was concerned, should be subjected to the 
 laws of the country where these lay.^ 
 
 The greatest difficulty lay in subjecting foreigners to the 
 laws that had to do with contracts and delicts ; but as the 
 sovereignty of States was more fully developed, and trade 
 became more complicated, both became necessary, and men 
 availed themselves for this purpose of a fiction of voluntary 
 submission to the laws of another country, notwithstanding 
 that such a fiction is, at the best, applicable in the former 
 class of cases only. 
 
 On this theory of the later Middle Ages all the authorities 
 may be said to be at one : this principle is adopted as one 
 that cannot be gainsaid — viz., that the lawgiver can lay down 
 
 f Cf. Wetzeli, Civil Process, § 40, not. 16, 26, 33. 
 
 8 The exclusive force of the Forvm rei siUe, which was a peculiarity of the 
 older law of Germany, and has often since that time been adopted, was, in 
 this view, of great importance (WetzeU, § 41, not. 46-49). 
 
§ 4.] 25 
 
 rules only for his own subjects, and only in relation to the 
 land that belongs to his own territory ; but in these cases he 
 has an exclusive right of legislation. It is, however, matter 
 of dispute which laws are laws of the person, and which again 
 are laws that concern things, and consequently in what cases 
 the law of the domicile or the law of the place where the 
 thing is situated is to be appUed. Then there were developed 
 the rules, which we shall have afterwards to discuss more 
 narrowly, that moveables follow the law to which the person 
 of their owner is subject, and that the form of any legal 
 transaction must be determined by the laws that are recog- 
 nised in the place where that transaction takes place. 
 (" Mobilia persona/m sequentur," or " Mdbilia ossibus in- 
 hcerent," and Locus regit actum.^) 
 
 The last rule in particular, as it may often bear some 
 reference to the substance of the legal transactions, gives rise 
 to the introduction of a third class of statutes, Statuta mixta,'^" 
 although this name, and these technical descriptions of 
 statutes as "personalia " and " reaUa," are first made use 
 of in later times in the sixteenth century, after the days of 
 Molinseus, Argentrseus, and others. 
 
 It was the verbal construction of the statute that, in the 
 Middle Ages as a rule, and in later times very frequently, 
 supplied the means of determining in cases where an off-hand 
 decision could not be pronounced, whether this or that law 
 applied to persons or to things, and whether, therefore, it was 
 to be held to apply outside the territory, but only to native- 
 bom subjects, or to be confined to its own country, but 
 applied there to natives and to foreigners alike. 
 
 It is well known that Bartolus decided the controversy as 
 to whether a statute, which provided that the eldest son should 
 succeed to his father's whole estate, had the former or the 
 later scope, by inquiring whether the law said " primogenitus 
 succedat" or "i/mmobilia venia/nt ad primogenitum;" in the 
 former case, the statute under consideration was to be held to 
 be one that dealt with persons, in the latter, one that dealt 
 
 » Of. e.g. B. Barthol. de Saliceto ad C. i. 1 ; Be. S. Trim,., No. 14. 
 1° On statvia mixta, see especially in later days Argentrseus, Comm. ad 
 Britt. leges, art. 218. 
 
26 ^§ *• 
 
 with things (Bartolus ad loo cit. 1. Cod. Be Sirnirm 
 TrmAtate). 
 
 And just as little can it be safely assumed that a particular 
 statute will not apply to foreigners on the authority of that 
 often-cited maxim, that no statute can create or destroy legal 
 capacity in a foreigner," a maxim which is generally intro- 
 duced with reference to the capacity of minors in a foreign 
 country. For nothing, for instance, is more certain than that 
 a statute which excludes foreigners from the acquisition of 
 land, is intended to be applied to foreigners ; and yet such a 
 statute might easily be considered as imposing upon foreigners 
 an incapacity to exercise certain modes of acquisition. 
 Many points, no doubt, were determined by a consensus of 
 authorities, as, for instance, the legal capacity of minors, and 
 subsequently the question according to what laws the form 
 of a testament was to be ruled. 
 
 "We shall discuss the views of international criminal law 
 that were taken in the later Middle Ages in a separate 
 section : these views have continued their influence, at least 
 in Germany, up to the beginning of the present century, and 
 it will therefore be best to treat of them in immediate con- 
 nection with the theories which are still entertained. 
 
 The canon law was from its nature not in a position to 
 lay down any propositions upon private international law : it 
 is the unity of the Church and the subordination of all to 
 one supreme power, that constitute its chief features. 
 Isolated provisions'^ that seem to tend in this direction, are 
 merely ordinances of the supreme ecclesiastical authority 
 with reference to the warrants and the competency of sub- 
 ordinate officials. Of course, discussions have often taken 
 place upon these passages, just as upon the passage of the 
 Koman law we have so often mentioned. The passage'* of 
 which most use is made expressly leaves the laws of the 
 different territories out of sight, and decides the validity of a 
 marriage by canon law alone.'* 
 
 " Cf. e.g. Bald. Ubald. in loc. cit. de SutrvmA Trinitate, No. 57. 
 1^ Cf. e.g. Clem. 2, de sent, 2, 11, C. 2, de constit., in vi. 1, 2. 
 '' C. 1, X. de spans, 4, 1. 
 " Cf. Savigny, § 382, Guthrie, p. 327 ; Sohaffner, p. 18. 
 
§ 5.] 27 
 
 C. Modern Times up to the Beginning op the Nineteenth Cbntuey. 
 
 §5. 
 
 There is little difference between the views of the 
 sixteenth, seventeenth, and eighteenth centuries and those 
 of the Middle Ages. The theory of statuta personalia, 
 realia, and mixta (the last of which was not recognised by- 
 all writers), was, as we have shown, involved in the views 
 of the later commentators and the Italian jurists of the 
 Middle Ages. This theory now for the first time acquired 
 a distinct technical name. 
 
 But when the idea of an universal supremacy in the pope 
 and the emperor was lost, and the different German and 
 Italian territories, formerly under the sway of a higher 
 authority, began, towards the end of the Middle Ages, to 
 acquire independence in greater and greater' degree, when 
 the legislative authority rested, not upon the autonomy of 
 the great landholder or of the free community, but upon a 
 State system that bore sway m some territory that was 
 independent of every other outside itself, the doctrines of 
 law had to be made to correspond to this new face of things. 
 This was attained in great measure, first, by the attempt 
 that was made to regard the new theory as a necessary 
 deduction from the limitations to a particular territory now 
 imposed on the jurisdiction of each State, and the mis- 
 apphcation of maxims of the Roman law that confined the 
 jurisdiction of a judge to a particular limit ; and secondly, 
 and more correctly, by regarding the application of foreign 
 laws as a concession by the native legislative power, with this 
 result, that aU persons who happened to be for the time in any 
 particular country, although they might merely be passing 
 through it, yet, so long as they were there, were completely sub- 
 ject to the legislative and executive authority of that country. 
 Both views — of which the first is represented by such men 
 as Argentrd and Hert,^ the second by Huber and John Voet 
 — are introduced under the most various modifications, and 
 are frequently treated together by the same writers, accord- 
 
 ^ Hertius, it is true, as far as the terms are concerned, throws aside the 
 division into Statuta personaKa, reaUa, and mixta y his views, however, really 
 contain precisely the same theory. Cf. Wachter, i. p. 281. 
 
?8 L§ 6. 
 
 ing as the import of tlie stcUutum personate and reale is 
 (tetermined^ either by its subject — i.e., on the consideration 
 whether the statute has reference to a person or a thing — 
 or by its operation — i.e., on the consideration whether it 
 is to be appHed beyond the territory for which it was made, 
 or only within that limit. Sometimes both definitions are 
 taken together, The definition of statuta mixta seems to be 
 the least firmly fixed of alL Some understand by the term 
 the statutes that have to do with legal acts ; some the 
 statutes that deal with both persons and things ; while 
 others again interpret them to mean statutes that have 
 reference to the forms of legal acts (Argentr., No. 16, 22. 
 Cf. J. Voet, §§ 2-4.) 
 
 Particular cases, too, are narrowly discussed. The works 
 of Eodenburg, John Voet, and the more recent writings of 
 BouUenois and Bouheir, supply a rich and subtle body of 
 casuistry ; and it may be remarked that on many isolated 
 points these authors, in so far as they have the same par- 
 ticular system of law most closely under their observation, 
 draw harmonious conclusions — as for instance, with regard 
 to the law of succession, the jurists of the north of France, 
 who take as the foundation of their discussions the old 
 French law of " Coutumes," which is at bottom pure German 
 law ; and, again, the authors belonging to the Netherlands, 
 who spend their labours more assiduously upon the law of 
 the property of married persons. We shall hereafter take 
 the opportunity of using this consensus of jurists, which has 
 frequently been recognised, to support our own point of view, 
 and occasionally employ it as a proof of the existence of a 
 consuetudinary law. 
 
 It is instructive to observe that neither of these theories 
 — neither that which derived the limitation of the appli- 
 cation of statutes to native subjects and to immoveables 
 situated in the country from the exclusive character of the 
 government of each State, nor that which extended the 
 authority of statutes de jure to all persons and things found 
 within the territory, and could only explain the undeniable 
 exceptions to this rule by considerations of comitas or 
 neighbourly intercourse — could serve as a foundation for 
 ^ See upon these definitions, P. Voet, De Statutis, cap, 2, No. 3. 
 
§ 5.] 29 
 
 comprehensive principles to regulate tlie conflict of laws. 
 The former is in open contradiction to that which' confines 
 the operation of laws to a particular local limit. Another 
 method of reconciling the theory of personal statutes with 
 the territorial theory, in this sense, that now the former and 
 now the latter is to be entirely left out of consideration, can 
 hardly be thought of ; for the territorial principle plainly 
 denies that any person can be accompanied into a foreign 
 country by the law of his natiye place. This territorial prin- 
 ciple — or, as the custom was, with regard to Eoman law, 
 to express it, the principle "extra territorium jus dicenti 
 impune non paretur" — is only employed as a shorthand 
 solution of difficulties suggested by the theory of personal 
 statutes, or in order to supply a principle which it was con- 
 sidered necessary to postulate, but which could not be estab- 
 lished in. any other way. 
 
 The second theory, which sets up as the source of the 
 application of foreign laws a voluntary concession by the 
 supreme authority of the State, will disappear into capricious 
 determinations if it is to take this concession purely as a 
 favour and an act of friendship shown to the foreign country. 
 It may easily be seen, in the writings of the different adher- 
 ents of this school, to what a length may be carried the 
 axiom that foreign laws are not to be allowed to prejudice our 
 own, or to operate disadvantageously to our citizens and our 
 State. That axiom is one by means of which an impassable 
 limit can be assigned to " comitas ;" and the only question 
 that remains is, whether this limit, if narrowly observed, 
 does not destroy altogether the sphere for the application 
 of foreign laws, or, if it cannot practically be destroyed, 
 shows it to be purely capricious. 
 
 With these two leading principles others are connected, 
 now in one way, now in another ; for example, statutes are 
 divided into favorabilia and odiosa, the latter being confined 
 in their operation to their own territory, the former being 
 allowed the like effect beyond it.^ But every regulation of 
 private law can be ranked under one of these categories as 
 well as under the other. 
 
 3 Barthol. de Saliceto, and after his time others, e.g. ad consult. Lune- 
 , c. 9. 
 
30 iro. 
 
 A statute by which women are excluded from succession 
 to land by male relations is obviously odioswm for the women, 
 but favorabile for the men ; and if a statute gives the rights 
 of full age on attainment of the age of twenty-one, it is 
 favorabile in comparison with the common law, in so far as 
 people of fuU age can do many acts which min ors have not 
 the capacity to do, but it is odioswm in so far as it with- 
 draws the rights of minority on the close of the twenty-first 
 year.* What is favourable to him upon whom any right is 
 conferred, seems to be unfavourable to him who is bound to 
 respect or to satisfy the legal right so created. 
 
 Other writers reject the division into statuta personalia, 
 realia, and mixta, but foUow the principles of the division, 
 as Heinrich v. Cocceii, Hert, and Hofseker. Their starting- 
 point is, that persons are subject to the laws of their native 
 country, things to the laws of the place where they are 
 situated, and acts to the laws of the place where they are 
 entered upon. The distinction is only a nominal one. 
 
 If one puts out of sight these subordinate differences, the 
 object for which the writers of this period strive is. this : to 
 discover the principle of distinction between various kinds 
 of statutes. It is obvious to them that there is a threefold 
 manner of subjection to the law of any territory : first, in 
 so far as the individual has his domicile there ; secondly, in 
 so far as he possesses property there ; and thirdly, in so far 
 as he enters upon transactions there. Thereupon it seems 
 to them, at the first glance, that there is nothing more natural 
 than to make the individual subject to the laws of his home, 
 the property to the laws of the place where it is situated, and 
 the transaction to the laws of the place in which it is entered 
 upon. The difficulty, however, lies here : that a law which 
 deals with the legal capacity of the individual and his status, 
 prescribes at the same time the conditions under which he 
 may acquire and convey property, and enter upon legal 
 transactions. To solve their doubts, some, such as Burgundus 
 and D'Aguesseau, wished to take as the rule for distinction 
 the words of the statute, in' the same way as Bartolus, who 
 has been so much blamed for it, had already done.^ 
 
 < Cf. Schaffner, § 16. 
 
 ' Burgundus, i. 1, n. 6. Neeesse erit statutvm, quo minores immolUia 
 
§ 5.J 31 
 
 Others have recourse to considerations of practical utility 
 or to authorities ; and, others, a very small minority, make 
 it their object to ascertain the true scope of the statute. 
 Duplessis takes this course (Consult. 26, t. ii of his works, 
 pp. 151-52), although, upon the whole, he is inclined to follow 
 the more superficial definition of D'Argentr^ : " Une attention 
 exacte sur la nature, I'objet et le motif de cJiaque statut en 
 particulier est souvent le moyen le plus propre pour deter- 
 miners si c'est la r4alit4. ou la personality qui y domine; s'il 
 suit la personne ou s'il est re,nferm,4 dans les homes du 
 territoire." And again (Consult. 47, t. ii. p. 299) : " Oe qui 
 caracterise un statut persorvnel, c'est quand il concerne 
 directemevt I'interit de la personne, et non pas la conserva- 
 tion de la chose, si ce n'est d'une ma/ni^re subordonn^e et 
 relative a la personne, il faut, que le motif, qui I'a introdvAt 
 soit fond4 prvneipalem,ent sur la condition des personnes pour 
 lesquelles il est fait." 
 
 It is to be noted that a decisive importance is attributed 
 to the motive of the statute, and whether it has been enacted 
 with a view to persons or to property ; and, in isolated in- 
 stances, a distinction of the same kind is to be found taken 
 by other authors, although it is not at aU in keeping with the 
 principles which they postulate. D'Argentrd, for instance, 
 treats the question, whether the prohibition of donations 
 
 alienare vetantur, non personm, sed rebus vpsis injungi — conditio minoris non 
 est in dispositione, sed tantum in enunciatione. 
 
 D'Aguesseau, CEuvres, T. V. S.,p. 281. Le veritable principe en cettematilre 
 est, qu'il faut distinguer, si le statut a di/reclement les biens pom otjet, — ou si 
 au contraire, toute V attention de la loi s'estportde vers la personne, pour didder 
 en girUral de son hahiliti ou de sa capacitd genirale et absolue. This view is 
 quite distinct ; but to demonstrate its falsity more clearly, take the version of 
 the author of the French Eepertory of Jurisprudence. Voce Autorisation 
 Maritale, sect, 10, No. 2 : " Pour juger, si un statut est rhl ou personnel, il ne 
 faut pas en considdrer "les effets iloignis, les corisiquences ulUrieures: autrement 
 comme il rCy a pas de statut personnel, qui ne produise wn, effet qvslconque par 
 rapport aux biens, ni de statut riel qui n'agisse par contre-coup sur les perr- 
 sonnes, il faudrait dire, qu'il n'y ait point de statut, qui ne soit pas tout h la 
 fois et personnel et rielj ce qui serait absurde et tendrait h Uablvr une guerre 
 ouverte entre les coutwmes : que faut il done faire ? H faut ^attacker h I'objet 
 principal, direct et immMiat de la loi et oublier ses effets." So the thing to be 
 considered is, not the general scope of the statute, but the subject with which 
 its letter deals. 
 
32 L8 o- 
 
 between married persons is a real or a personal law, pronounc- 
 ing it to be the latter so long as he is engaged with the 
 prohibition of the Koman law, and the former in connection 
 with the corresponding title of the " Goutwmes." He says : 
 " Fvnis prohibendarwm donationum conjugalium hahet per- 
 sonales qvMsda/m consider ationes, quod leges 1 avd 2 D. de 
 donat. inter virwrn et uxorem indicant, et quia diversi generis 
 donationibus non ecedem leges positoe sunt, sed GoTisuetudin- 
 arioB causcB de prohibendis his swmwntur potius a rebus, 
 gentili pecv/nia et propagatione famUiarwrn, quae res reales 
 sunt, non ut illce juris Romani a personis swmtce — cum 
 di^ositio prohibitiva res potius respicit et hceredum ceternam 
 in immobilibus successionem." 
 
 This distinction between the prohibition of these donations 
 in Roman law, which had for its object the purity of the 
 married life, and the prohibition in German law of the aliena- 
 tion of the family property by a husband in favour of his 
 wife, touches the true point ; and it is illustrated by the fact 
 that all the writers who take German law as the starting- 
 point from which to discuss the conflict of laws, treat this 
 prohibition as a real statute, while those who are more 
 familiar with Roman law regard it as personal. 
 
 If the rules laid down by the adherents of the theory of 
 statuta personalia, realia, and mixta are examined in detail, 
 they are found to correspond in a very few points, and this 
 correspondence is, upon closer examination, often found to be 
 merely apparent. There is no real substantial ground of dis- 
 tinction to take up. It is quite true that a conflict of laws 
 occurs, because persons by virtue of their domicile belong to 
 a particular jurisdiction ; that things, again, belong to a juris- 
 diction determined by their local situation ; and acts seem to 
 stand in what looks like a natural and close relation to the 
 law that is recognised in the place where they are entered 
 upon. But granting so much, all that has been disclosed is 
 the state of facts in which the rules of international law flnd 
 their origin, the principle of law that is to give rise to these 
 rules has not been reached. The real and substantial prin- 
 ciple can only be found by looking back upon the nature of 
 the connection between a person, a thing, and an act, on the 
 one side, and a State and its laws, on the other. 
 
§§ 5, 6.] 33 
 
 It was thought sufiSciont, in the various cases that occurred, 
 to postulate the application of the laws of the domicile of the 
 person, or of the local situation of the thing, or of the place 
 where the act was done. And in this way not only did the 
 adherents of this theory contradict one another, but as their 
 rules — although common-sense often led them to sound con- 
 clusions — ^were at bottom quite arbitrary, each author often 
 fell into plain contradictions of his own determinations, as 
 Wachter has clearly pointed out.^ 
 
 It wiU be useful to subject the different authors of this 
 period to a short review. We shall at present not go further 
 into details than is necessary to exhibit the true meaning of 
 the general principles adopted by each author ; the details 
 will be considered subsequently when we come to discuss 
 particular chapters of law. The technical expressions used 
 by authors in this subject have so many different meanings, 
 that the points of agreement and of difference of the various 
 authors wiQ be made plainer to the reader by this separate 
 treatment of them, than if the adherents of each doctrine 
 were grouped together as that doctrine is taken up. 
 
 §6. 
 
 (1.) U. C. B. D'Aegentb^. 
 
 D'Axgentrd treats of the conflict of laws in his Commentary 
 upon the Customs of Brittany, ia connection with the 218th 
 article of these customs, which runs as follows : — S?t^ 
 
 " Toute personne pourvue de sens peut downer le'^tiers de 
 son heritage a autres qu'd ses hoirs, au cas qu'elle ne ferait 
 pas fraude contre ses hoirs." 
 
 Our author inquires, in his commentary on this article, 
 whether the same rule is to be applied to real property in 
 another country belonging to a Breton. 
 
 The rules of the " Goutumes de Bretagne" are the rules 
 which Argentrd has exclusively in view in the course of his 
 discussion of the conflict of laws, and these consist for the 
 most part of rules of the older German law or of feudal law ;i 
 
 « Wachter, i. § 270 ; Savigny, System viii. § 361, Guthrie, p. 142. 
 ^ For example, as a rule, debts attach only to the moveable property that 
 belongs to the estate of a deceased person (Arg. gl. 5, ad. Art. 219 ; Art. 561, 
 
 D 
 
34 [§ 6. 
 
 it follows, therefore, that Argentr^'s conclusions can only be 
 very cautiously applied to the rules and institutes of common 
 law. But if one has the skill to discriminate between the 
 institutes of German law, which are especially in his view, 
 and these more general principles, the accuracy of his con- 
 clusions on different isolated points will, in spite of the falsity 
 that often affects his premises, be easily appreciated. Ac- 
 cording to Argentr4 every legal relation of immoveables is 
 determiued by real statutes, the lex rei sitce; but every rule 
 which on the whole affects the person is a personal statute, 
 and can only be applied ia accordance with the law of that 
 person's domicile. Where the question is as to the compet- 
 ency or incompetency of a person to perform a particular act, 
 the statute there is a statutwm mixtum, which is treated by 
 Argentr^ just as a real statute. This definition, and the con- 
 clusion which he founds thereon, are undoubtedly general 
 rules drawn by him from the particular case that is then 
 under his notice — ^viz., the obHgation, drawn from German 
 law and found in Brittany, upon married persons to bestow 
 their property upon each other for the benefit of their next 
 heirs. At the same time, Argentr^ follows the rule, " Mohilia 
 ■ossibus inhcerent" (No. 31), and applies to moveables the 
 rules of law that hold good in the domicile of the owner. 
 
 We can trace the origin of this theory ia the way pre- 
 viously indicated. The legislator of the domicile of any 
 person can, says Argentrd, make what provisions he pleases 
 for that person, and, on account of the character so imposed 
 npon him, that power of the legislature follows that person 
 wherever he goes ; on the other hand, however, the legislator 
 can make no rules for immoveables which are not in his 
 territory ; and from this principle Argentr^ goes on to infer 
 that, if a statute provides that a donation shall only be good 
 to the extent of one-third of the donor's property, real pro- 
 perty in a foreign country can never be taken into account 
 in computing this third, because the legislator had neither 
 the intention nor the power of makiug law for anything but 
 immoveables situated in his own country. 
 
 gl. 1, c.) ; the title of heir infers no universal succession (Art. 617-18) ; and 
 in the Gloss, to Art. 277, No. 4, it is' said : "Nam prcBsvmptio, immo neces- 
 sitas veritatis hahet, quod omnia feudaUa sunt in Britannia." 
 
§6,7.] 35 
 
 It has abeady been remarked that the theory of personal 
 and real statutes by no means follows from the principles 
 which Argentr^ assumes (p. 28); it is obvious that it entirely 
 fails to supply a principle for the division into statuta realia, 
 personalia, and mixta, the last of which are simply treated 
 as real statutes. One cannot help, however, admiring the 
 fine practical sense with which, as we shall see in the sequel, 
 Argentr^ manages to hit the truth in particular cases in 
 spite of his inadequate theory. Otherwise Argentr^ occu- 
 pies himself mainly with the law of persons, the law of 
 succession, and the law of married persons' property. Eeal 
 rights and the law of contracts are scarcely touched by him. 
 
 (2.) BxJBGUNDtrs. 
 
 Burgundus is an adherent of the statute theory, which he 
 rests on the same foundation as Argentrd It is not quite 
 clear what general rule Burgundus means to lay down for 
 distinguishing real and personal statutes. He rejects the 
 weU-known determination of Bartolus in reference to the 
 conflict of a statute regulating the law of primogeniture with 
 the common law, and prefers to direct his attention to con- 
 sidering whether the provisions of a statute with regard to 
 the conditio of a person are laid down in dispositione or in 
 eiiunciatione. According to other passages, again, every legal 
 relation that imposes an obligation is a personal statute ; a 
 real statute is one that gives rise to a real action; and a 
 mixed statute one which gives rise to both a personal and 
 a real action. In so far, then, as real rights in immoveables 
 are concerned, — ^the law as to moveables being determined 
 by the domicile of the owner (i. §§ 40-43, p. 68, iv. § 26) — 
 the law of the place where the thing is is the ruling law ; but 
 in so far as personal obligations are concerned, although these 
 obligations may be in connection with immoveables, the law 
 of the domicile of the person must be applied (i. § 6 ef seq.) 
 Thus there foUows this strange practical result, that you may 
 have a person who, by the law of his domicile, is a minor, 
 with fiiU power to grant a good conveyance of landed estate 
 that is situated in another country by whose law he is of fuU 
 
86 [§§ 7> 8. 
 
 age, while he is not able to undertake a personal obligation 
 to execute such a conveyance.^ 
 
 To this Burgundus adds the proposition (iv. § 7), that the 
 laws of the place where any legal transaction is carried out 
 are the authority that must regulate the forms of the con- 
 tract : " Nam, lit personce, quamdiu in territorio versantur, 
 ejusdem legibus sunt ohnoxicB, ita et actus personales — citra 
 mentem consuetudinis vniri non possv/nt" 
 
 In two cases Burgundus reaches his determination by con- 
 sidering the scope of the statute : in treating of donation 
 and succession between spouses, where he decides in agree- 
 ment with Argentrseus (i. No. 40) ; and again, subsequently, 
 in some discussions upon the law of obligation (ii. Nos. 23, 
 24), where he attaches importance to the fact whether the 
 statute was passed in favorem debitoris or creditoris. It is 
 easy to see that this theory is entirely arbitrary and inconse- 
 quent. The distinction, however, between immediate real rights 
 in a thing, and the personal obligations undertaken in respect 
 thereof, is worth attention ; although Burgundus makes far too 
 extensive a use of it, as the instance given above of his opinion 
 that the capacity of disposing of a thing depends upon the 
 lex rei sitce shows. 
 
 §8. 
 
 (3.) EODENBUBG. 
 
 Rodenburg, too, founds the theory of statuta personalia, 
 realia, and mixta upon the proposition that the legislator 
 cannot lay down rules for things that are situated in a foreign 
 country, or for persons who are domiciled there (Tit. i. cap. 3, 
 No. 1), although he is forced to admit that it is possible to 
 lay down such rules indirectly (I. c. No. 5).^ Personal 
 statutes, according to Rodenburg's view, confer on the person 
 a quality that adheres to him ; otherwise, a man might be a 
 minor in one place, and of full age in another. 
 
 1 See, on the other hand, Abraham a Wesel, ad Nov. Gonswet., Ultraj., Art, 
 13, No. 25; Merlin, R6p, Vo. Majority, § 5, On ne concsvra jamais, oomment 
 une tradition faite sans litre et sans aiicune cause peut Ure valoihle. 
 
 2 The result of this would be that, in the ultimate resort, the legislator 
 ■would be able, by the force of his own enactment, to put his laws into 
 operation beyond his own territory. 
 
.§§ 8, 9.] 37 
 
 Kodenburg defines the statutvm mixtum in the same 
 way as Burgundus ; but in the application of this definition 
 he is very far from agreeing with him, interpreting the. 
 restrictions upon the ahenation of a minor's estate by the 
 lex domicilii of the minor, instead of referring them, like 
 Burgundus, to the lex rei sitce. Upon the whole, Eoden- 
 burg holds to the words of the statute — " Quid in disposi- 
 tionem statuti ceciderit " — without caring to consider, " qua 
 ratione cujusve personce intuitu," the law may have been 
 enacted ; but yet he has a strong argument upon the inten- 
 tion of the legislator, and on the question whether he had 
 persons or things in view (Tit. ii. p. 2, cap. 4, § 5). In 
 this connection, Kodenburg lays down the proposition, 
 " Mobilia perscmam sequvmtur" (Tit. ii. p. 1, cap. 2, § 1 ; 
 ii. p. 1, cap. 5, § 16), but without fully realising the conse- 
 quences of this maxim, as will appear on consulting the 
 passage last cited. 
 
 Kodenburg's researches, which set out from a discussion 
 of the rights of married persons, and are therefore principally 
 directed to to the questions of capacity, succession, and 
 property of married persons, and have but little concern with 
 the law of contracts, are yet sorely deficient, like those of 
 Argentr^ and Burgundus, in a substantial and consecutive 
 ground plan, although in many isolated points they are 
 acute and subtle. For instance, Eodenburg carries out 
 logically the distinction between personal and real grounds 
 of action in the sphere of married persons' property, a dis- 
 tinction already made, no doubt, by Burgundus, but thrust 
 too much into the foreground by him. The great collection 
 of actual cases, in which the decisions of the law courts of 
 France and the Netherlands are given, favourably distinguishes 
 this work. 
 
 §9. 
 
 (4.) P. VOET. 
 
 Voet's work upon the statutes deals with our subject in 
 sections 4, 9, and 11. 
 
 Taking the division into statuta personalia, reaUa, and 
 nnixta as fundamental, he goes on to deduce from the inde- 
 pendence of different territories this result — that a personal 
 
38 [§§ 9, 10. 
 
 statute, strictly construed, will not aifect subjects of a State 
 who are temporarily absent in another State ; while, at the 
 same time, no legislator can lay down rules for foreigners 
 who happen to be for a time in his dominions, as regards 
 their essential characteristics — i.e., their capacity or inca- 
 pacity. From this it foUows that the legal capacity of 
 these foreigners is not to be determined either by our law 
 or by the law of their home. 
 
 With Voet, upon the whole, a more accurate conception 
 of the independence of different territories leads to complete 
 confusion, so that his true meaning is in many cases hardly 
 discoverable, and nothing is left to him at last, when juristic 
 considerations are exhausted, but an appeal to the hv/manitas 
 and coTnitas of other Powers. It may be conceded, however, 
 that Voet very often hits the truth, but certainly- not because 
 of the grounds on which he reUes, for these, on the contrary, 
 may often be turned against him. 
 
 §10. 
 
 (5.) HUBER. 
 
 With Huber, even more conspicuously than with Yoet, the 
 independence of different territories comes to the front. The 
 laws of a State, as Huber lays down at the very outset of his 
 inquiry, have no force except within that State ; but they are 
 good there for all persons who are found within it. The strict- 
 ness of this axiom is only modified by the friendly intercourse 
 that exists among the different States, and by the comitas 
 which they observe ; in consequence whereof, the application 
 of foreign laws is permitted, in so far as it is not repugnant 
 to the supremacy of the sovereign power in our State and the 
 rights of our subjects. 
 
 According to Huber's view, it is consistent with these 
 principles that the laws of the place where any legal trans- 
 action is entered upon should determine its validity, just as 
 the qualities of persons, which are stamped upon them in the 
 same way, should be determined by the law of their domicile, 
 while all the legal relations of immoveables should be settled 
 by the laws of the place where the thing is. In obedience 
 to the last rule, Huber appUes the lex rei sitce, not only to 
 
§§10,11,12.] 39 
 
 testate and intestate succession in immoveables, but even to 
 contracts that have to do with immoveables. 
 
 It is plain that Huber's theory cannot be deduced from 
 the principles which he postulates. The first principle has 
 only a negative force, and the second, as it is understood by 
 Huber, is no doubt well fitted to demonstrate the motives 
 by which the application of foreign laws is, as a general rule, 
 determined, but cannot supply any solution for individual 
 problems. 
 
 The clearness and brevity with which Huber speaks give 
 his work a notable advantage. Besides that, in his character 
 of Exsenator supremcB curia} Frisice, he communicates to his 
 readers cases that have actually been decided. 
 
 §11. 
 
 (6.) Heet. 
 
 AH that needs to be said of Hert's theory has been said 
 already. The vaUdity of the lex domicilii, in relation to the 
 status and capacity of persons, he attempts to establish upon 
 the consideration that the sway of a State over foreigners is 
 confined to the transactions they enter upon in its dominions, 
 or to the immoveables which they possess there. Only, 
 if the transactions of foreigners entered upon in our country 
 are to be subject to the authority of our State, it is difficult 
 to see how their persons are not also to be made subject to it 
 while they remain in our State. 
 
 It is worth remarking that Hert (sect. iv. §§ 31, 32) 
 introduces jius natwrale to settle some cases ; but it is not 
 clear what he understands thereby as regards the rights of 
 different territories. 
 
 §12. 
 
 (7.) J. YOET. 
 
 J. Voet is conspicuous by a trenchant and logical adher- 
 ence to the idea of an exclusive sovereign and legislative 
 authority in each separate territory. He lays down that in 
 strict law no appeal can be made in a foreign court to the 
 lex domicilii as determining the status and capacity of a 
 person. Voet is therefore of opinion that, except in so far 
 
40 [§12. 
 
 as special exceptions have been accorded by the free per- 
 mission of the authority of the State, the judge, who can 
 only carry out the will of his own State, must apply none 
 but the law of his own country. He treats as such excep- 
 tions, sanctioned by long practice, the rules that moveables 
 are regularly judged by the law of the domicile of the 
 persons that own them, and the external forms of a legal 
 transaction by the laws of the placQ where it is entered 
 upon (§§ 11-15). Voet cannot therefore be charged 
 with illegitimate deductions, but it may be asked whether 
 it is correct to say that all theories are insufficient, and 
 that it is necessary to appeal to such an universal prac- 
 tice. At the same time, the exception, which Voet in the 
 ultimate results of his theory wishes to introduce by the 
 assumption that, where no prohibitory laws stand in the way, 
 the application of foreign law to any contract on which they 
 may be entering depends upon the will of the parties them- 
 selves, is, from his own point of view, improper ; for, by his 
 own theory, with the exception of the special cases sanctioned 
 by usage, aU. laws are prohibitory, and if they permit in this 
 or that legal relation any compacts that parties may desire, 
 then, in the case of such a bargain, we are no longer con- 
 cerned with the solution of a conilict of laws, but with the 
 interpretation of the wiU of the parties. Voet, however, 
 confounds the immediate statutory consequences of a trans- 
 action with the case of a tacit agreement, an inexact manner 
 of thought which enables him to escape from some con- 
 sequences of his principles ; as, for instance, in thei subject 
 of the property of married persons, in which he bases the 
 general validity of the lex domicilii of the spouses upon a 
 tacit agreement. Besides the chapter specially devoted to 
 the conflict of laws, Voet, in the other parts of his Comment- 
 ary on the Pandects, gives many other judgments on different 
 points which certainly are often irreconcilable with the exclu- 
 sion of foreign laws which he postulates, but are at the same 
 time conspicuous for the clearness and precision peculiar to 
 this writer, and for his fine practical instinct. 
 
§§ 13, 14.] 41 
 
 §13. 
 
 (8.) BOTJHIEE. 
 
 The theory of real and personal statutes assumes a peculiar 
 shape in Bouhier's works. 
 
 While he assigns as grounds for the application of foreign 
 laws the goodwill that different nations bear to one another, 
 and the general benefits that result from it, he lays down the 
 following rules : — 
 
 1. Every statute which deals with incorporeal and unassign- 
 able rights is personal ; that is to say, is valid beyond the 
 territory for which it is enacted. 
 
 2. The same property is to be ascribed to a statute which 
 rests upon a tacit or an express agreement of parties, 
 and also 
 
 3. To a statute which, out of considerations of public 
 policy, lays some restraint upon all persons who are domiciled 
 in the dominions of the State. 
 
 4. Lastly, every statute is parsonal to the effect described, 
 which, enacts formahties for a legal instrument (chap. 23, 
 Nos. 14-39). All other statutes Bouhier regards as real, and 
 only vaUd within the territory for which they are made ; but 
 to this he has to add (chap. 23, Nos. 90, 91) — 
 
 (a.) The personal statute, which is permissive, is to be 
 subordinate to the real statute, which forbids. 
 
 (6.) The personal statute of the domicile is to be preferred to 
 the personal statute of the place where the thing is situated. 
 
 One can at once discover that the leading rules quoted 
 above are only abstractions from particular cases, and 
 are not universally applied even by Bouhier. For instance, 
 by the first rule unassignable servitudes over heritage would 
 belong to the class of personal statutes, although Bouhier 
 himself (chap. 29, No. 29) admits that the reverse is true. 
 In spite of this fundamental error, his work is rich in 
 valuable inquiries into detaUs. 
 
 §14. 
 
 (9.) BOULLENOIS. 
 
 Boullenois's work furnishes a continuous commentary upon 
 Kodenburg's treatise, and gives in its adherence to the 
 
42 [§§ 14, 15. 
 
 principles there laid down, which Boullenois subordinates to 
 the leading principle of the common good of nations (i. p. 
 49). It is remarkable that although Botdlenois, Hke Roden- 
 burg, in classifying statutes lays stress upon the words of 
 the enactments, he does not leave their motive out of sight. 
 
 His accurate treatment of detaUs, his comprehensive 
 acquairitance with the various forms of French customs and 
 usages, the delicate tests which he appHes to the decisions 
 of the French courts, which are copiously cited by him, and, 
 besides all this, the independence with which he criticises 
 the results obtained by Rodenburg, although, upon the whole, 
 he adopts them, give Boullenois's work a permanent value : 
 there is, however, often a discursive reasoning, losing itself in 
 vague conclusions, that disturbs this favourable impression. 
 
 §15. 
 
 (10.) Alef. 
 
 Among the many dissertations devoted to our subject, or 
 more or less concerned with it, that of Alef is worth remark. 
 The author assails, first of all, the ordinary statute theory. 
 He points out how divergent the opinions of authors are as 
 to whether this or that statute is to be reckoned in this or 
 that class. The distinction between statutes, in the ordinary 
 sense, must be in the end sought for in the words of the 
 enactment, and these must give way to the wUl of the 
 legislator; for it cannot be that a statute should, for 
 example, be held to have a different meaning and a different 
 effect, according as it should on the one hand refuse to its 
 subjects the capacity of testing upon their property, or on 
 the other provide that an estate should only be transmitted 
 ab intestato. Accurately considered, an enactment can never 
 be said to have regard merely to lifeless things, but must 
 always be directed to the legal relations of persons in con- 
 nection with these things. 
 
 If these attacks upon the ordinary statute theory are 
 clearly laid down, the same cannot be said of AJefs own 
 theory. Proceeding on the axiom that the power of the State, 
 on the one side, must always be paramount within its own 
 territory, and, on the other, must always be confined to it, Alef 
 
§§ 15, 16.] 43 
 
 deduces the application of the law of the country to the 
 status and capacity of foreigners, and to the forms of legal 
 contracts made in the country (Nos. 28-31), and demands 
 that, in the case of contracts, the laws of the domiciles of the 
 contracting parties, and the laws of the land in which the 
 contract is made, should be recognised in reference to the 
 question of capacity. The objection to this doctrine — ^viz., 
 that by it the laws of the domiciles wiU have effect given to 
 them outside their own territory, since it is possible that an 
 act vahd by the laws of a foreign country may be by them 
 declared invahd — is attempted to be met by Alef with this 
 observation, which is undoubtedly wrong, that the incapacity 
 of a person for any transaction is something purely negative, 
 and that therefore the vahdity of the law of the domicile 
 need not be invoked to maintain it. It is plain that this 
 theory is not only incomplete, for he has hardly anything 
 to say of rights of property, but rests entirely on arbitrary 
 assumptions, whose results stand in open contradiction to 
 well-known necessities of commerce and actual fact. 
 
 The other writings of this period that touch upon our 
 subject contain, upon the whole, mere repetitions of doctrines 
 drawn from those already mentioned. Any views worth 
 notice that may be found here and there, will be discussed 
 hereafter when we come to treat of the various legal doc- 
 tiines ; we need only mention that, according to Hofseker's 
 treatise (De EfiScacia), the express will of the legislator, or 
 that will as it may be discovered by construction of his laws, 
 to which the judge who pronounces on any case is subject, 
 is to rule, and, in subsidium, he proposes to appeal to the 
 Eoman law. But, since Hofseker does not give any more 
 exact principles for such an interpretation of laws, and 
 besides, as Wachter has pointed out (ii. p. 20), loses himself 
 when he comes to details, his axiom, which is undoubtedly 
 true, cannot be considered of any very great importance. 
 
 Z>. The Most Eecent Tijies. 
 
 § 16. 
 The statute theory, which, as we have seen, was generally 
 held in the eighteenth century to be the true theory, cannot in 
 
44 L^io, iv. 
 
 our day make any claim to validity. No doubt it is still 
 to be found in the older text-books of Eoman and German 
 private law; but tlie authors wlio are specially concerned 
 ■witb international law long ago abandoned it, an example 
 tbat bas been followed by the more modem treatises. It is 
 a recognised principle in all authorities that each individual 
 State may, by virtue of its sovereign power, shut out foreign 
 law from its own territory altogether.^ On this question, 
 however, two leading divisions of opinion exist : one party 
 holds that the apphcation of foreign laws may be traced to 
 general principles ; the other gives up the attempt to lay 
 down any general principles, and only recognises the par- 
 ticular cases of such application. 
 
 §17. 
 
 Of the authors of the latter class, Fcehx attaches himself 
 most closely to the statute theory. He starts with this 
 principle : that, in consequence of the sovereign power that 
 belongs to each State, the apphcation of foreign laws may 
 be entirely excluded ; and where it is admitted, it rests upon 
 a voluntary and friendly concession by the sovereign power, 
 out of regard to the mutual advantages of such a course, 
 ' — upon the comitas nationum, as earlier writers called it. 
 Then, without an attempt to discover any general principle 
 for this comitas, and rejecting all universal axioms, especially 
 the older theory of statuta realia, personalia, and mixta, he 
 confines the task of any author on the subject to this : that 
 he shall classify the recognised cases in which foreign law is 
 to be applied, in conformity with recorded decisions and the 
 views of different authors ; shall pronounce what the usage 
 is ; and shall extend that usage to analogous cases. He takes, 
 however, the division of laws into statuta personalia, realia, 
 and mixta, as a starting point, not because he considers that 
 division exhaustive, but because it is practically useful, and, 
 
 1 The contradiction raised by Schaifner (p. 29) is only apparent. When 
 he says that laws can only rule in cases which have, from first to last, been 
 developed within their own territory, he means thereby that the laws of any 
 territory cannot in reason shut out the application of foreign^laws entirely. 
 But with Struve the contradiction is seriously treated (pp. 22, 23). 
 
§ 17.] 45 
 
 taken up as it was by earlier author^, has been of real use 
 in the historical development of the view that is recognised 
 by himself (i. No. 20) ; abandoning any attempt to define 
 personalia and realia — for the definition which he gives, 
 viz., that personal statutes are those that follow the indi- 
 vidual wherever he goes, while real statutes have no force 
 beyond a particular territory, is a mere formal description to 
 illustrate their operation — he includes among the statuta 
 personalia or realia those laws which have been assigned to 
 the one class or the other by the majority of earlier authors, 
 although with the widest differences in detail ; and among 
 statuta mixta he includes not merely the laws which deal 
 with the legal aspects of business dealings generally, but also 
 those which relate to procedure and to crime, because these 
 laws are to be considered as the consequences of men's dealings 
 with each other. 
 
 If Foslix's theory is to be adopted, he has no doubt 
 carried it out consistently by stringing together the different 
 cases that have been assigned to these three kinds of statutes, 
 without any inner or real link among them, as well as by 
 referring to the numerous passages, collected with extra- 
 ordinary care, which he cites, and the unanimity of authori- 
 ties and of judicial determinations thereia demonstrated. 
 But if this unanimity, which Foelix so often assumes, is more 
 closely examined, it often turns out that he has had no 
 regard for the grounds of the opinion or judgment which he 
 cites, but only for the result of that opinion or judg- 
 ment upon the particular case ; and besides that in 
 such cases a more searching examination wUl frequently 
 reveal contradictions, it is inevitable that the reader should 
 feel convinced that the whole system of private international 
 law consists of isolated and arbitrary postulates, and has no 
 scientific foundation to rest upon at all. By the division 
 of the subject he has adopted, we find, in the first place, that 
 the laws which dfiial with procedure and with crime, in 
 which the public law of a sovereign State may be exhibited, 
 are treated ui^der/tlie inadequate conception of a consequence 
 of men's dealings with each other, a conception which would 
 include most tilings that are to be found in man's existence ; 
 and, in the second place, that it is much more difficult to 
 
46 L§ 17. 
 
 discover tlie true meaning of the author. Except in his 
 treatment of the law of procedure, which is the most suc- 
 cessful part of the treatise, there is no division of his work 
 that corresponds with the ordinary systems of positive 
 law ; and the reader is consequently forced to inquire 
 under which of Foelix's artificial definitions any case must 
 be reduced, before he can discover where he is to find a 
 discussion of it.^ 
 
 In spite, however, of this defect, the work is many respects 
 excellent. There is to be found a store of very valuable 
 materials in the numerous references, decisions, and in the 
 examples of legislative enactments that are adduced — and 
 there are set out in this work most concisely and plainly the 
 legal principles of almost all civUised States upon private and 
 criminal international law — and a great service has been 
 rendered by the interpretation which the author gives of 
 the provisions of French statutes touching on international 
 matters, a subject which very closely concerned him. The 
 notes of Demangeat, in the fourth edition, furnish many very 
 acute corrections and explanations, the editor adopting 
 Foehx's views upon the whole, but subjecting the details to 
 an iudependent criticism. 
 
 Wheaton's treatment of the subject is similar. He, too, 
 makes that comitaa which is observed by the different States, 
 as it appears ia the decisions of courts of law and the theories 
 of legal authors, the foundation for the appHcation of foreign 
 laws. Wheaton makes no use of the terms of the statute 
 theory in the various isolated propositions which he lays 
 down, and, iadeed, there is no deduction of these propositions 
 from general principles at aU. Wheaton's view of the para- 
 mount apphcation of the Lex rei sitae is explained, as wiU 
 afterwards appear, from the fact that he takes his stand on 
 the ground of the common law of England and America. 
 The whole discussion only occupies one part of Wheaton's 
 book, consisting of not a fourth of the whole. 
 
 1 For example, a reader will hardly discover for himself that the doctrine 
 of the necessity of a husband's concurrence in his wife's acts, the curatorial 
 consent that is required of him, is treated of in a passage that takes up the 
 question of the forms of contract. 
 
§§ 18, 19.] 47 
 
 § 18. 
 
 Burge, too, declines to enunciate a general principle, and 
 commits the decision of particular questions to the instinct 
 of the lawyer (i. p. 11). No doubt he lays down a number 
 of particular rules (p. 25), but these propositions — mainly 
 borrowed from Boullenois, and, although quite unconnected 
 and founded upon many different theories, still assumed to 
 be capable of immediate appHcation — contain nothing but 
 specialities, and, as may be suspected from this description 
 of them, are often self-contradictory. But yet this most 
 comprehensive work, consisting for the most part of a com- 
 parison of the different systems of law that are recognised 
 throughout the British Empire, is remarkable for the wonder- 
 ful knowledge of the most various systems of law and of 
 legislation displayed by the author, for the wealth of legal 
 cases and decisions that are cited and criticised with acute- 
 ness and great independence, and for many excellent discus- 
 sions of different questions.^ In these discussions, Burge 
 can use the considerations on which the laws of the different 
 States rest most skilfully in reference to their international 
 relation, although the treatment is not always consistent,^ 
 and instead of juridical principles, he has to invoke the 
 assistance of considerations of expediency and general appro- 
 bation.* 
 
 §19. 
 
 Story avoids any statement of a general principle, — a 
 matter on which there is perpetual discord, — and, like Burge, 
 proposes merely to illustrate, criticise, and establish more 
 decidedly the law that is recognised (§ 16). He only avails 
 himself of the expressions, statwtv/m personale, reale, and 
 mioetum, to describe the effects of particular statutes ; and as 
 he developes the principle of the paramount supremacy of 
 
 ^ See, for example, the discussion on the conflict of laws on the question 
 of marriage. 
 
 2 See, for example, i. p. 132, and i. p. 210, where different determinations 
 are given upon the personal capacity for legal acts. 
 
 * See, too, the declaration of Mittermaier in Mittermaier and Zacharias 
 ZeitschrLft ftir Eeohtsw. und GesetzgeTi des Auslandes, Vol. II. p. 283 ; 
 V. Mohl. Staatsw., i. pp. 445-46. 
 
48 [119. 
 
 every State in its own territory to its logical conclusions, he 
 deduces the application of the laws of other countries from 
 provisions to that effect in the laws of the country that 
 allows them to be applied. Such provisions, which must 
 often be put into practice by reason of the mutual profit of 
 the various States, may be, he says, inferred although not 
 expressed ; and it is only when foreign laws are at variance 
 with the interest of the home country that they are univer- 
 sally admitted to be inapplicable. 
 
 Story, then, as far as the leading features of his theory are 
 concerned, is an adherent of Huber, but in details is highly 
 independent. As may well be understood, he adheres very 
 closely to the American and EngHsh Common Law in enun- 
 ciating his own views, but he does not fail to take into view 
 the grounds that foreign authors, especially the older authors, ' 
 have assigned in support of this or that theory ; at the 
 same time, there is no attempt at an historical development 
 of the subject. He gives in a masterly fashion very many 
 reports of interesting cases decided in England and America, 
 setting forth the facts and circumstances of each most clearly, 
 and criticising with great subtlety the details of the grounds 
 of judgment in each. This is most conspicuous in his treat- 
 ment of the subject of " foreign contracts " — a subject that 
 includes the greater part of the law of obligations, and seems, 
 as a very important division of the whole, to be treated con 
 amove. 
 
 Less successful, however, are his discussions on procedure ; 
 and when he comes to deal with the important questions of 
 capacity of persons and their status, and also of marriage, ■ 
 the want of one leading principle makes itself very much 
 felt, and in these questions the only resource for the' author 
 often comes to be, that he shall betake himself to mere utility, 
 or to the very obvious proposition, that every nation may or 
 may not permit foreign laws to be appKed, as it thinks best. 
 
 His treatment of criminal international law is very scanty, 
 only occupying ten pages out of eight hundred, and the 
 difficulties of this subject he seems to avoid. 
 
 On the other hand, the practical division of the subject 
 deserves recognition ; it is not made according to artificial 
 definitions, but according to legal categories, although 
 
§§ 19, 20.] 49 
 
 this division is not always strictly maintained, and one can 
 .often note a tendency to diverge to other departments of 
 law, just as the definitions which he lays down are very often 
 wanting in sharpness. 
 
 The student will lay down this book with an enlarged 
 
 knowledge of decided cases, and of the opinions of different 
 
 authors, and the judge wiE often be glad to test the case in 
 
 hand by the help of Story's numerous illustrations and his 
 
 wondrous power of comparison, and will find profit in doing 
 
 so ; but it will often be difficult for a reader to say from 
 
 Story's discussion of a subject that the decision must, on legal 
 
 , principle, be what he pronoimces it to be, and none other. 
 
 \^ Eocco, too, treats the subject in the same way : he bases 
 
 V the application of foreign laws upon a tacit agreement of the 
 
 J<^ different States, and inquires in what particular cases this 
 
 >N agreement may by practice and the general approval of all 
 
 A/ be held to have been made.* 
 
 ) §20. 
 
 Massd, too, is without any general principle, and asserts 
 , that the justice and equity of each particular case must 
 determiae whether foreign laws are to be appHed or not. 
 There is this peculiarity in his theory, that he disputes the 
 right, which the authors just mentioned concede to every 
 State, of prohibiting the appHcation of foreign laws in its 
 own territory, without denying the force of express enact- 
 ments to that effect (No. 48). In its details, Mass^'s method 
 closely resembles that of Foelix. He takes as his starting- 
 point the well-known division of statutes in its ordinary 
 acceptation ; and although he declares himself opposed to 
 the class of " statwta Tnixta," and to the rule, " tnohilia 'per- 
 sonam segnvMtur" his difficulty is purely verbal, and is not 
 seriously argued out. It is, for instance, a petitio pri/nci/pii 
 to say (No. 55) : "II est manifeste, que la capacity civile 
 d'un i/ndividu celle, qui derive de sa position, ifie peut itre 
 determin^e que par les lois de la society, dont il fait partie." 
 
 * I have unfortunately been unable to procure a copy of this work, and 
 have therefore had to refer to Mittermaier and Zacharia's Zeitschrift fiir 
 Rechtsw. und Gesetzgetung des Aualandes, pp. 267-78 et seq. 
 
 E 
 
50 [§§ 20, 21. 
 
 His discussion of the law of obligations is disturbed by the 
 terms he adopts from Fcelix, which are artificial, and, as we 
 shall hereafter see, in part untenable ; as, for instance, the 
 division of the results of a contract into foreseen and unforeseen, 
 and of its form into external and internal, and so forth. 
 
 On isolated points, however, the work, which is of con- 
 siderable detail, and is most closely associated with French 
 jurisprudence, contains many valuable investigations, espe- 
 cially on the subject of procedure, which is discussed with 
 interest and precision. The division that deals with the 
 forms of process, a subject that is for the most part neglected 
 by German authors, is remarkably good. 
 
 §21. 
 
 In Mass^ we find the voluntary concession of the lawgiver, 
 the comitas nationuvn, falling into the background ; but 
 although no universal principle is enunciated, each individual 
 case is to be determined by considerations of justice. In 
 other authors, again, comitas is entirely thrown aside, and 
 their theories are made to depend upon some comprehensive 
 general principle. 
 
 Struv^'s book,i in other respects of no importance, lays 
 down the principle that every legal relation is to be deter- 
 mined by the laws of the place where it is to work itself out ;^ 
 and this principle is carried so far as to deny validity in 
 judgment to any positive enactments that infringe upon it. 
 
 Schaffiier caUs the doctrine of comitas a haphazard and 
 unlawyerlike principle, which is for determining legal ques- 
 tions by political considerations. He proposes to determine 
 every legal relation by the law of the place where that rela- 
 tion has come into existence. The legal status and capacity 
 of a person are accordingly to be determined by the laws of his 
 domicUe ; for the view of the law (which law ?) could, accord- 
 ing to him, never go so far as to assert that status and 
 capacity could be brought into existence by a merely tem- 
 
 1 G. V. Struv4 Ueber das positive Rechtsgesetz in seiner Beziehung 
 auf raumliclie Verhaltnisse oder iiber die Anwendung der Gesetze vers- 
 chiedener Art. Carlsruhe, 1834. 
 
 2 This principle is handled in the most extraordinary fashion. 
 
§§21,22.] 51 
 
 porary stay in any country. Schaf&er does not explain 
 •when a legal relation may be said to come into existence. 
 Thus his first principle has no precision, and his deHver- 
 ances on particular cases do not foUow from his principle ; 
 while many of the illustrations which he gives may be turned 
 right round.^ For example, according to page 51, the ques- 
 tion whether an illegitimate child can be legitimated by the 
 subsequent marriage of its parents is to be determined by 
 the laws of the birthplace of the child, because the birth of 
 the child took place there, and thus the legal relation came 
 into existence. But it may just as plausibly be said that 
 the illegitimate child at the time of its birth stands in no 
 degree of relationship to its father, and, therefore, the legal 
 relation has not yet come into existence. Schaffiier cannot 
 help invoking the aid of the spirit and tendency of the laws, 
 the nature of the thing, and other principles of that kind 
 (p. 76, 65). In spite of the fact that the principle assumed 
 by Schafl&ier is not adequate to settle the questions of inter- 
 national law, and is simply postulated and not proved in any 
 way whatever,* it is not to be overlooked that this author 
 sets out very concisely a number of instructive problems, and 
 by his knowledge and observation of the principles of English 
 law, which often diverge widely from those of the common 
 law, is often led to valuable remarks.^ The Hterature of the 
 subject is very freely used, but not thoroughly enough ; 
 erroneous views of other authors are often successfully 
 attacked. The last chapter (pp. 201-13) contains a short 
 exposition of the law of process, in which the important sub- 
 ject of the execution of foreign judgments is discussed. 
 
 §22. 
 
 By other authorities the law of the domicile of the person 
 is held to rule — viz., by Eichhorn (D. Privatrecht, § 27), 
 Thibaut (Band., § 38), and Goschen (Civilrecht, i. p. 111).^ 
 
 3 See Unger., Oesterr. Private., i. p. 160 ; Wacliter, ii. p. 32. 
 
 * Wacliter, ii. p. 32. 
 
 ^ See, for example, his remarks on the law of succession, p. 165. 
 
 1 Also by Eeyscher, Wiirtem. Privatrecht, § 82. And, before him,, by 
 Mittermaier, D. Privatrecht, i. § 27. In Ids sixth edition, Mittermaier 
 has adopted Wachter's principle. 
 
52 L§ 22, 
 
 This conception seems at first sight to be a very natural one 
 in reference to private law, with which these authors are alone 
 concerned. " Every right seems at first to be a power that 
 belongs to the individual, and so a property of the individual 
 Proceeding from this as our original point of view, we have 
 to consider legal relations as attributes of the individual" 
 (Savigny, § 345, Guthrie, p. 55). But, as has been pointedly 
 remarked by Wachter (ii. p. 10), although the subject of one 
 country may consider himself, when he is abroad> as bound by 
 the laws of his domicile, it does not by any means foUow 
 that he must be judged according to these laws if he appears 
 before the foreign judge. The principle is seen to be quite 
 inadequate, if it is remembered that most of the questions of 
 private law are concerned with the legal spheres of two per- 
 sons, who may be subjects of different States, with different 
 laws : the consequence would be the adoption of the system 
 of personal laws, as in the Middle Ages.^ In practice, Eich- 
 hom cannot carry out his principle consistently. By a 
 second axiom (§ 36), that, in so far as the rights of an indi- 
 vidual have their origin without his domicUe, or are to be 
 exercised there, they stand in need of the protection of foreign 
 laws, and that this can only be extended to them under cer- 
 tain conditions, his first axiom becomes indefinite, and cannot 
 recover a definite meaning, as wOl shortly be shown, even 
 although this additional rule be called into its aid — ^viz., 
 that vested rights are to be recognised everywhere. The 
 theory that, as a rule, the law of the domicUe must pre- 
 vail, takes a curious shape in MaUher de Chassat's book. 
 He proposes that in the modem intercourse of nations, which 
 rests upon intelligence, humanity, and the principle of nation- 
 ality, the foreigner shall be held to be a representative of the 
 nation to which he belongs (No. 11,53). Private international 
 law, which, after his view, is to be distinguished from the con- 
 flicts of the old statutes — according to him, the offspring of 
 egotism and feudahsm — is nothmg but the law of one 
 nationahty in the dominions of another (No. 53, 337). The 
 conflict resolves itself into a conflict of different governments. 
 Mailher thinks that in this principle he has hit upon the 
 
 Wachter, ii. 12 ; Savigny, viii. § 345, Guthrie, p. 55. 
 
1 22, 23.] 53 
 
 solution of the question, and at the same time lie caUs to his 
 aid, as his second principle, the independence of different 
 nations. It is not clear how these two principles — the free 
 development of a foreign nationality in a country that is not 
 its own, and its limitation by the laws of that country, as 
 Mailher also expresses himself (pp. 323-24) — are to be recon- 
 ciled. As a consequence of the first principle, all questions 
 of private international law must be determined by diplo- 
 macy, and in the last resort by war, which is a contradiction of 
 the recognised principle of pubHc international law — ^viz., that 
 a foreign sovereign may not interpose to protect his subject 
 against the sentence of a judge unless that judge has obvi- 
 ously failed in his duty (Vattel, ii. chap. vii. § 84). From 
 the second principle anything that the court or parties please 
 may be deduced. It is in vain to attempt to trace back to 
 these principles MaDher's indistinct and confused dehver- 
 ances, among which, however, one should not omit to notice 
 some remarks that have good points in them. 
 
 §23. 
 
 Many people think that a great part of the difficulties that 
 beset the subject may be got rid of by the rule that rights 
 once vested are to be respected everywhere (Vattel, ii. chap. 
 8, § 110; Maurenbrecher, D. Privatr. i. § 144; Eichhorn 
 ut cit, Gliick Comm. i. pp. 400), although but few authors take 
 it as the foundation of their whole system (Titus, Jus priv., i. 
 c. 10, and the authorities cited by Wachter, ii. p. 2). From 
 one point of view, however, the demand that vested rights are 
 to be respected has reference to the legislation of one State 
 only, as Wachter has aheady pointed out (ii. p. 3) ; from 
 another, the whole principle of the doctrine runs in a circle, for 
 in order to answer the question, whether a right is to be held 
 as vested or not, it must first be determined by what law the 
 mode of vesting is to be judged (Savigny, viii. § 361, Guthrie, 
 p. 133). 
 
 The autonomy of parties, a doctrine which is also invoked, 
 is of just as little importance. No doubt, parties within 
 certain limits can give their legal transactions this or that 
 meaning, and can therefore take the rules of this or that 
 
54 [§23,24, 
 
 sj^tem of law as tlie basis of their transactions. But, since 
 the different systems of law agree in permitting this freedom 
 of legal transaction to parties, it is not there that differences 
 are to be found ; the problem rather begins when that so- 
 called autonomy of parties comes to an end according to the 
 positive enactments of this or that State, or where one has 
 to deal with a statutory presumption of subjection to this or 
 that law. Savigny has already noticed how inappropriate a 
 title autonomy — by which is generally understood the right 
 of certain associations or leagues to make laws for themselves 
 within certain limits — is to describe this power that parties 
 enjoy of giving their legal transactions, in particular 
 cases, whatever meaning they please (§ 360, Guthrie, p. 
 136). 
 
 §24. 
 
 Lastly, there are some who hold that the law, to which the 
 judge who decides the question is subject, must rule. This 
 view is most thoroughly developed by Putter and Pfeiffer. 
 The former applies this principle so imreservedly that he is 
 led to consequences that place the security of all interna- 
 tional intercourse in the most serious danger ; and he can 
 only support his conclusions against generally received 
 theories and the practice of courts of law, by the argument, 
 that these have no clear conception of the international legal 
 relations of different coimtries, and draw inferences from what 
 is recognised, or has been recognised, in the case of different 
 systems of law within one and the same territory, applying 
 these inferences to the case of the laws of distinct sovereign 
 States. Putter, however, cannot conceal from himself that, 
 by his theory, since it is very much a matter of chance in 
 what country a law suit may come to depend, if the principle 
 stated above is to be exclusively and consistently observed, 
 the intercourse of different States would be impossible. The 
 fact that the commerce of the world, notwithstanding this, 
 goes on, is, in Putter's view, proof that the principle stated 
 above must be correct ; because, if the rule were otherwise, 
 the merchant who bought for sale, would only have to sell 
 the goods he had bought to a third party, in order to escape 
 all claims against him for recovery ! (p. 74). As Putter him- 
 
S 24.] 55 
 
 self sometimes surrenders lus principle entirely, and has to 
 liave recourse to the assumption that the subjects of any- 
 particular State do not trouble themselves much about the 
 laws of foreign countries, or that the testimony of a foreign 
 judge as to the validity of a transaction entered into imder 
 the laws of his country settles all the doubts of the judge 
 who has to decide the question, it is not to be expected that 
 a satisfactory solution of the question should be found in this 
 author, although, on the other hand, one may find there many 
 excellent observations on criminal law, especially in reference 
 to the draft of the new criminal code of Prussia (pp. 93- 
 96).i 
 
 Pfeiffer's work, as its title shows, does not go into detail. 
 The principle abeady quoted is derived by him from the fact 
 of the subjection of the judge to the law of his own country, 
 and from the rule, for which he gives no justification, that 
 the positive law of a State must be applied to all the cases 
 that fall within it, without respect' to persons or things. 
 Pfeiffer maintains this position, on the ground that the know- 
 ledge of foreign law is as a rule defective, and proposes to 
 exclude its application even in cases in which the intention 
 of the parties is furthered by some special enactment to the 
 same effect. The argument on the other side — ^viz., that the 
 undeviating application of the law of the court that decides 
 the case would allow the pursuer, as a rule, to alter at his 
 own wUl the legal relations between him and the defender, 
 by giving him the option of appealing at his own caprice to 
 one court or another, — Pfeififer thinks he can meet with the 
 observation that the defender can exercise no small influence 
 upon the jurisdiction that is to be applied, and upon the 
 legal relations of the parties, by virtue of the power he has 
 of choosing his domicile at his own caprice.^ But if the 
 pursuer in the one case, and the defender in the other, have 
 the power of altering capriciously the legal relations that 
 exist between them, that still leaves the element of caprice 
 
 ^ At page 384, Putter attempts to defend his theory in a special manner 
 against Sa.vigny's views. Against Savigny's doctrine of the friendly admis- 
 sion of foreign law, he takes up the position that every State jealously guards 
 its own supremacy. 
 
 2 P. 35. 
 
56 [§24. 
 
 to embarrass us in either case. It is plain that the author 
 will find just as little support for his theory in the unat- 
 tainable assimilation of the laws of all States.^ The equality 
 of citizens and foreigners before the law, on which Pfeiffer 
 dwells, and which is the only principle that can be con- 
 sistently carried out, along with the axiom aheady stated, 
 becomes, if considered closely, in many cases a complete 
 denial of legal rights to foreigners,* since we cannot expect 
 our law to be in the minds of foreigners in their own country. 
 In any case, the author should not have passed over as he 
 has done the subject of jurisdiction, if he wished to show 
 more minutely that his theory is capable of being carried out 
 in practice. In its present shape Pfeiffer's theory negatives 
 the possibility of international intercourse.® 
 
 Gand lays down the same principle in a more moderate 
 way, when he derives from the admitted competency of the 
 court to decide upon a particular legal relation, the propriety 
 of applying the law to which that court may be subject. 
 He infers from the fact that the prevailing practice of 
 French courts as a rule excludes, in cases where there is a 
 question of the apphcation of foreign laws, the plea of nullity, 
 if there be no violence done to any definite French statute, 
 that it rests with the court to apply or to exclude foreign 
 law, or that it is nothing but a consideration of convenience 
 and practical advantage that opens the door for its admission. 
 Gand, whose purpose is merely to treat of French statutes 
 and practice in connection with the legal relations of foreigners, 
 and who grapples with general propositions of international 
 law, because these positive enactments are inadequate for his 
 end, combines therewith various propositions taken from the 
 older statute theory (Nos. 180-81, 204-20), and in doing so, 
 greatly extends the category of real statutes. In spite of this 
 defect, and although.it is remarkable that the author does 
 not abandon the conclusion he draws from the 14th Article 
 of the Code CivUe, which is unquestionably erroneous, — viz., 
 that a pursuer, who is a Frenchman, in a question with a 
 foreign defender, may unconditionally elect to have French or 
 foreign law appUed to his case, — the book contains many 
 
 3 P. 54. * Savigny, § 348, Guthrie, p. 69. « See also Mohl, p. 448. 
 
.^24,25.] 57 
 
 details that deserve acknowledgment. Very many judgments 
 of French courts are reported by him, and at great length. 
 
 This view is modified in a pecuHar fashion by Kori.® He 
 makes the import of the judgment dependent upon the pos- 
 sibility of summary execution, and proposes that the form of 
 a contract executed by a foreigner in our country, and the 
 legal capacity of foreigners withru our territory, should be 
 determined by our law ; but, as a rule, to this effect only, that 
 the property of the foreigner which is withia our country, but 
 not any property beyond it, should be dealt with by the judg- 
 ment which may be pronoimced. It is easy to point out how 
 impossible it is to carry out this theory in practice, and how 
 plainly it conflicts with generally recognised principles of law. 
 To carry it out, a new judgment would faU to be pronounced 
 as often as a new article of property was brought by the 
 foreigner into this country .'^ In particular cases, however, 
 Kori, as Wachter has shown, uses quite different premisses, 
 although he gives no demonstration of them. 
 
 §25. 
 
 Wachter, in his treatise which we have quoted so often, 
 takes as his foimdation, but in a very different way, the law 
 to which the judge who decides the case is subject. In 
 default of express iustructions as to the legal relations that 
 arise with other countries, he assumes that the spirit and 
 meaning of the statute, and not its words, are to decide as to 
 the application of foreign law ; and it is on this point that 
 Wachter's treatise has undoubtedly advanced the study of 
 international law. Wachter casts away without hesitation the 
 conclusion that, because statutes can only bind the judge to 
 administer the law of his own country, that is all they desire 
 to effect. But as Wachter stops there, and apphes in doubt 
 the statutes of the judge who is sitting in judgment,^ without 
 
 * This work is short, and does not enter much into detail. 
 
 " See Wachter, Vol. I. p. 304 et seq. 
 
 1 See, on the other hand, Savigny, § 361, Guthrie, p. 143. " To some ex- 
 tent we shall applyto our subject the practice of the civil courts, where erery 
 one on whom the burden of proof lies is cast if he does not succeed in adduc- 
 ing proof." 
 
58 [§ 25. 
 
 setting up any principle on the other side for finding out the 
 spirit and meaning of the enactment in cases where it is 
 called in question, his deUverances are in many points not 
 quite free fi:om caprice, although in individual instances 
 they are excellent. Expediency is an end which Wachter 
 reserves for the lawgiver alone, but does not allow it to serve 
 as a principle for a judge's decision ; a judge he would tie 
 down to hard and fast legal propositions, which, as we shall 
 afterwards show, must be point by point extracted from a 
 general law of custom. We need not here bring mider notice 
 the weU-known featinres that are illustrated by the works of 
 this famous author. AU we shall say is, that the German 
 literature of the subject, up to the date of publication 
 (1841-42), is most thoroughly employed, and subjected to a 
 searching criticism. It is probable that a comparative truth 
 might have been discovered in many theories, especially of 
 more ancient date, differing from his own, which might have 
 suppKed it with an historical foundation. For instance, 
 Wachter takes his stand solely upon the common Eoman 
 law. He therefore overlooks the influence of Germanic prin- 
 ciples on the treatment of the question, and leaves unnoticed 
 many theories which, from the point of view of Germanic 
 legal conceptions, are certainly correct : this cannot but be felt 
 if the subject be confined to the conflict of particular systems 
 of law in Germany ; and it is hardly possible to give fuU 
 approval to Mohl's dictum, that it matters not whether the 
 question is raised in relation to the laws of separate provinces, 
 or of entirely • distinct countries, considering that Wachter 
 might certainly have reached some modification of his theory, 
 and could have given it a more historical foundation, if he 
 had had regard to foreign systems of law, which, like the 
 Enghsh, have in many cases retained Germanic principles in 
 a purer form. 
 
 Even Savigny recognises that a judge must be mainly 
 referred to the laws of his own State ; but he rejects alto-, 
 gether the extension of that proposition — viz., that in doubt 
 they alone are to be applied. The legal intercourse among 
 modem civilised States, except in the few instances where 
 enactments of an exceptional kind, e.g. prohibitive laws, prevent 
 the application of foreign law, is not based by Savigny upon 
 
§25.] 59 
 
 a jealous administration of its own authority by each State 
 within its own limits ; on the contrary, he demands, as 
 debitum, justitice, and not as a mere capricious concession, 
 that in every legal relation we shall ask what is the territory 
 to which that relation, by its own peculiar nature, belongs, 
 and to which it is subject, or, as he expresses it in a more 
 picturesque fashion, what is the territority where the legal 
 relation has its seat. 
 
 There is nothing to be said against the justice of this 
 theory, which, setting aside the distinction already taken, 
 differs in form only from Wachter's principle. But, admit- 
 ting the most various interpretations, it needed, in its appU- 
 cation to particular legal relations, a broader development, 
 which is often to be desiderated in Savigny. What, for 
 example, would hinder us from assigning every legal relation 
 to the State whose judge was to determine it, or generally to 
 the territory in which it makes its appearance, and in certain 
 circumstances, to a great number of different territories ? 
 Savigny, accordingly, can do no more than postulate the 
 application of the laws of the domicile, in order to determine 
 the legal status and capacity of persons.^ He says again, for 
 instance, in reference to the determination of questions of 
 immoveable property by the lex rei sitce : " Whoever wishes 
 to acquire, hold, or exercise a right over a thing, betakes 
 himself for this end to its site, and subjects himself volun- 
 tarily, for this single legal relation, to the local law that pre- 
 vails in that territory." Now, upon this it is to be remarked, 
 that in this sense aU laws touching property rest upon volun- 
 tary subjection. Kenounce the property in question, and you 
 are no longer subject to the law. But it is nowhere demon- 
 strated why these laws, which are valid in the place where 
 the property is, should demand this voluntary, or more 
 correctly, this necessary subjection in relation to questions 
 connected with them. In short, the whole question is com- 
 mitted to the tact of the jurist ; and it may certainly be 
 admitted that by exercise of that faculty, Savigny often 
 arrives at a correct decision. In spite of the employment 
 of foreign hterature, Savigny does not recognise that foreign 
 
 ^ See, on the other hand, Walter, D. Privatr., § 43. 
 
60 [§ 25. 
 
 authors, who have foreign rules of law before their eyes, along 
 with the common law of Eome, must attain different results 
 from him who stands upon Koman common law alone. For 
 example, he is certainly wrong in proposing to give up 
 absolutely the contrast between the treatment of moveable 
 and immoveable property in international law (§ 360, 
 Guthrie, p. 137). The features which distinguish all Savigny's 
 works, and are to be found in this part of the system of 
 Koman law, need not be further discussed here. 
 
 Thbl conceives the whole subject to consist in the inter- 
 pretation of the laws of the different coimtries. He asks 
 which law desires to prevail, and which ought to do so, and 
 thus reaches the position that it is impossible in this subject 
 to lay down any universal rules, but that special considera- 
 tions must determine all questions. The judge, according 
 to Thbl, must foUow the wiU of his own laws, without being 
 constrained to apply these alone when in doubt. But Thol 
 does not explain on what principle that task of interpretation 
 is to be taken in hand. The short rules set out by him' 
 appear merely as postulates, which, however, frequently hit 
 the truth. The acute remarks he makes upon particular 
 cases will be again referred to below. In conformity with 
 the plan of the work, the law of process is not taken up. 
 There is, however, some consideration of the question how far 
 foreign judgments can be put into execution. 
 
 Most of the works we have referred to are concerned with 
 private law alone, many of them even excluding the law of 
 procedure; and we have specially noted the cases in which, 
 criminal law is taken up. It still remains to allude to those 
 that are specially concerned with criminal law. But since 
 from the nature of international criminal law it has for its 
 object merely the exposition of general principles, and not 
 the inquiries into details with which private law is concerned, 
 and since for this reason the books that deal with inter- 
 national law alone have a much narrower scope than those 
 whose subject is private law in a narrower sense, it will 
 be convenient, in order to save repetitions, to avoid any 
 
 3 This is in accordance with the object of the book, which is not intended 
 as an exhaustive exposition and examination of the historical part of the 
 subject. 
 
§§25,26.] 61 
 
 separate criticism of these authorities, but to combine them 
 with the examiaation of the various principles that may be 
 advanced.* 
 
 § 26. 
 
 PEINCIPLES OF ESTEENATIONAL LAW, PBIVATE AND CRIMINAL. 
 
 From the conception of territorial sovereignty, which is 
 now so firmly established, there follows the right of the 
 legislator to lay down for the courts of his country instruc- 
 tions for the disposal of each and every legal question that 
 may form the subject of an action before them. The judge 
 must follow the express directions of the legislature of his 
 country in questions that have to do with international 
 intercourse, just as much as ia those that are concerned with 
 questions of native law alone. 
 
 This is the principle, as we saw, that lies at the bottom of 
 all the more modem writings on private international law, and 
 Struv^ alone rejects it. But there could hardly be a tribimal 
 that would renounce its allegiance to the legislature, as he 
 desires. 
 
 The diflSculty, however, which all recognise consists simply 
 in this — that it is quite exceptional to find express instruc- 
 tions of the legislature ; and for want of these the judge must, 
 by interpreting the statute law, seek out' the wiU of the 
 legislator, and decide in accordance with it.^ 
 
 Those who advocate an undeviating application of native 
 law to cases that stand in some relation to foreign countries, 
 proceed from the further assumption, that, because the legis- 
 lator has not devised some special rule, the judge can only 
 abide by the general rule recognised for purely domestic legal 
 
 * We shall still have occasion to cite the following books, which deal with 
 private international law in general, and are therefore not concerned with 
 isolated questions, or with the legislation of any particular country on 
 international legal relations : — Keddie on Private International Law ; Walker, 
 Introduction to American Law ; Bowyer, Commentaries on Universal Public 
 Law ; Ferrater, Codigo del Derecho International. 
 
 * It is only in connection with criminal international law that we find 
 plenty of express instructions given by legislators. That this phenomenon — 
 viz., the want of express rules in private law, and their existence in criminal 
 law, has a good ground, will be shown in the course of our inquiries. 
 
62 [§26. 
 
 questions. Those, on the other hand, who, when they find 
 no express instructions from the legislature, make it the duty 
 of the court, under certain circumstances, to have regard to 
 foreign rules of law, assume that the legislator has had in 
 view only the cases which come as a rule before the courts of 
 his country — i.e., cases to be decided on grounds of purely 
 domestic law ; and therefore, just as with any indefinite or 
 incomplete statute, the will of the legislator must be deter- 
 mined for the special and exceptional" case in question by a 
 special process of reasoning ; the determination of a question 
 of foreign law is not to foUow off-hand the rules that hold 
 good for questions that are purely domestic. 
 
 Some authors (English and French authors of recent date) 
 explain the apphcation of particular foreign rules of law in 
 individual cases by a reference to the necessity of friendly inter- 
 course between States. But if it is friendly intercourse (comitas 
 nationum) that opens the door for the application of rules 
 of foreign law, this principle may be so variously interpreted, 
 that it can never serve to prove whether foreign law is to be 
 applied in any particular case, and if so, what law. At the 
 same time, these authors appeal to practice ; but, on the 
 one hand, a satisfactory reference of this kind can only be 
 made on a very few points, as soon appears from a study of 
 these authors ; and, on the other, when every definite principle 
 fails, the practice that actually obtains in individual cases can 
 afford no sure ground for determining other analogous cases. 
 
 Accordingly, a forcible juristic argument has been urged 
 by others, founded upon the nature of particular propositions 
 of law. If, as we have already seen, the theory of real and 
 personal statutes, like the theory that proposes to determine 
 aU the legal relations of a person according to the laws of his 
 domicile, lands itself in indubitable contradictions, — if, too, 
 the theory of vested rights and other ^ theories rest upon a 
 petitio principii, — it must be recognised as sound to commit 
 the decision, with Wachter and Thol, to the view of the legis- 
 lator upon the question at issue, or, what is equivalent, to 
 that law to which the problem in question is subject by its 
 own nature, the view of Savigny. 
 
 2 For example, the theory advanced by Sohaffner. 
 
§ 26.] 63 
 
 But it is not sufficient to say that in the particular case 
 the appUcation of a particular foreign law coincides with the 
 view of the native legislator ; it needs, like every appeal to 
 the spirit and meaning of a statute, some broader foundation. 
 
 To supply that foundation is the object of this treatise ; it 
 will try, by an examination of details, which deserve to be 
 called the best touchstones of general principles, to develop 
 the principles enunciated in the works of Wachter, Thol, and 
 Savigny, to correct these, and to confirm them by an histori- 
 cal comparison of the views of different authors. 
 
 To this part of the subject, also, belongs specially the 
 refutation of the objection raised most ingeniously in modem 
 times, that, because the legislator, if he desires it, can pre- 
 scribe the appUcation of native law in aU native courts, and 
 must necessarily consider the law laid down by himself as 
 the appropriate and proper means of determining the question 
 at issue, therefore, unless the contrary is expressly provided, 
 the legislator must contemplate that without exception all 
 questions will be determined by native law.^ 
 
 This objection is met by the axiom which all civilised 
 nations recognise — -viz., that the object of legal procedure is 
 to declare existing rights, and not to create them. If the 
 law that prevailed at the court that was to give judgment in 
 each case were to decide upon the material import of the 
 legal relations that may be in dispute, there can be no doubt, 
 since very different tribunals may come to be competent in 
 a particular case, that in many instances the judge would 
 either have to create, or at least to modify, the legal relation 
 in question. The issue cannot, in accordance with that 
 generally accepted proposition, depend on the place where 
 any legal relation may accidentally come to be the subject of 
 a legal process, even if we leave out of view the very weighty 
 practical results of a theory which makes the import of a 
 legal relation depend on the lex fori — i.e., in the case where 
 the courts of different States are equally competent, on the 
 pleasure of the pursuer, and, at the same time, attributes an 
 extra-territorial and even a retro-active force to native statutes, 
 by demanding, as Heffter* remarks, that foreigners, in a foreign 
 
 3 Pfeiffer, pp. 40, 41. * P. 71. 
 
64 TTse. 
 
 country, in bargaining about subjects situated there, should 
 follow the law of the place.^ 
 
 If, then, the application of foreign law seems, under certain 
 circumstances, when express instructions are wanting, to be 
 demanded, and the view of the legislator must be discovered 
 indirectly by a process of reasoning, we cannot recognise as 
 sound the objection that the view of the legislator cannot be 
 objectively ascertained, but must rather be arrived at by 
 subjective and arbitrary conjectures.^ In reaUty, such a dis- 
 tinction between objective and subjective arguments does not 
 exist ; and therefore we need set up no general rules as to 
 whether the view of the legislator can properly be reached 
 by an objective demonstration ; that must rather be left to 
 depend upon the conviction of the reader or of the judge. 
 
 But if the principles that are postulated for the various 
 branches of our subject are in harmony with each other, and 
 if these principles can be logically pursued into details without 
 contradicting the rules that are generally recognised in 
 practice by all nations, and without doing violence to the 
 natural instincts of justice and equity ; and if, besides, it 
 can be shown that the most eminent authors and the 
 decisions of supreme courts agree in their results with what 
 has been assumed to be the view of the legislator, although 
 not invariably in the grounds on which these results are 
 based, and which are so often inexactly or incompletely 
 expressed, then the author beheves that he will have pointed 
 out an objective truth. He will certainly admit that he has 
 not attained this end in aU points ; many a doubt will be 
 left as to particular cases, but, upon the whole, he beheves 
 that an advance in that method which was laid down by 
 Savigny, Thol, and Wachter, is possible and necessary." 
 
 5 The application of foreign law is not a comitas in the sense that a State 
 which wishes to remain in intercourse with other States, would have a right 
 to oast it off altogether : it is rather, as Lord Brougham remarks (Story, 
 § 226, note, p. 333), a debitum justUice, which takes its origin from friendly- 
 intercourse — comitas. 
 
 " Pfeiffer, p. 38. The legislator, then, has no general view of international 
 law ; not even that native law alone must be applied. 
 
 ' Ajudgment of asupreme court in Germany notes that the principle laid down 
 bySavigny is certainly to be recognised as generally true, but that the consequen- 
 ces of it have not by any means been as yet established (Striethorst, xx. p. 307). 
 
§ 26.] 65 
 
 The following sketch of legal principles in their interna- 
 tional aspects wiU serve to show clearly what the author 
 understands to be the scope of statute law. But it must be 
 noted that detailed inquiry will alone solve the question, 
 what particular legal propositions belong to this or to that 
 branch of the subject, and this sketch cannot be directly 
 employed to determine particular legal problems. This 
 remark suggests a further observation, that in strictness there 
 should be a special inquiry into the international relations of 
 each separate rule of law : such a task, however, would never 
 be brought to an end, so infinite is the list of rules of law, 
 and so constant are the changes in the law itself. Most rules 
 of law, however, are merely logical deductions from general 
 principles, for even new positive enactments are logically 
 and historically bound up with others ; and thus we can by 
 a natural process pass from the international aspects of one 
 rule of law to those of another which is akin to it. But 
 though such a process is permissible, it is as little possible 
 to lay down general rules for it, as it is to say generally how 
 the language of statutes is to be read. Interpretation, as 
 Savigny remarks, is an art to be applied to each case by itself, 
 The undertaking must therefore be considered to have been 
 exhausted if, in the course of the inquiry, we shall discuss 
 those prominent questions of detail which have been found 
 of special importance in international intercourse, and 
 with which the authors on the subject, as well as the 
 long list of judgments that are before us are principally 
 concerned. 
 
 Finally, it should not be left unnoticed that in some points 
 a special law of custom has modified the logical deduction 
 from the nature of the subject, and of course all reference to 
 this law of custom, just because it concerns merely isolated 
 points, belongs to the special inquiry into the various branches 
 of the subject. 
 
 The laws which concern the capacity of certain persons to 
 contract/ have for their object merely to provide a permanent 
 
 ^ From this must be distingushed the laws that concern capacity for legal 
 rights ; the generally recognised rule decides upon the latter — viz., that 
 foreigners and natives, in relations of private law, have the same capacity for 
 legal rights. See § 42 et seq. 
 
66 [§ 26. 
 
 protection for these persons. This object can only be attained 
 if the subjects of our State remain under the sway of our 
 laws, although they may be temporarily resident in a foreign 
 State, and remain so in respect of all their property, even 
 although it may lie in a foreign coimtry. On the other 
 hand, this object cannot be attained in the case of strangers 
 who have only a temporary residence in our State, or happen 
 to have property there. Subjects of our State, therefore, will 
 be treated before our courts as of no contracting capacity, 
 even although they may have entered into contracts abroad ; 
 and, conversely, strangers wUl never be treated as incapable 
 of contracting by our courts, because according to our laws, 
 they would not possess such capacity.^ 
 
 The object of laws relating to things can only be attained 
 if either the law of things that prevails in the domicile of the 
 parties interested, or that which prevails at the place where 
 the transaction takes place, are left out of account ; but at 
 the same time, the design of the legislator can only reasonably 
 have reference to property that is situated within his territory, 
 and so the Lex rei sitce alone rules.^ 
 
 Relations of obligation have their essence in the concurring 
 wills of the parties to them. And hence it is of the highest 
 importance to inquire to what territorial laws the parties 
 wished to subject themselves ; or, if this is not clear, what 
 conditions they must equitably be held to have had in view. 
 But where, in the law of obligations, we find exceptional 
 enactments to control the will of the parties, we must again 
 set ourselves to inquire whether the aim of the legislature is 
 only to be attained by applying the statute to aU contracts 
 entered into or implemented in our territory, or whether it 
 rather intended to give the subjects of our territory a special 
 protection ; or whether, lastly, the judicial ratification of the 
 contract was meant to be confined to the courts of our 
 country : in the first case, the law of the place where 
 the contract was entered into or is to be implemented 
 rules ; in the second, the law of the domicile of the 
 
 ' These logical conclusions are modified by a general consuetudinary law 
 for the States of Europe, as we shall afterwards have to remark. 
 ' For a detailed demonstration, see infra, §§ 57, 58. 
 
§ 26.] 67 
 
 person ; in the third, the law of the country where the 
 court is situated. 
 
 The aim which the law of the family has before it can 
 only be attained if the subjects of our State, even when tem- 
 porarily absent abroad, remain under its authority ; and con- 
 versely, it would never be attained if it were to be applied to 
 persons that have no permanant allegiance to our State, and 
 are only temporarily resident in it. The law of the domicile 
 therefore claims authority in such questions. 
 
 According to the axioms of Roman law, the heir represents 
 the person of his predecessor in aU legal questions relating to 
 his property. This entire personality, with aU the relations 
 attaching to the property, can, as a legal conception, exist 
 only at the centre of its legal activity, and therefore only at 
 the domicile of the person. The transmission, therefore, of 
 the legal person of the predecessor to the heir takes place 
 according to the law of succession prevailing at the domicile 
 of the predecessor. Conversely, by the conception of EngHsh 
 law, the law of succession, so far as immoveables are con- 
 cerned, is merely a special variety of the law of acquir- 
 ing things ; and therefore by English law the lex rei 
 sitce rules. 
 
 The law of process prescribes the conditions and the forms 
 under which the sovereign power of the State sets itself in 
 motion to deduce and to vindicate private rights. And from 
 this the converse foUows, that the State will not set itself iu 
 motion under any other conditions or forms, and therefore, in 
 questions of process, the law of the place where the tribimal 
 is, is to be applied. 
 
 The aim. of the criminal law can only be attained if all 
 persons within the territory of the State, even although they 
 are merely passing through it, are subject to it ; while, at the 
 same time, the permanent subjects of any State are subject 
 to her criminal law while abroad, unconditionally as regards 
 their special duty to her, and as regards other acts also, unless 
 they give satisfaction to the sovereign authority of the foreign 
 State in whose territory the criminal act was done, and whose 
 criminal jurisdiction is competent ; or unless the act was 
 lawful in the place where it was done. 
 
 Laws as to procedure in criminal matters are, like the laws of 
 
68 [§ 26. 
 
 civil procedure, merely regulations as to the forms and condi- 
 tions under which the sovereign authority will set itself ia 
 motion to investigate and punish crimes. Whether a criminal 
 process has been shown to be required, is bound fj^up 
 with the question whether it ought to take place on 
 the requisition of another country, and whether, there- 
 fore, any legal assistance should be given by the one 
 to the other. 
 
Secottlj ^art 
 
 GENEEAL PKINCIPLES OF PRIVATE AND CRIMINAL LAW. 
 
 I. Equality of Legal Capacity m Foeeignees 
 AND Citizens. 
 
 §27. 
 
 Modeen international law lays it down as an axiom, that 
 where special exceptions are not expressly made, the foreigner 
 in aU legal questions, whether of private or criminal law, 
 is not subordinated to the citizen, but enjoys just the same 
 legal capacity.^ 
 
 Even the Itahan jurists of the middle ages, Baldus, Barthol. 
 de Saliceto, and others,^ express themselves to this effect, and 
 it seems unnecessary to heap up a pile of citations, which could 
 be easUy accumulated from modern authors, decisions, and 
 statutes upon this axiom.^ It is only with reference to the 
 
 ^ The axiom nmst, however, be confined to the capacity to acquire all 
 rights. A perfectly similar treatment by the law is not meant. The latter 
 woxild devolve an undeviating application of the law prevailing at the seat 
 of the tribunal that was to decide the question. 
 
 2 Cf. e.g. Baldus, in L. Si non speciali, 9, num. 2, C. de UstamunUsj 
 Barthol. de Saliceto, in L. cunctos, C. de S. Trm., num. 8. 
 
 3 Cf. e.g. Mevius, in Jus. Lub. Proleg., qu. 4, § 37 ; Walter. D. Privat- 
 reoht, § 60 ; Mittermaier, D. Privatr. 6th ed. § 109 ; Hofseker, de effic., 
 § 23 ; Oppenheim, Viilkerrecht, p. 357 ; Bulow and Hagemann, Prakt. 
 Erorterungen, ix. pp. 142-43 ; Spangenberg in Linde's Zeitschr. fiir Civil- 
 recht und Process, iii p. 431 ; Feuerbach, Themis, p. 325 ; Maurenbrecher, 
 D. Privatr., 2nd ed. § 141 ; Decision at Berlin of 21st Sept. 1849 (Deoi- 
 
70 [§27. 
 
 acquisition of landed property that it is usual to put a 
 restraint upon the capacity of foreigners ; but they are often 
 subjected to what is called foreigners' attachment (Auslander- 
 arreste), and are bound over to find security for the expenses 
 of process. These two latter regulations are not in truth 
 any inequaHty in legal capacity, but are rather a power given 
 to the opposite party in the process by which he can protect 
 himself against the risk necessarily arising from the fact that 
 a foreigner can more easily withdraw himself from the juris- 
 diction of the court, and so prevent his antagonist from 
 following out the judgment that may be given.* 
 
 A different theory is maintained by the majority of French 
 authors. They divide all rights into droits civils and 
 naturels ; it is only the latter class that they would allow 
 foreigners in France to enjoy — the former are to be the ex- 
 clusive privilege of the French, and, under certain conditions, 
 of foreigners formally domiciled in France.^ It is, however, 
 impossible to maintaia such a distinction between natural 
 rights and private rights which exist only by virtue of the 
 positive laws of a particular State. Certain legal proposi- 
 tions, and among them those that have their concern with 
 the ordinary affairs of commerce, are no doubt alike among 
 all civilised peoples ; but in spite of that, we have already 
 seen that the idea of a law that is radically independent of 
 the existence of separate States, is false, as may easily be 
 shown by examples. For instance, nothing seems more 
 natural to the general legal mind and conscience than that 
 contracts, in whatever form they may be concluded, should be 
 kept intact. But positive law prescribes a particular form 
 for many contracts, and this must, if anything at all can be 
 treated as a rule differing from natural law, be treated 
 Unquestionably as a rule of the droit civil. These forms of 
 
 sions, xyiii. p. 148), Pr. A. L. E., § 41-44 ; Pr. Allgem. Geiichtsordnnng, 
 i. 50, § 162 ; Sup. Ct. Berlin, 16tli July, 1857 ; Striethorst, xxvi. p. 139 ; 
 Austrian Civil Statute Book, § 33; Wachter, i. p. 252-53 ; Bopp. inWeiske's 
 Law Lexicon, iv. p. 359-60 ; Hannov. C. G. B., art. 3 ; Kostlin, Sys. des 
 Strafr. § 23 ; Burge, i. p. 694 ; Blackstone, i. 338 ; Stephen, i. 438 ; Blun- 
 tschli Allgem. Staatsr. 2nd ed. i. 468. 
 
 * Unger, Oesterr. Privatr., i. p. 303. [On the right of foreigners to sue, and 
 the practice of requiring them to find caution, see infra, §§ 117, 118.] 
 
 5 Mass6, ii. pp. 22-26. 
 
§ 27.] 71 
 
 contracts can consequently liave no application to the inter- 
 course of foreigners. But a French author or a French 
 court of law will hardly be found to lay down that in a case 
 where writing is required by French law to complete a con- 
 tract, this rule is not to be appUed to contracts concluded by 
 foreigners with Frenchmen in France. Koman law, no 
 doubt, as we have seen, recognised such a jus gentium 
 common to foreigners and Romans, and this idea was justi- 
 fied if the foreigner was only to be recognised as having legal 
 capacity in reference to certain definite branches of law. 
 But if we assume, as the legal mind of the present day does, 
 that foreigners in matters of private law are not to be placed 
 at a disadvantage with citizens, a distinction of the kind 
 loses all definite meaning, and results at last in an arbitrary 
 oppression of foreigners. As a matter of fact, even in 
 French jurisprudence the greatest conflict prevails over the 
 division of the different rules of the law into these two 
 classes,^ and Gand, after seeking in vain for a solid definition 
 of droits civils^ ends in the correct deUverance that by 
 French law foreigners enjoy certain droits civils as weU as 
 naturels, that is, all rights which the legislature has not 
 expressly denied them.^ 
 
 The French statute book does more to place foreigners at 
 a disadvantage with citizens than any other statute book 
 (cf. e.g., Code Civ., art. 14 ; Code de Commerce, art. 575) ; 
 and by the 13th article it specially allows the enjoyment of 
 droits civils only to foreigners who have acquired a domicile 
 in France under the authority of the emperor, from which 
 it must be inferred that foreigners are not allowed these 
 rights generally. But no general rule is laid down as to 
 what are droits civils, and it is only in one case that a 
 particular right is denied to foreigners as a droit civil. 
 MaUher de Chassat casts off, and with justice, the whole 
 distinction, and holds only political rights to be truly the 
 exclusive privilege of the French ; he demands no further 
 
 " See Kosshirt in Ms Zeitschrift fiir CiTil- und CrimiEalr., iii. p. 335 ; and 
 especially Savigny, Syst. ii. pi 154. 
 
 ' Gand, No. 135. 
 
 8 The Cour de Cassation expresses itself in a similar way ; Judginent of 
 August 5, 1823 ; Sirey, xxiii. 1, 253. 
 
72 [§ 27. 
 
 guarantee from foreigners than is required by the fact that 
 they can more easily withdraw themselves from French juris- 
 diction. Demangeat, too (Notes to Foelix, i. p. 98), tables 
 this sound proposition, which Gand himself at last admits : — 
 "Pour nous I'dranger a la puissa/nce de tous les droits 
 civils qm appartiev/aent au Francis d, I'exception die ceux, 
 qui lui sont positivement d^nids? 
 
 Vattel (ii. § 88) considers the capacity to acquire things 
 that have no owner as an exclusive privilege of the native 
 citizen. According to his conception, such things" are a 
 common property of the natives that has been left in the 
 original common stock unappropriated, and therefore no 
 foreigner has any part in it. He will not, therefore, allow a 
 foreigner the rights of the chase in countries where these are 
 free ; and maintains that a foreigner who finds a treasure 
 does not acquire any property in it, although a citizen in the 
 same circumstances would do so. But the conception of a 
 thing that has no owner excludes any special right in any 
 one, and excludes, therefore, the common rights of aU citizens. 
 Accordingly, unless foreigners are expressly excluded from 
 acquiring anything at all by occupation, the acquisition of 
 things that have no owners must also be granted to them. 
 But if, as is generally the case with sporting rights, there is 
 in any particular privileged person — ^be this the body of 
 citizens or not — an exclusive right of occupation, the foreigner 
 cannot make any use of the right which he undoubtedly 
 has, of acquiring property in a thing that has no owner, by 
 
 ^ It is only political rights that can justly be withheld from foreigneis. 
 Every other distinction is capricious, and is also impracticable, unless it is 
 intended to confine the intercourse and legal capacity of foreigners to the 
 narrowest point. That a foreigner should not be capable of being adopted 
 by the subject of our State (Decision of the Cour de Cassation, Paris, 5th 
 August, 1823 ; Sirey, xxiii. i. p. 353) appears at first sight consistent, but is 
 without any meaning if foreigners are allowed to found great trading 
 establishments, and to exercise in this way a considerable influence over a 
 large number of persons. According to the opinion of the majority of 
 French jurists (Maas^, p. 32), foreigners cannot be instrumentary witnesses 
 in France. But surely it is unsound, according to legal notions of the present 
 day, to treat the capacity of bearing witness as a political privilege. [As to 
 the incompetency of a suit between foreigners in the French courts, and the 
 exceptions to the rule which the exigencies of trade have introduced, see 
 infra, § 118, note.] 
 
§ 27.] 73 
 
 occupation, a circumstance which may explain Vattel's notion. 
 So long, however, as foreigners are not excluded either by 
 statute or by custom, the right of occupation may be as com- 
 petently exercised by foreigners as by citizens.^" 
 
 An exception from the rule of law as to the equality of 
 foreigners and citizens in matters of private law, and the simil- 
 arity of treatment to be accorded to them, an exception that 
 is recognised by international law, is the doctrine of RetaUation 
 (Retorsion), i.e., the application of prejudicial rules of law to 
 foreigners, where the State to which they belong applies the 
 same or similar unfavourable rules of law to our citizens, A 
 necessary condition of this rule, however, is that the foreign 
 State should set the citizens of our State, or all foreigners, at 
 a disadvantage in the matter in question, for the reason that 
 they are subjects of our State or foreigners generally. If it 
 is merely the difference between the foreign law and our 
 own that is accidentally the cause of the prejudice done to 
 the citizen of our country, and if a subject of the foreign 
 State would in similar circumstances be similarly dealt with, 
 then there is no ground for retaliation. RetaUation is only 
 permitted for the purpose of resenting injustice to our own 
 subjects, and preventing it for the future ; but not at all, as 
 would be the case if the rule were extended as above indicated, 
 for the purpose of forcing a foreign State to apply our laws 
 in its own territory.^^ In the definition that is given of 
 retaliation as the establishment of a rule of law to the prejudice 
 of foreigners, there is included this consideration, that the 
 
 ^° Piittlingen, § 66. [By the common law of England and Scotland, aliens 
 were under various disabilities, e.g., were incapable of purchasing or taking by 
 succession heritable property ; but by 33 "Vict. c. 14, this and various other 
 disabilities are removed : aliens are still incapable of exercising political 
 rights — the statute is declared not to qualify an alien for any office, or for 
 any municipal, parliamentary, or other franchise : nor can an alien be owner 
 or part owner of a British ship, or in Scotland be appointed tutor or curator. 
 The disability of foreigners not naturalised to take real estate, although now 
 abolished in many, still subsists in some of the States of the Union. 
 The Court of Appeal of New York (Luhrs v. Times, 24th February, 1880), held 
 that the real estate of an American citizen, i.e., a naturalised citizen, who had 
 died intestate, did not fall to his father, who would have succeeded in the 
 ordinary course, in respect that the father was an alien : a sister, who had 
 been naturalised by marriage, was preferred.] 
 
 " Heifter, Volkerr. pp. 199, 200 ; Unger, Oesterr. Privatr., i. p. 304. 
 
74 [§ 27. 
 
 rule of law thus laid down has no application to rights 
 already acquired ;^^ and, moreover, a resolution of the sove- 
 reign power as legislator is needed before retaUation can be 
 put ia force : the judge or any private person is not entitled 
 to put it in force. 
 
 But because it is the general rule of civiHsed nations in 
 their intercourse, that foreigners and natives should be treated 
 alike, a foreigner who makes claim to any right in our State 
 cannot be called upon to show that our subjects are similarly 
 treated in his State ; but rather where retahation is permissible 
 upon the principles laid down, and has previously received 
 sanction, the opposite party must show that foreigners do 
 not receive the same treatment as subjects in the State to 
 which his opponent belongs. That, too, must be the case, if 
 the law makes certain legal privileges dependent upon the 
 fact that in the foreign country our feUow-citizens are placed 
 at no disadvantage with the subjects of that country in the 
 circumstances supposed.^^ 
 
 ^2 Kliiber, Europ. Volkerr.- § 234, note. Eetaliation is a reciprocal with- 
 drawal of imperfect rights. 
 
 13 [The principle of retaliation is illustrated by the attitude of the Italian 
 court to French defenders cited before them by Italian subjects. The French 
 courts, proceeding upon the 14th section of the Code Civil, will entertain 
 suits brought by a French subject against a foreigner who is neither resident 
 nor domiciled within French jurisdiction, thus violating in favour of their 
 own subjects the ordinary rule of law, actor sequitur forum rei. The Italian 
 courts observe this rule, and where the defender is a foreigner, decline to 
 exercise jurisdiction over him, except in cases where other well-recognised 
 principles of international law allow it ; but in respect of the unwarrantable 
 and prejudicial powers arrogated to themselves by French courts, the Italian 
 courts will not refuse to exercise their jurisdiction against French defenders, 
 when it is invoked by one of their own subjects. This they justify by the 
 maxim, " Quod quisque juris in alterum statuerit, et iipse eodem jure citatur." 
 Judgment of the Court of Cassation at Turin, in the case of Debenedetti v. 
 Morand, 22nd August, 1878. It has, however, been remarked judicially, in 
 another case where the court exercised a similar jurisdiction, that such a pro- 
 ceeding is not founded on any rational principle, and, as it must lead to 
 jealousy and hostility, will be confined within limits as narrow as possible. 
 
 The Austrian Code of 1811, provides by its 33rd section that foreigners, as 
 a general rule, shall enjoy the same civil rights, and be liable to obligations 
 in the same way as natives ; but the foreigner must, in cases of doubt, lead 
 evidence to show that the country to which he belongs treats Austrian citizens 
 in the same wayi 
 
§§27,28.] 75 
 
 The following introductory questions must be settled before 
 we proceed to the different branches of the subject : — 
 
 1. Is there any difference between the application of 
 different particular laws within one and the same State, and 
 the application of the laws of a foreign State ? 
 
 2. What is the relation of private persons to any State 
 which determines their permanent subjection to its private 
 and criminal law ? 
 
 3. Is it pars judicis to apply foreign law, or can it only be 
 done on the motion of one of the parties, and how is foreign 
 law to be proved ? 
 
 II. The Application of different Paeticular Laws 
 
 WITHIN THE SAME StATE, AND THE APPLICATION OF 
 
 THE Laws of a Foreign State. 
 §28. 
 
 The first of the questions suggested at the close of the last 
 paragraph,^ is answered by the older authors, almost without 
 exception, in the negative ; sometimes by implication, as by 
 taking the illustrations which they select now from the different 
 particular laws of one and the same State, and again from the 
 laws of separate States, and deciding both on like principles f 
 
 By the German Code of Procedure for the Empire, which came into opera- 
 tion on 1st October, 1879 (Deutsches Gerichtsverfassungsgesetz), it is pro- 
 vided, §§ 660, 661, that a foreign judgment shall not be admitted by German 
 courts to be put into execution in Germany, unless the courts of the foreign 
 country are in the practice of giving eflfect in like manner to the judgments 
 of German courts. By the bankrupt law of the German Empire of 1876, it 
 is provided, § 4, that the Chancellor of the Empire, with consent of the Federal 
 Council, may order measures of retaliation in bankruptcy procedure against 
 foreign citizens, and those who claim in their right. The Prussian Code of 
 1794 provides in a similar way that the enjoyment of equal rights with 
 natives shall be accorded to foreigners, unless the foreign State by oppressive 
 legislation has placed Prussian citizens at a disadvantage.] 
 
 1 Many pass over the whole question, as for example, Schaffner, Foelix, and 
 Story. It may be inferred that these authors hold that there is no distinc- 
 tion in the treatment of the two cases. 
 
 2 Bartolus in L. 1 C. di 8. Trm.j Albertus Brunus, de Stat, art. 6, §§ 3, 5 ; 
 Argentraeus, art. 218. 
 
76 [§ 28. 
 
 sometimes expressly f and in modem times a considerable 
 majority express themselves to this effect.* Feuerbach 
 (Themis, p. 283), Puchta (Pandects, § 113), Putter (p. 20, 
 Archiv. f. d. Civilpraxis, Vol. XXXVIL), Mailher de Chassat 
 (Nos. 201, 227, p. 308), will have the application of par- 
 ticular laws in the same State, and the laws of different 
 States treated in quite different fashion, and even Wachter 
 seems to incline to this view (i. p. 274, note 80). 
 
 Neither side's adherents, however, assign reasons for their 
 divergent views ; as a rule, the adherents of the second school 
 do not say wherein the difference lies. Puchta only expresses 
 himself distinctly, whereas in Feuerbach's deliverances it is 
 vain to seek for a precise meaning. 
 
 Different particular laws may arise within the same State 
 in three ways : — 
 
 1st. By the union of an independent territory, or of a 
 territory that belonged to a different State, with the sovereign 
 State. 
 
 2nd. By a grant of autonomy made by the sovereign power 
 to a particular district, for certain purposes. 
 
 3rd. By the enactment of a law to apply exclusively to a 
 particular district. 
 
 In the first case, the reciprocal apphcation of the law that 
 is recognised in either division of the State, can only 
 undergo a change at the incorporation of these divisions, if 
 the law which prevails in the one province thereby acquires 
 a different meaning for those legal relations in which it is 
 proposed to apply the law of the other ; for, as we have seen, 
 the doctrine of the conflict of laws is nothing but an inter- 
 pretation of the law of different territories. But, according 
 to weU-recognised principles, the laws of each State are 
 
 ^ Burgundus, i. § 45, " Nee facienda vit est quod Principis auctoritas 
 easdem leges firmaverit /' Huber, I. c. § 11 ; J. Voet, de Stat., § 1 ; Titius, i. 
 c. 10, § 59 ; Mevius, Decis., ii. 185 ; BouUenois, i. p. 521. 
 
 * Zacharia in Elvers Themis, ii. p. 96 ; Hauss, p. 11; Merlin, E^p. Vo. 
 autorisation maritale, sect. 10 ; Keyscher, Wiirtemberg Privatr. i. § 81 ; 
 Philipps, D. Privatr., i. § 23 ; Beseler, i. § 37 (he certainly expresses himself 
 in this sense only so far as private law is concerned ; in criminal law, for ex- 
 ample, he will have other principles applied); Gerber, D. Privatr. § 32, note 3 ; 
 and especially Savigny, § 347, Guthrie, p. 64. 
 
§ 28.] 77 
 
 applied in the same sense after the incorporation as before, 
 except in so far as there is an express alteration of them 
 introduced, which, for reasons of pubUc policy, is always to a 
 certain extent the case when one State is incorporated with 
 another.^ In the first case, therefore, the theory which 
 demands a different treatment for the laws of different pro- 
 viaces must be cast aside, as standing in contradiction to the 
 last quoted rule of law. In the second case, the special dis- 
 trict in question will be recognised by the central State 
 authority as independent for the purposes of the enactment 
 in question. From this independence, it foUows that for this 
 purpose a province wDl be regarded as an independent foreign 
 State, and a similar answer may therefore be given to the 
 question in this case, as it may also for the third. 
 
 There seems to be room for an exception in the first 
 case, if the application of a particular rule of law is dependent 
 on whether a particular person is a foreigner or a native sub- 
 ject. AH inhabitants of the newly acquired province count 
 as subjects, and therefore a rule of law different from that 
 which formerly prevailed comes, in the case in question, to be 
 appUed to them. This is, however, no alteration of the rule 
 of law, but only an alteration in the circumstances of the 
 individual. 
 
 The practice in England affords numerous examples of the 
 same treatment being appUed to the laws of a foreign country, 
 and to the laws of an independent province or colony. For 
 example, judgments that have been pronounced in Scotland 
 are not applied in England imtil they have been proved ;" 
 and in a weU-known case, a spouse who had obtained a 
 
 ^ In the kingdom of Hanover, in modern times, the question of the 
 applicability of statutes dealing with the private law of a city to a parish 
 newly added to the city, has been much discussed and answered by Francke 
 and Laporte (Magazine for the Law of Hanover, 1853, p. 370 ; New Magazine 
 for the Law of Hanover, 1861, p. 203), as indicated in the text. Of. also Leon- 
 hardt, On the Doctrine of Legal Eolations to Real Property, Hanover, 
 1843, p. 45. A singular exception exists by virtue of a special royal warrant 
 of 7th October, 1856, as to' the statutory rule of succession between spouses in 
 the city of Hanover. 
 
 8 Burge, iii. p. 1057. [But by the Judgments Extension Act, 31 & 32 
 Vict. c. 54, a judgment obtained in England may be registered in Scotland, 
 80 as to have the same effect there as in England, and vice versa.'] 
 
78 [§ 28. 
 
 divorce in the Scottish Courts, and had married in England 
 again, was convicted of bigamy, because the English courts 
 did not recognise the decree of divorce.'' 
 
 The opposing arguments adduced by Putter and Mailher 
 de Chassat are quite confused ; while neither of them explains 
 wherein the distinction between different territorial and pro- 
 vincial laws, in so far as their conflict is concerned, lies. 
 
 According to Feuerbach, a provincial code is not given to 
 the district, speaking geographically, but to its inhabitants ; 
 and the geographical boundaries are only named for the 
 purpose of defining the section of the subjects of the State 
 for whom these laws are to have binding force. According to 
 this view, a regulation of police restricted to a province would 
 only affect the inhabitants thereof, and the inhabitants of 
 other provinces could injure them unpunished : the system 
 of personal laws would be established for different proviaces. 
 
 Puchta is of opinion that when the laws of different pro- 
 vinces come into conflict, that law should alone be put in 
 force which is required by the nature of the circmnstances ; 
 but, on the other hand, when the laws of different States come 
 into conflict, the foreign law should only be applied in excep- 
 tional circumstances, because the judge is only called upon 
 to apply the law of his own people and his own State. But 
 the judge does not apply foreign law because it is laid down 
 by a foreign Government, but because the law of his own 
 country desires to have the question determined according to 
 foreign law ; and the judge of any particular province has, in 
 the same way, only to apply the law that is recognised in his 
 
 ' Burge, i. p. 672. There are decisions of the Parisian Court of Cassation 
 to the same effect, of 18th Thermidor, anno 12 (Sirey, xii. 1, p. 73) ; and 
 12th August, 1812 (Sirey, xiii. 1, p. 226)— the first, that the union of two 
 countries into one State does not make the judgments previously pronounced 
 in the one country applicable in the other ; the second, that the union of two 
 countries under one prince does not affect the question, although both judg- 
 ments were pronounced in the name of the same prince. Decision of the 
 Sup. Ct. of Berlin, 5th August, 1841, Decis. ix. p. 381. By the 4th section 
 of the introduction to the Prussian A. L. K., the subject of a foreign State, 
 if he lives in Prussia, is to be tried by the laws of the country ; and there- 
 fore, if two different codes are recognised in the country, his liability for 
 damages must be regulated by that code under which the act for which 
 damages are claimed may happen to fall. 
 
§ 28.] 79 
 
 district/ precisely as tlie judge of a foreign State, in whicli 
 there are no particular provisional laws, must extract tlie 
 rules for his decisions from the laws of his own State. Accord- 
 ing to Puchta's view, in the second case some other principle 
 than the nature of the circumstances must guide the decision, 
 which must therefore be contradictory or unjust.^ It cannot, 
 of course, be denied that a central authority can lay down 
 fixed rules for the application of the various provincial systems 
 of law, and that the same result may be brought about by 
 custom, and frequently, too, by a combination of the two. 
 For instance, in the absence of special treaties, the sentences 
 of foreign criminal courts will not be carried out in the terri- 
 tory of another State ; but criminal sentences which depend 
 on provincial laws wiU, as a rule, be carried out aU over the 
 territory of the State to which they belong, either by reason 
 of special enactments of the legislature, or of an universal 
 usage.^" By the union of two countries under the same prince, 
 or, in a greater degree, by their imion into one State, the 
 course of legislation in the two territories wiU probably be 
 assimilated, and in the course of time cases of conflict will 
 become rarer ; but when cases of the kind do occur, without 
 any special rules of the kind we have described being laid 
 down for their solution, the same principles must determine 
 them as regulate cases of conflict between the laws of different 
 States. If, for example, a country in which slavery exists 
 is united with one where it does not, it will be just as 
 
 ^ The supreme court of the country decides just in the same way as the 
 court of first instance was bound to decide. In this way, the reason assigned 
 by Puchta (Lectures, § 113) for not admitting, in these circumstances, the 
 application of the rule that every judge must apply the law that prevails in 
 his jurisdiction — viz., that the division of the territory of a State into different 
 judicial districts, under one supreme court, is only an administrative regular 
 tion, and can have no influence on the conflict of law — is to be met. It is 
 not, however, always the case that the difierent provinces of one State have 
 one supreme court. 
 
 " To the contrary effect, see Burgundus, I.e. : Nam et Hannonum statuta 
 prindpali audoritate in contrarmm saiicita sunty at in ambiguo, nonne ea, 
 potius accipienda est interpretatio, qyuz vitio caret. 
 
 i»Hann, Strafprocessorder, § 231: "All sentences of criminal courts in 
 the country are to be carried out all over the country." For a full discussion 
 of the subject of foreign sentences, see below, § 146. 
 
80 [§§ 28, 29. _ 
 
 impossible to follow an escaped slave into the territory of the 
 latter as it was before the union of the countries. 
 
 III. Domicile and Nationality. 
 
 A. Domicilium and Origo by Roman Law. Import of the 
 Roman Doctrink op Domicile for the Determination of 
 Personal Rights in Modern Jurisprudence. 
 
 §29. 
 
 We have seen that many rules of law have as their subject the 
 permanent relations of particular individuals. We have now 
 to inquire what is the ground of the obligation that subjects 
 a person to the laws of a State, with the effect of prescribing 
 for him a permanent set of relations. 
 
 The domicile of a person is generally assumed as the ground 
 for subjecting a person to those laws.-' But it may well be 
 thought that it is on the right of citizenship in a State, and not 
 on the fact of residence, that the apphcation of the laws in 
 question depends; and, as a matter of fact, there is no lack 
 of writers and of enactments that start from this point of view.^ 
 
 ^ So Albertus Brunus, de stat., art. 8, § 136; Alderan Mascardus, Concl. vii. 
 No. 71 ; Burgundus, ii. §§ 1-5 ; Mevius, ad Jus. Luh., ii. oit. 2, art. 10, No. 3 ; 
 Wening-Ingenheim Civilr., i. § 22 ; linger, Austrian Private Law, i. p. 113 ; 
 Thol, § 78 ; Gerber, § 32 ; Demangeat, in his Notes to Fcelix, i. p. 59 ; Savigny, 
 § 359, Guthrie, pp. 125, 126. Wheaton, i. p. 109, reports a judgment of an 
 English court pronounced to this effect. Story, § 40, takes as a fundamental 
 principle the place where a person lives or has his home, without inquiring 
 whether and to what extent another relation may be taken into account. 
 
 2 So Mass6, ii. p. 81 ; Beseler, Ger. Private Law, 1. § 39 ; Austrian 
 Statute Book, § 4 : " Municipal laws bind all citizens of the countries for 
 which they are proclaimed. Citizens continue to be bound by these laws 
 even in the transactions and affairs which they carry on outside the territory 
 of the State." But it is the place of residence which is assumed to reo-ulate 
 the relations of foreigners, § 34. " The personal capacity of foreigners for 
 entering into contracts is in general to be determined by the laws of the place 
 to which the foreigner, by reason of his residence, or, if he has no particular 
 residence, by reason of his birth, belongs as a subject. S. Unger, Oesterr. 
 Privatr., i. p. 163 et seq. 
 
 The Code Civil, in its 3rd article, expresses itself quite distinctly: "Les 
 lois concernant I'itat et la capaciU des personnes rdgissent les Francais mtme 
 rdsidant en pas dtranger." One might infer from that that the legal status 
 
§ 29.] 81 
 
 In relation to this question, many writers use the terms 
 domicile, home, and allegiance as interchangeable.^ 
 
 In Roman law, there were two circumstances which deter- 
 mined the permanent coimection of a person with a particular 
 territory. Viz., origo and doTnicilium — origin and place of 
 abode. Accordrag to Savigny's view (System, viii. § 351, 
 Guthrie, p. 91), the former expression denoted citizenship in 
 a particular community. It took its rise (1) in birth, i.e., in 
 procreation after lawful marriage, for the State where the 
 father had his rights of citizenship, or, in cases of illegiti- 
 mate birth, where the mother's rights of citizenship lay ; (2) 
 in adoption, by which the adopted son acquired the municipal 
 rights of his adoptive father, in addition to those which 
 attached to him by birth, but lost them agaia by emanci- 
 pation ; (3) in the gift of freedom, by which the freedman 
 acquired the rights of citizenship ia the State to which his 
 patron belonged ; (4) by enfranchisement, allectio — i.e., 
 voluntary admission to the rights of citizenship by the proper 
 authorities of the State. 
 
 The rights of citizenship could .not be suspended by the 
 will of those who enjoyed them ; a partial suspension of them 
 could, however, take place on various grounds, to the e:^ect 
 of releasing the citizen from the burdens which such rights 
 of citizenship imposed, apart altogether from the possible 
 case of a release from these rights and burdens by the com- 
 petent authorities. In this way, for example, a wife who was 
 legally married to a citizen of a foreign State was released 
 
 and capacity of foreigners in France would fall to be determined, not by the law 
 of their domicile, but by the law of the State of which they are subjects. As, 
 however, the 13th Article of the French Statute Book allows foreigners who 
 have established a domicile in France, with the sanction of the Government, 
 the enjoyment of all droits civils, the majority of French authors judge the 
 foreigner who has thus settled in France according to French law. Deman- 
 geat, ut cit. Pardessus, v. No. 1476. No doubt the Eoyal Ooart of Paris, 
 on 13th June, 1814 (Sirey, xv. 2, p. 67), decided to the contrary, in finding 
 null the marriage of a Spanish monk with a Frenchwoman, contracted in 
 France, on the ground that a foreigner, in spite of this permission to dwell in 
 France, does not cease to be bound by the laws of his own country, in so 
 far as these concern his personal status and capacity. 
 
 3 e.g. Vattel, i. oh. 19, § 219; Eichhorn, § 34; Schaflfner, §§ 33, 40; 
 Foelix, i. p. 58. 
 
82. [§ 29. 
 
 from the municipal taxes of her native place so long as her 
 marriage subsisted. The whole of this rule of law rested on 
 the fact that throughout the Roman empire, and even in the 
 provinces, the soil was divided into distinct municipal terrir 
 tories, comprising every farm and village, so that every one 
 belonged to some definite municipal, territory. Accordingly, 
 it is plain that any one might belong as a citizen to 
 several municipal communities simultaneously ; but it is more 
 doubtful if every person who hved in the Roman empire 
 necessarily belonged to some such community. Savigny 
 assumes that the following persons did not enjoy the status 
 of citizenship in any particular city : — 
 
 (1.) Foreigners who happened to be admitted to the 
 Roman empire as inhabitants, but had never been admitted as 
 citizens of any particular city. 
 
 (2.) Citizens of any city who had been loosed from its muni- 
 cipal society without having been admitted to any other 
 municipal community. 
 
 (3.) Lastly, the freedmen of the lowest class, who were 
 dediticiorum numero, and belonged to no particular com- 
 munity. 
 
 To determine this question, it is necessary to bear in mind 
 that Caracalla extended to aU the provinces the Roman citi- 
 zenship which had already been communicated to the whole 
 of Italy ; and in this way all citizens of provincial towns 
 obtained a twofold municipal status — that of their own city, 
 and that of the city of Rome, since Roman citizenship was 
 merely the right of citizenship in the city of Rome. 
 
 Now, before that . ordinance of Caracalla, a foreigner had 
 no other way of being admitted to the Roman empire than 
 by a gift of its citizenship from the Roman State — that is, 
 the city of Rome — or from another city belonging to the 
 Roman empire by a gift of its citizenship. Accordingly, the 
 first of Savigny's classes could not exist at this time, nor 
 even after Caracalla. For it is certain that no provincial city 
 or municipium was able to confer a general right of citizen- 
 ship — even if there had been any such conception, which 
 there plainly was not — without at the same time taking the 
 foreigner into its municipal society ; and if the Roman 
 StatQ — or what, in a legal sense, was identical with it, for in 
 
§ 29.] 83 
 
 the later days of the empu-e the municipal authorities of 
 these places are not to be distinguished from the higher 
 municipal authorities — conferred a right of citizenship, that 
 could be none other than the citizenship of Eome. Savigny's 
 first class cannot, therefore, be admitted to have existed. 
 
 But, on the following grounds, his second class, too, would 
 be hard to find. A prominent element of the municipal 
 franchise was the duty, known to be very oppressive, of con- 
 tributing to the taxes of the town, and undertaking its official 
 duties. So general was the endeavour to escape from this 
 oppressive duty, and so strict were the regulations adopted by 
 the magistrates of the Empire to prevent escape, that a State 
 would not easily be permitted to release a citizen from the 
 municipal community unless he was subjected to the burdens 
 of some other township, by acquiring the rights of citizen- 
 ship there. 
 
 The Dediticii certainly did not possess the status of citizens 
 of any particular state ; they were only capable of enjoying 
 those rights which the Romans classed in the jus gentium} 
 It is, however, probable that they did belong to some par- 
 ticular State as passive citizens, if not active. On the opposite 
 assumption they would have had a frivilegium of exemp- 
 tion from the burden of municipal taxes, which is hardly 
 conceivable in the case of a class of persons under so many 
 legal disabilities. It is far more probable that, belonging, as 
 they did,^ to the class of freedmen, they would fall to that 
 city in which their patron had his status of citizenship ; and, 
 indeed, this inference is irresistible, from what is laid down 
 generally as to freedmen. 
 
 Nor does the fact that there is mention made of peoples 
 in the Roman empire who are sime civitate, or aTroXiSes, 
 cast any doubt upon the theory that every inhabitant of the 
 Roman world, with the exception of slaves, who were things 
 in the eye of the law, must either actively or passively have 
 belonged to some definite municipal territory.^ This expres- 
 sion denotes merely an incapacity for all the legal relations 
 
 * Ulp., Frag. XX. § 14. 
 
 ^ Puchta. Institutionen, ii. § 213, p. 453. 
 
 « L. 17, § 1. D. depcenis, 48, 19. 
 
84 [§ 29. 
 
 ■wMcli are comprised in jus civile — a kind of municipal 
 death which was associated with certain punishments. " That 
 place is to be held to be a man's domicile which he has 
 voluntarily chosen as a permanent abode, and, therefore, as 
 the centre of his life as a citizen, and of his business. The 
 notion of permanent abode does not, however, exclude a tem- 
 porary absence, or the possibihty of alteration — reservations 
 which are necessarily implied : all that is meant is, that there 
 is for the present no intention that its endurance shall only 
 be temporary."'' 
 
 Free wiU, and fact in correspondence with that will, con- 
 stituted the essence of domicile by Eoman law; and the for- 
 mer alone would suffice neither to set up nor to change a 
 domicile.^ Exceptions to the free choice of domicile occurred 
 only in the following cases : — 
 
 (1.) Wives had the same domicile as their husbands, and 
 retained it as widows until they acquired another. 
 
 (2.) Legitimate children followed the domicile of their 
 father, bastards that of their mother, without prejudice to a 
 subsequent choice of domicile for themselves. 
 
 (3.) In the same way, freedmen followed the domicile of 
 their patron.^ 
 
 (4.) The state official had his domicile in the place where 
 he was stationed ; the soldier, at the seat of his garrison ; and 
 the exile, in the place assigned to him for his banishment^* 
 (cf. Wetzell, Criminalprozess, p. 346, note 51). 
 
 7 Savigny, § 353, -Guthrie, p. 97, L. 203, De de V. S. : "Earn domum 
 umcuique .nostrum dehere existimari ubi quisque sedes et tabulas haberet 
 suarv/mque rerum constitutionem fuisset," L. 7, 0. de incolig, 10, 39. " Et in 
 eod'em hco singulos habere domioilium non ambigitwr, vM quis larem reruvi- 
 que ac fortunarum sum/mam constituit, unde rursus non sit discessurus, si- 
 nihil avocet, unde quum profectus est peregrinare videtur, quo si rediit pere- 
 grinare jam desidt." Arndt's Pandects, § 40; Story, § 43. "It would be 
 more correct to say that that place is properly the domicile of a person in 
 which his habitation is fixed, without any present intention of removing^ 
 therefrom." 
 
 8 L. 20, 27, § 3 ; L. 31 D. ; Ad municvpalem, 50, 1. 
 
 9 Savigny, § 353, Guthrie, p. 100. L. 5, de situ nwpt., 23, 2. L. 65. D. d& 
 judic., 5, 1. L. 38, § 1. D. 50, 1. L. 22. D. Cod. L. 3. L. 4. L. 6, § 1. 
 L. 17, § 11. D. Cod. L. 6, § 3. L. 22. D. Cod. 
 
 i» L. 23, § 1. L. 22, § 3. L. 31, D. 50. 1 L. 7,'§ 10, D. de interdict^ 
 48, 22. 
 
§ 29.] 85 
 
 It was, no doubt, subsequently admitted, after some doubt 
 upon the point, that a man might have more than one domi- 
 cile, by choosing more than one place at the same time as 
 centres for his activity ; and conversely, a man might be with- 
 out a domicilium altogether. Savigny (§ 354, Guthrie, 
 p. 107) puts the following cases in relation to the latter 
 position : — 
 
 (1.) If one domicUe had been given up, and a new one was 
 being sought for, until this new one had been selected and 
 established.^^ 
 
 (2.) If a man was on his way to the place where the occu- 
 pation of his life was to be, without having any home there 
 to which he was as yet accustomed to retum.^^ 
 
 (3.) If a man without any occupation wandered about 
 seeking his livelihood as a vagabond, with some prejudice to 
 public safety. ^^ 
 
 The fact that every person belonged to a particular muni- 
 cipality (prigo) imported, according ' to Savigny, first, an 
 obligation to bear the municipal taxes ; second, legal juris- 
 diction,^* so that a person could be sued for all purposes 
 in the place where he as a citizen owed obedience to the 
 magistrates. (Perhaps, however, the application of the 
 forwm originis of any individual was confined, like that 
 general forum originis which all citizens of the empire had, 
 along with some other status of citizenship, m the city of 
 Kome, to the special case of a citizen happening to reside in 
 the city whose citizenship he enjoyed, or to have his domi- 
 cile in that city as well as his origo, since there is hardly any 
 mention of the forum originis in the texts).^^ Thirdly, it 
 
 '^ L. 5, D. 50, 1 : " Ldbeo indicat ewm quA pluribus locis ex aquo nego- 
 tietur, nusquam domicilium habere j quosda/m autem dicere refert, plv/ribus 
 locis eum incolam esse aut domicili/u/m hahere." L. 6, § 2 ; L. 27, § 2 ; D. cod. 
 
 12 L. 27, § 2, D. 50, 1. 
 
 1' " Among the Komans, domicile, too, always had reference to a definite 
 municipal territory " (Savigny, § 353, Guthrie, p. 97). 
 
 1* L. 29, D. ad mumeipalem, 50, 1 : " Incola et Ms magistratibus pa/rere 
 debet apvd quos incola est, et illis, apud quos civis erit, nee tantum muni- 
 cipali jurisdictioni in uiroque municipio subjectus, verwm etiam omnibus pub- 
 licis mwneribus fungi debet." 
 
 1^ On this and other reasons for the neglect of the forum originis, cf. 
 Savigny, § 355, Guthrie, pp. 112, 113. 
 
86 [§ S9' 
 
 determined what particular system of law was to be applied 
 to each person. For this assertion there is no immediate 
 and direct authority to be found in the works of Justin- 
 ian. But the passages^" which Savigny cites in proof 
 of it estabhsh its truth in earher times ; and in later times 
 it may easily be assumed that, if different territorial laws 
 continued to exist within the Eoman empire, it was not the 
 domicilium, but rather the origo, which determined in Jus- 
 tinian's time also what law should be applied to each indi- 
 vidual. But the strongest consideration is that the particular 
 law of any individual was considered to be a privilegium, 
 either odio'sum or favorabile, as the case might be, of his 
 status ; and it would obviously have been absurd if any per- 
 son, by the choice of his domicile according to his own plea- 
 sure, could have acquired such a privilegium of status. In 
 that case every man, at least so long as he might Hve in 
 Kome and have his domicile there, would have had it in his 
 power to acquire, without any further trouble, the privileges 
 of a Eoman citizen in aU matters of private rights, even 
 before Caracalla had extended the citizenship to the whole 
 empire. The fact that there is no mention in Justinian's 
 compilations of the. operation of the laws of each man's 
 citizenship upon his private rights and status is explained 
 by the consideration that, when the rights of Roman citizen- 
 ship were opened to all free inhabitants of the empire, 
 the particular systems ceased to exist, although this is 
 denied by Savigny, as we have already noted (cf. supra, 
 § 2, note 6). 
 
 The effect of domicile, on the other hand, consisted merely 
 in the obligation to pay taxes and to answer to the jurisdiction 
 of courts. The former, which has a purely political bearing, 
 cannot interest us further, and the latter is explained by the 
 Eoman jurist by the obedience which was due to the magis- 
 trates of the district in which the person had a permanent resi- 
 dence. Neither was an acquisition of rights ; both implied the 
 assumption of duties, a fact which is most naturally explained, 
 as Savigny observes, in this way, that the acquisition of a 
 
 " Liv. XXXV. 7 ; Gaius, i. § 22, in connection with i. § 89, iii. §§ 120, 121, 
 122 : Gellius, lib. iv. c. 4. 
 
§ 29.] 87 
 
 domicile depends on the caprice of tlie individual, witli wliicli 
 the acquisition of rights is not naturally connected.^^ 
 
 The older authors held the connection between personal 
 rights and domicile to be a law of nature, if they ever had it 
 ia their minds to make a distinction between domicile and 
 allegiance.^* At the most, the fact that domicile is universally 
 taken as the foundation of legal jurisdiction, is adduced 
 as a reason for the appUcation of statuta domicilii to ques- 
 tions of personal status and capacity (Mevius, l.o., " Hcbg 
 enim a pari procedunt forum alicubi sortiri et statuto 
 loci ligari"). But the fact on which this depends is no 
 more proved than the consequences which are sought to 
 be drawn from it, for it is necessary to postulate what we 
 have already shown to be an untenable position — viz., that the 
 law which prevails at the place where the court is situated 
 forbids the application of any foreign law. Savigny refers 
 the connection between the laws that touch the personal 
 attributes of any man and his domicile to Roman law. He 
 rightly concludes that it is impossible nowadays to determine 
 legal status and capacity by the municipal laws of citizenship 
 in each particular city; for we no longer enjoy a constitution 
 in which the territory of the State is altogether made up of 
 different burghal communities (§ 358, Guthrie, p. 122). 
 (One may also add, that even if this could be the case in any 
 particular instance, where, for example, a State consisted of a 
 town without any territory outside itself, yet the dissent of the 
 authors, who had not this specialty of the Roman doctriae of 
 origo before them, shows that Roman law is not admitted as 
 conclusive on this point.) But Savigny takes another step, 
 and maintains (§ 359, Guthrie, p. 126) that ia those cases 
 where any one by Roman law did not enjoy personal rights in 
 
 " The material advantages of a domicile are enumerated in L. 27, § 1, D. 
 50, 1 ; "Si quis in illo (sc. municipio) vendit, emit, contrahit, in eo foro, balneo, 
 spectaculis utitur, ibifestos dies celehrat omnibus denique municipii commodis 
 fruitur, ibi magis habere domiciliv/m." 
 
 18 They frequently draw a distinction between origo and domiciliwri, and 
 understand by the former the domicile which belongs to a man by birth, and 
 by the latter the domicile he acquires in later life. Gaill, too (Obs, ii. 36), 
 assumes that the domicilium originis, by a German usage at variance with the 
 Roman law, was lost by leaving the place. Of. WetzeU, p. 347, note 61 ; 
 Savigny, § 351, Guthrie, p. 87. 
 
88 ■[§ 29. 
 
 aTiy particular city, Lis personal rights were determiaed by 
 his domicile. With us this exception has become the general 
 rule, and therefore the priuciple of the Koman rights of 
 citizenship in some burghal community is also lost, so that 
 personal rights and status are with us fixed by the law of the 
 domicUe, and not by the law of the State to which the indi- 
 vidual belongs as a subject or a citizen. But, as we have shown, 
 Savigny nowhere proves that any person in the Roman Empire 
 had not the municipal rights of some city ; on the contrary, 
 it is certaia that, with the exception perhaps of criminals in 
 prison, whose legal capacity was narrowed to the smallest 
 point possible, and who were treated as civilly dead, every 
 person, in virtue of complete or incomplete citizenship, 
 belonged to some particular municipal territory. Savigny's 
 view, that domicile could have determined the rights of the 
 person among the Romans, rests upon this mist3,ken assump- 
 tion. If these rights were in some particular cases not 
 determined by the citizenship of the individual, there must 
 have been some other permanent link to unite that individual 
 to a definite territory and its laws ; that link, as Savigny goes 
 on to infer, could consist in nothing but in domicile. But a 
 direct answer to this theory is made by the proposition 
 adduced by Savigny himself — viz., that domicile, which 
 depends solely upon the caprice of the individual, is not 
 appropriate for the acquisition of rights, and the assumption 
 of another set of personal rights is not a matter to depend on 
 caprice ; it is further answered by the fact that a man may 
 be altogether without a domicile. 
 
 If Savigny's view were correct, then if we suppose that an 
 individual did not belong to any municipahty either by origo 
 or by domicile, his personal status and rights would remain 
 altogether indefinite, which is impossible ; and if it were also 
 the case, as Savigny lays down, that the communication by 
 Caracalla of municipal rights to the provinces was not 
 connected with the abolition of the particular systems of the 
 many separate municipaUties, it would not be clear how 
 the Roman jurists, in discussing the question of domicile, 
 should have left this highly important question untouched, or 
 how there should be nothing said on the subject in Justinian's 
 collection. But from the position we have taken up we can 
 
§§ 29, 30.] 89 
 
 easily resolve all doubt on the subject ; — domicile had no 
 influence upon personal capacity, and after Caracalla's day 
 there were no more separate systems of law for citizens of 
 proviacial towns ; and therefore in treating of the law of citi- 
 zenship no questions of conflict had to be considered ; while, 
 on the other hand, there were no difficulties suggested by the 
 circumstance that a man by having more than one domicUe 
 might be sued in more than one place, or have to pay taxes in 
 more than one place ; or again, because he had no domicile, 
 had only to answer to the jurisdiction and pay the taxes of 
 the place to which he belonged as a citizen. If, then, domicUe 
 according to Eoman law cannot be held to have been the 
 foundation for the legal relations of the individual, it foUo^vs 
 as a consequence that, unless there is an universal customary 
 law to that effect, the rules of Eoman law as to the acquisi- 
 tion and loss of domicile, and as to the possibility of an 
 individual having several domiciles or none at all, cannot be 
 taken as authoritative for the determination of personal rights 
 even in countries where the Roman law is held as the common 
 law of the land. But it will be hard to show any such uni- 
 versal customary law from the hesitating expressions of the 
 older writers, a hesitation found too, as we have seen, among 
 the more modem writers also, and even in statutes. (Most 
 authors speak without distinction of the conflict of laws in 
 one and the same State and in different States ; in the former 
 case, of course, the municipal laws of citizenship can have no 
 importance). 
 
 B. Modern Law. 
 
 §30. 
 
 The question, then, must be determined on general principles 
 of law. Unger^ determines it on the principle that domi- 
 cile is the centre of a man's legal existence, and that therefore, 
 as a general rule, it is only in the relations that belong to 
 a man's home that the facts are to be found which affect 
 the constitution and development of that legal existence. 
 
 1 P. 164, note 2. 
 
90 [§ 30. 
 
 But in Eoman law domicile was as mucli tte centre of a 
 man's legal existence as it is now, and yet it is certain that 
 the permanent features of status and legal rights were not 
 determiaed by domicile. Then what is to be the answer if 
 a man has no domicile, or has a plurality ? To fall back 
 upon the domicile of his parents in the former case, and in 
 the latter to take his first domicile as fundamental is an 
 expedient dictated by necessity. The former is merely a 
 capricious assumption of a principle for the determination of 
 personal rights, the latter is to deny the principle that has 
 been assumed, because in the particular case it would result 
 in absurd consequences.^ 
 
 As a general proposition, howcTer, the determination of the 
 personal rights of an individual does not depend so much 
 upon his own will as upon the ascertainable purpose of the 
 lawgiver to subject every person to the law which belongs to 
 his permanent relations ; although this purpose of the lawgiver 
 may, perhaps indirectly, be made to depend upon a concur- 
 rence of the will of the individual concerned. 
 
 The State will assuredly not hold persons who have no 
 claim to an abode ia its territories as permanently connected 
 with it and its laws. But as it is a recognised principle of 
 international law and policy ^ that foreigners who have not 
 specially acquired right to a permanent abode may be driven 
 out of any territory ; domicile in the Roman sense — unless it is 
 coupled with the acquisition of such a special right — cannot 
 open the door to the apphcation of laws that require a per- 
 manent state of circumstances to deal with. On the other 
 hand, a foreigner who has acquired such a right, and has at 
 the same time set the centre of his whole hfe in the territory 
 to which he has migrated, has openly expressed his desire to 
 subject the whole circle of his private hfe to the State to 
 which that territory belongs, and is accepted by it as a 
 permanent adherent. Now, if the tie which connects such a 
 person with his home was sundered, if he should shift the 
 seat of his habitation to another State, and acquire there a 
 
 ^ Savigny, § 359, Guthrie, p. 130, assumes the law of the earlier domicile 
 as regulative in such a case, because there is no adequate reason for changing 
 it after the acquisition of the second (cf. too, Holzschuher, i. p. 56). 
 
 3 Heffter, Volkerreoht, p. 115. 
 
§ 30.] • 91 
 
 similar right of residence, we should then, have a proof that 
 the laws of that State in which an indiYidual has his residence 
 and a right of residence, are to regulate his personal rights. 
 
 In modern international law the right of subjects to 
 emigrate to another State is recognised.* Upon this the 
 question arises whether, when a right of residence in another 
 State is acquired by a person and his residence is actually 
 transferred to it, his will is expressed to the effect of abandon- 
 ing connection as a citizen with the State to which he has 
 hitherto belonged. To determine this it is to be remembered 
 that the change of domicile, and the acquisition of a right of 
 residence in another State turn the emigrant into a subject of 
 that other State, and secondly, that it is impossible, in our 
 meaning of the terms, to be the subject of two different States 
 at the same time. 
 
 The former is uievitable, because, although the spheres of 
 pohtical rights and of private rights are by modem law so 
 strictly kept apart that the exercise of political rights may 
 depend on conditions quite distinct from the acquisition of a 
 right of residence, stiU, as there certainly are subjects in every 
 State who do not enjoy political rights, the essence of the con- 
 dition of a subject consists in that connection of the person 
 and the State which cannot be dissolved by the wiU of the 
 State alone — i.e., in the acquisition of a right of residence. 
 As to the second consideration, opinions on that subject are 
 divided. Zacharia^ assumes the possibility of a manifold allegi- 
 ance as far as the States of the German Confederation are con- 
 cerned ; he does not, however, express himself more particularly 
 as to the relations of a person who may in this sense belong 
 to several of these .States. Bluntschli ^ does not consider the 
 union of two laws of domicile in one person to be impossible, 
 and attributes the possibility in part to the civiHsation of the 
 present day. If!, however, there should result therefrom a 
 real conflict of irreconcUeable duties, the older tie of allegiance 
 must take precedence of the newer, and a State, therefore, 
 which should give a foreigner naturahsation or an official 
 position, would find it necessary either to require from him a 
 
 * Cf. Pozl in Bluntschli's Staats-Worterbuch, i. p. 580. 
 ^ Staats und Bundesrecht, i. p. 444 (2nd edit.). 
 " Allegemeines Staatsrecht, i. pp. 167, 168. 
 
92 [§ 30. 
 
 renunciation of his former allegiance, or to allow it to continue 
 and to be preferred to his duty to itself. linger (p. 293) 
 defines citizenship as the subjection of a man's political 
 personahty to a particular sovereign authority, and infers that, 
 as personality is indivisible, no one can be a citizen of several 
 countries at the same time. He assumes, however, that a 
 man's pohtical personality has no connection with his status 
 and rights as an individual, and therefore any one who, by 
 virtue of his residence, belongs to a foreign country in all 
 relations of private law, may yet at the same time belong to 
 the country of his birth as a citizen (p. 164). 
 
 According to our view the matter stands thus : — 
 
 The tie between the person and the State which is estab- 
 
 hshed by a change of residence and an acquisition at the 
 
 same time of a right of residence, binds the immigrant to be 
 
 loyal to the State which receives him for a permanence.'' 
 
 ' Wheaton (§ 334, p. 396) : " In general, the national character of a person 
 as neutral or enemy is determined by that of his domicile." The Prus- 
 sian Statute of 31st Dec. 1842, on the acquisition and loss of the character 
 of a Prussian citizen (Gr. S. 1843, p. 15), agrees with this view, in so far as 
 by § 13 it does not allow residence to confer the character of a Prussian 
 citizen, and by § 12 makes the acquisition of a residence in Prussia dependent 
 on the acquisition of the character of a subject. Cf. too, Hannov. domicil- 
 ordn. of 6th July, 1827, ^5 ad fin. 
 
 Savigny (§ 359, Guthrie, p. 128) disputes the application of the Prussian 
 statute cited above to the determination of personal status and rights, and lays 
 it down that it relates merely to public law, while by §§ 23, 24, and 25 of the 
 introduction to the Prussian AUgemeines Landrecht, personal rights are to be 
 determined by the residence of the individual, and by that alone, without any 
 distinction between natives and foreigners. But a residence cannot be acquired 
 by any one who has not previously acquired the character of a Prussian subject ; 
 and the further proposition, that by the 13th and 23rd sections of the statute 
 the character of a Prussian citizen cannot be lost merely by residence abroad, is 
 no doubt correct, so far as the mere fact of residence goes, but is no more dealt 
 with in these sections than the false proposition that a residence in a foreign 
 country, coupled with the acquisition of a right of residence there, does not 
 destroy the character of Prussian citizenship. The Allgemeines Landrecht 
 obviously proceeds upon the theory commonly adopted by older authorities, 
 that domicile and the character of a subject are always coincident, without 
 having any clear conception of the distinction between this modern idea of 
 domicile, on which all personal rights and status depend, and Roman domicile, 
 which has no other reference than to a matter of fact and the jurisdiction of 
 courts (cf. § 31, note 24) ; it cannot, therefore, prove anything against the 
 theory we are concerned in maintaining. 
 
30.] 93 
 
 This loyalty cannot from its yery nature be limited by a 
 similar bond of loyalty to another and totally independent 
 
 Code Civ., art. 17. 
 
 La qualiU de Frangais se perdray 1°, par la naturalisation aequise en pays 
 itrangerj 2°, par I'aceeptation non autorisde par I'Empereur de fonctions 
 publiques confirks par un gouvemement dtrangery 3°, enfin par tout etablisse- 
 ment fait en pays dtranger, sans esprit de retour. Les Mablissements de com- 
 merce ne pourront jamais Ure considArees comme ayant dtd faits sans esprit 
 de retour." Of. Foelix, i. p. 109. 
 
 Brunswick statute as to real property of 12th Oct. 1832, § 24 : " He who 
 has acquired the right of residence in the way provided by statute within the 
 limits of this territory is held to be a native." 
 
 § 27. " The right of residence is lost by emigration. Privileges that 
 depend thereon are extinguished by the loss of the character that conferred 
 them, or in consequence of the transgression of particular statutes." 
 
 Statute of the Kingdom of Saxony, of 2nd July, 1852, under acquisition and 
 loss of the character of a subject in that kingdom (Statute Book, 1852, p. 241) : 
 
 " § 1. The rights of a subject in the Kingdom of Saxony are conferred — (1) 
 By birth, legitimation, and adoption ; (2) by marriage ; (3) by reception as 
 a citizen ; (4) by undertaking a public office." 
 
 § 6. " The acquisition of the character of a subject by reception is effected 
 by a proclamation that it has been bestowed, issued either by our Govern- 
 ment or by some oflcial body deputed by Government to discharge all such 
 duties." 
 
 § 7. " Such reception can only be conferred upon such foreigners as can 
 assign some definite place in this country as the seat of their residence, and 
 have obtained a guarantee from the parochial authorities of that place that 
 they will be received into the community of that parish so soon as they have 
 been invested with the character of subjects." 
 
 Statute of the Kingdom of Saxony, of 26th Nov. 1834, § 1 : "Every citizen 
 of the Kingdom of Saxony must have a home in some district of the kingdom. 
 The commentary of the Statute Book of the Kingdom of Saxony says, § 9 : 
 " In transactions which have been undertaken beyond the Kingdom of Saxony 
 by persons who are not subjects of the same, the inquiry must be according 
 to the laws of the place of the transaction, even although there may be some 
 reference therein made to obligations laid upon citizens of Saxony." 
 
 In § 10, on the other hand, it is said, " If foreigners take up their residence 
 in the Kingdom of Saxony, their capacity must be determined by the laws that 
 prevail there ; '' and in § 50, " Political laws and proclamations must deter- 
 mine a man's home, and all the rights and obligations arising therefrom. That 
 place will be treated as a man's domicile which the law has assigned to him, 
 or where he has his principal place of abode." According to this paragraph, 
 the declaration of § 10, that "if foreigners take up their residence in the 
 Kingdom of Saxony, their capacity must be determined by the laws that pre- 
 vail there," must have reference to the domicile of Eoman law. 
 
 Whoever is naturalised as a citizen of the States of America must renounce 
 his allegiance to the State of his birth and home, Burge, i. p. 731. 
 
94 [§ 30. 
 
 State, The emigrant undoes the bond of loyalty that has 
 hitherto subsisted between him and the State where his home 
 has been, and can no longer consider himself as belonging to it. 
 From. this it foUows that on emigration from the territory 
 where the laws of a man's home prevail, his personahty, not 
 merely in a pohtical sense, but in reference to his private 
 rights and status,^ goes with him to the State to which he 
 goes.^ 
 
 Feuerbach-"* and Piittlingen (§ 2) express themselves 
 favourably to the view^^ we have maintained.^^ 
 
 Heffter (p. 110) lays down that any one may on sufferance 
 become the subject of different States, but that every State 
 has it in its power to forbid any such double character, and 
 may require the character of subject in any foreign country 
 to be abandoned, or offer the individual his choice. But this 
 seems to be no solution of the question which State is to be 
 preferred in the case of a conflict where the subject has made 
 no new choice, or to which State a person truly belongs.^^ 
 
 The instance that frequently occurs (cf. German Act of 
 
 8 For eren the fact that a person belongs to a particular State as regards 
 his private rights and status presupposes this condition of loyalty or allegi- 
 ance, as the State on its part is bound to take up and protect the persons 
 who are so related to it. 
 
 " A person who transfers his residence to another State, and acquires there 
 a right of residence, loses political rights in his native State except in so far 
 as foreigners may be specially privileged to enjoy these. If States which are 
 closely connected with each other accord special permission to their subjects 
 to enjoy political rights in both, this privilege rests on the assumption that 
 no conflict will arise between them, and that therefore it will always be 
 possible to observe the loyalty due to both. 
 
 10 Themis, 1812, p. 323. 
 
 11 Cf. the judgments of American courts on this point, cited in Story, § 45a. 
 
 12 In this connection the convention concluded between Austria, Prussia, 
 and Russia, with reference to the sujets mixtes in G-allicia, recognises that the 
 character of a subject may be possessed by an individual in more than one 
 country, but with reference solely to property and ownership ; it permits only 
 one sovereignty for the individuals themselves. 
 
 13 The theory of a choice is inadequate, since circumstances may occur to 
 render such a choice impossible (as, for instance, when the individual in a time 
 of war finds himself in the enemy's country), and as by the exercise of a 
 choice, either a new legal relation is established, or an existing one is done 
 away with, we have no determination of the question for the time that is 
 past. 
 
§ 30.] 95 
 
 Confederation, Art. 1 8) of what seems to be a double allegiance 
 in the same individual, imports something very like Heffter's 
 theory.^* But it cannot be meant thereby that a subject of 
 one country who enters upon the service of a foreign country 
 should, during his period of service, be subjected as before to 
 aU the duties that are incumbent on a subject of his original 
 country. This would often nm directly counter to the 
 duties of his new service, and accordingly, we must neces- 
 sarily attach the following meaning to it : — No foreigner can 
 have iu himself an absolute right to be received into our 
 community ; yet, it is certain that such a right may be 
 expressly conferred or reserved, and that happens when the 
 subject of one country, reserviag his rights as such, enters the 
 service of another country, or in some other fashion emigrates. 
 So long as that person is iu a foreign country and has not 
 again reverted to his former home, he is a foreigner, and has 
 no duties to our State ; but if he returns, his former rights 
 as a subject revive, and we cannot refuse to receive him into 
 our State. So long as he does not elect to return to the 
 allegiance of his native State, which he can do either expressly 
 or tacitly, although it is never a thing to be assumed as a 
 matter of course, he owes allegiance to no State but to that in 
 which he has been received, and his personal status and rights 
 and his obhgations are all determined by the laws of that 
 State. Bluntschli's theory that the State of birth must give its 
 consent to emigration, and that therefore the emigrant must 
 obtain a formal discharge, except in so far as the law of his 
 country expressly permits it, explains his view that the law 
 of the State of birth is the stronger. But, as we have noticed, 
 the opposite principle — viz., that emigration is free — is correct 
 according to modem international law, and the express 
 sanctions of this proposition which we find in the codes of 
 different coimtries are not exceptions to a rule, but confirma- 
 tions of the principle. 
 
 " Of. the statute of the Kingdom of Saxony, of 2nd July, 1852, § 20, 2, by 
 which a Saxon who enters the public service of a foreign country without 
 first obtaining the royal sanction, is held to have abandoned his position as a 
 Saxon subject. It follows, therefore, that a Saxon who enters the civil service 
 of a foreign State after obtaining the sanction of his sovereign, retains his 
 position as a Saxon subject. 
 
96 [§ 30. 
 
 If then, on the one hand, a person can, in so far as his 
 status and legal relations are concerned, only belong to one 
 State, we have stiU to consider, on the other hand, whether 
 a person must necessarily belong to some particular State.^^ 
 
 It is a sufficient consideration to determine this question 
 that every State is undoubtedly bound, even where its subjects 
 have been discharged from the ties of their allegiance, to 
 receive them back again into that allegiance in so far as they 
 have not been adopted as subjects by another State.^^ If 
 other States should refuse to adopt a person so discharged from 
 his allegiance, he would, if our postulate were not true, have 
 no right to any permanent place of abode in the whole in- 
 habited globe, and there would be no law at all to determine 
 his personal rights. Treaties concluded between States with 
 this object are merely to be regarded as recognitions of this 
 position by way of treaty by the States who are parties t6 
 them." 
 
 1* If the Eoman theory of domicile were to determine the question, both 
 must be answered in the negative. 
 
 ^^ Martens, § 91. C; cf. also § 4 of the statute of the Kingdom of Saxony, of 
 3rd July, 1852, dealing with some additions to the statute as to domicile : 
 " If persons who once had rights as subjects in this kingdom, but have lost 
 these from any cause whatever, return under circumstances which make it im- 
 practicable to refer them again to any foreign country, then they acquire anew, 
 from the moment when the proclamation to be made by the Minister of the 
 Interior on their account is made (Statute of 2nd July, 1852, § 14), that 
 domicile which they last held before they abandoned their rights as subjects." 
 § 14 of the Statute of 2nd July, 1852 : " It is to be considered as admission 
 to the position of a subject if the Minister of the Interior shall proclaim that 
 any individual who has no domicile in the country, or who has lost that 
 domicile, is to be treated as a subject, because he cannot be sent out of it to a 
 foreign country." The operation of this proclamation is by an express 
 addition thereto to be limited to the period during which the actual ground 
 that prevents his expulsion shall last, except in cases in which it shall be pre- 
 viously shown that the addition of such a reservation is impracticable or 
 meaningless. 
 
 " Cf. 1st section of the Treaty of Gotha between the different Governments 
 of Germany, that has been in force since 1st January, 1852, as to the reception 
 of exiles : "Each of the contracting Governments binds itself : — 
 
 " (a.) To receive those individuals back to allegiance who have always con* 
 tinued to be their subjects : 
 
 " (6.) And also their former subjects, although they may have lost their 
 position as subjects by the law of their own country, so long as they have not 
 by the laws of any other country been adopted as its subjects." 
 
§ 30.] 97 
 
 The validity of the renunciation of allegiance to one State 
 must therefore always be contingent on the condition of a 
 future adoption by some other. It is, of course, obvious 
 that, so long as the person who has renounced his allegiance 
 does not actually return, he can maiataia no claim to the 
 exercise, of political rights, which, in their very nature, pre- 
 suppose a permanent attachment to the State of domicile ; 
 because a resolution to separate from it, such as is implied in 
 the fact of renunciation, has been openly adopted; that domicile, 
 however, by which the personal quahties of an individual are 
 determined, persists until a new one is acquired. Vattel^* 
 expresses himself to this effect, and so does Story, on the 
 ground of the practice of the American courts.^^ 
 
 But in every case a distinction must be made between the 
 actual establishment of the domicile and the right to do so. 
 It sometimes happens that a man acquires the right to 
 reside at one place, and stUl continues, as a matter of fact, to 
 reside in his original home, in order, for example, to be able 
 to carry on a trade there.^" 
 
 In such a case the earher place of residence continues to 
 regulate aU questions of a personal kind, and this, as itself a 
 legal relation established once for aU, must be assumed as 
 continuing until it is proved to have been given up.^^ 
 
 18 I. ch. 19, § 219. 
 
 1' Story, § 47 : " Julian in the Eoman law has so affirmed : ' Si quis domi- 
 ciKo relicto namget vel iterfaciat qucerens quo se conferat, atque ubi constituaty 
 hunc puto sine dormcilio esse.' But the more correct principle would seem 
 to be, that the original domicile is not gone until a new one has been actually 
 acquired /acto et animo." 
 
 ^' Cf. Code Napoleon, art. 17, abs. 2. In the case of married men it often 
 depends upon where their famUies are permanently established, Story, § 46 
 ad fin. Judgment of the Supreme Court at Berlin of 10th Oct. 1857 
 (Striethorst, xxvi. pp. 233-35). 
 
 21 Fcelix, No. 28, p. 57; Bnrge, i. p. 34. But Story's view (§ 47 adfim, and 
 § 48), to the effect that if one has acquired a new domicile, and afterwards 
 is returning to his old home, the domicile of his first home revises during 
 the voyage to it, is not reconcilable with these principles : the voyage must 
 be made on a ship belonging to his first home, and the emigrant must have an 
 absolute right to return. Wheaton expresses himself more cautiously (§ 324, 
 p. 384 : " The native character easily reverts, and it requires fewer circum- 
 stances to constitute domicile in the case of a native subject than to impress 
 the national character on one who is originally of another country." 
 
 H 
 
98 [§ 30. 
 
 In accordance therefore -with what has been said, any legal 
 relations of an individual, apart from the exercise of political 
 rights, which, a;s a general rule, are to be determined by the 
 laws of his home, are to be determined by the laws of that 
 State in which that individual has a residence coupled with a 
 right of residence, that is to say, a right to a permanent 
 abode, which the State cannot of itself put an end to.^^ Most 
 statutes which assign the determination of the legal relations 
 of individuals to the laws of their homes, can be reconciled 
 with this result without much difficulty.^^ 
 
 Those laws too ^* and treaties which make personal capacity 
 and rights dependent on the law of the domicile, are to the 
 same effect, in so far as by domicUe they do not expressly 
 denote a mere fact, as Roman law did by that term. 
 Indeed, one might almost say that even a domicile in the 
 
 '" A right which is limited to a- definite period is not sufficient ; nor does 
 it affect the question that, as in England and the United States of America, 
 the authorities of the State make no use of their right to expel foreigners, or 
 allow them to remain only for a succession of limited periods. 
 
 2' A judgment of the Sup. Ct. of App. at Liibeck, on 21st March, 1861, 
 quoted by Seuffert, 14, p. ] 64, holds it to be a generally recognised proposition 
 of common law, that in questions of succession, it is not the law of the country 
 to which the deceased owed allegiance, but that of the country where he was 
 last domiciled that rules, cf. infra, § 107, note 22. 
 
 "* The Code Civil seems to have adopted different principles for foreigners 
 domiciled in France, and for Frenchmen living abroad (cf. 0. Civ. art. 3, 
 abs. 3) : " Les lois concernant I'etat et la capaciti des personnes rigissent les 
 Frangais mime risidant en pays Mrangery" and art. 13, " L'Stranger qui aura 
 iti admis, par I'autorisation de I'Empereur, b, itahlir son domicile en France, 
 y jouira tons les droits civils tant qu'il continmra Wy risider." But French- 
 men residing abroad are, according to art. 17, only those who live abroad, 
 but still retain esprit de retour, and so are not really domiciled there. 
 That foreigners living in France should not be liable to have their per- 
 sonal status determined by French law, unless they have established their 
 domicile there by the sanction of the emperor, entirely corresponds with the 
 view we have already submitted. The whole legal position of foreigners 
 domiciled in Prance with the sanction of the emperor is, however, shaken by 
 the statute of 3rd Dec. 1849, to the effect that such foreigners can be banished 
 from France provisionally by a Minister, or absolutely on the ground of a 
 resolution of the Council of State — Gand, No. 144. By that statute it is 
 established that such persons can no longer be held to be true adherents of the 
 State, and in consequence, French law cannot be adopted for the determina- 
 tion of their legal position and status. But see Gand, No. 145. 
 
.§§30,31.] 99 
 
 Koman sense could not be acquired in any particular State 
 unless at the same time a right to reside there was also 
 acquired, since an individual, who may at any moment be 
 expelled from the place where he wishes to stay, cannot be 
 regarded in a legal sense in, the same light as one who has 
 settled himself permanently there. Our view finds a direct 
 confirmation in those statutes which make the acquisition 
 of a domicile by a foreigner dependent on the acquisition of 
 the rights of a subject, or on the special permission of the 
 authorities (cf supra, note 7). 
 
 Again, on the other hand, our theory is not contradicted by 
 the statutes which regard the law of the land in which the 
 individual is a citizen as regulating his personal rights and 
 capacity. Domicile, combined with a right of residence, 
 gives rise to nationaUty, and thereafter to citizenship ; for 
 our inquiry it is indifferent whether all political rights are 
 united with a citizenship so acquired or not, since there may 
 be citizens (such as the Jews once were) in all countries who 
 do not enjoy these rights.^^ 
 
 This theory, however, makes it impossible that the difficulty 
 of (1) an individual having several domiciles, or (2) having 
 no domicile, should occur (cf. iaifra, § 31, notes 21-23).^^ 
 
 §31. 
 
 To what nation a person belongs is by the laws of aU 
 nations closely dependent on descent ; it is almost an univer- 
 sal rule that the citizenship of the parents determines it — 
 that of the father where the children are lawful, and where 
 they are bastards that of the mother, without regard to the 
 place of their birth ; and that must necessarily be recognised 
 as the correct canon, since nationaHty is in its essence 
 
 '° [The ItalLan courts, vrhich determine all questions of civil rights by 
 nationality, have held that a Jew may have a Tunisian nationality, and his 
 succession be determined by that law, although Jews are not by the Moham- 
 medan law admitted to the full privileges of citizenship — Court of Appeal at 
 Lucca, 8th June, 1880.] 
 
 " It is merely a practical difficulty in proof to say that domicile or nation- 
 ality sometimes cannot be ascertained. 
 
 On the meaning of domicile in different parts of the same State, cf. § 31, 
 note 24. 
 
100 [§31. 
 
 dependent on descent, Toiindlings must of course constitute 
 an exception to tHs rule ; they belong to tlie State in wliicli 
 they are found.^ 
 
 The case of a subsequent legitimation of children seems, 
 however, to be more doubtful. Inasmuch as legitimated 
 children are by law considered to be legitimate, they too 
 must follow their father. But legitimation rests upon a 
 declaration by the father only, and that may possibly work 
 injustice, so that, in strictness, and to ensure the rights of the 
 children, it is impossible to dispense with the sanction of 
 their guardians ; and as this method of terminating guardian- 
 ship does not belong to the circle of the ordinary obligations 
 and conditions of that office, the sanction must come from 
 the authorities that control all guardians. But in legitima- 
 tion there is no need of any sanction from the authorities of 
 the State to which the father of the child is subject, because 
 it sets these children on an equahty with lawful children, and 
 they enjoy the privileges of subjects as their father does.^ Nor 
 is there any more need for the consent of the government of the 
 State in which the child has had its home hitherto, unless there 
 be an express provision to that effect in the case of minors.^ 
 
 i Vattel, i. ch. 19, §§ 212, 215 ; Heffter, pp. 108, 109 ; Foelix, pp. 53, 54 ; 
 Story, § 46 ; cf. also statute of the Kingdom of Saxony, of 2nd July, 1852, 
 §§ 2, 3. Every child born in England becomes an English subject, whether 
 its parents are or are not English (Blaokstone, i. 336, except when it is the 
 child of foreigners who are in the country as enemies). Story, § 46, and 
 Gand, No. 242, pronounce against this rule, which is founded on feudal prin- 
 ciples, and prevailed in Prance before the Code Napoleon (Demangeat, i. 55fls). 
 
 ^ § 4 of the Treaty of Gotha, ad fin: "Children, who are legitimated by the 
 subsequent marriage of their parents, will be treated as if lawfully born." 
 Prussian statute of 31st Dec. 1842, § 3 : "If the mother of an illegitimate 
 child is a foreigner, and the father a Prussian, the child becomes a Prussian 
 subject by legitimation carried out according to Prussian laws." Cf. statute 
 of the Kingdom of Saxony, of 2nd July, 1852, § 3, "Children born out of wed- 
 lock, whose mother at the time of their birth was a foreigner, but whose father 
 was a Saxon, will be held in reference to their allegiance, to have been law- 
 fully bom, so soon as they shall be legitimated by the subsequent marriage of 
 their parents." 
 
 § 3. " The adoption of a foreigner by a Saxon does not of itself confer upon 
 him the position of a Saxon subject, as special legitimation does. But the 
 Minister of the Interior can add that quality to the act." 
 
 3 The consent that ia demanded on account of the performance of such 
 oMgations as military service, does not at present concern us. 
 
§31.] 101 
 
 That is a consequence of the fact that on tmiversal principles 
 every one has a right to emigrate ; that right cannot be denied 
 to minors, but will rather be embraced for them by the autho- 
 rities that have the supreme rights of guardianship. Adoption, 
 on the other hand, unless there be a special provision to the 
 contrary, cannot give the adopted child the rights of a subject 
 without the approval of the Government, in respect that 
 adoption rests upon the purely voluntary act of the persons 
 who take part in it (Puttlingen, p. 5), and does not confer 
 upon the person adopted the status of the person who adopts.* 
 
 On the other hand, another question remains, whether it 
 be the case that, as Fcelix maintains (pp. 97, 98), the adop- 
 tion of a foreigner by a native, and vice versa, has no effect 
 at all. But since (cf. Demangeat, p. 98) even the lawful son 
 of a foreigner can acquire the character of a native, there can 
 be no good ground assigned for pronouncing that, by reason of a 
 difference in nationahty between the person who adopts and the 
 person who is adopted, adoption is impossible. All the duties 
 and obligations as to matters of private law which usually arise 
 from this relation, are present in this case also, and therefore 
 there exists the right in the father to fix the domicile of his 
 adopted child by virtue of his power as father. If, then, the 
 adoptive father makes his child acquire a domicile in a foreign 
 State, that must be recognised by the State to which that 
 child originally belonged ; such a step can only be taken in 
 practice, if the Government of the State into which the adopted 
 child is to be taken, permits him to acquire a domicile there. 
 The opposite solution could only be reached by refusing a 
 foreigner the rights of paternal control altogether over a 
 native, and vice versa. Dealing as we are solely with the 
 relations of private law, that is not self-evident, but rather, in 
 view of the equal legal capacity of strangers and foreigners in 
 matters of private law, which is to be generally assumed, 
 would reqiiire a special statutory provision. 
 
 Minor children under their father's guardianship no doubt 
 acquire their allegiance along with him, if they live with him 
 in one famUy establishment.^ "It is not reasonably to be 
 
 * Cf. supra, note 2 ad fin. 
 
 * Fcelix, i. p. 106. The provision of the 2nd Article of the French statute of 
 7th February, 1851, quoted in note a by Demangeat, differs from this pro- 
 
102 [§ 31. 
 
 supposed that tte authorities of the State could have in- 
 tended, when they received, the foreigner permanently into 
 connection as a subject, to break up his family. The 
 same ground does not, however, apply to the case of minor 
 children who have already acquired a separate domicile for 
 themselves. It may, however, be that the two cases will 
 easily be reconciled, if all minor children who are still under 
 the guardianship of their father should be accorded the right 
 of acquiring the character of subjects.^ 
 
 The wife belongs to the State of which her husband is a 
 subject the moment her marriage is concluded.'' If, for 
 instance, a foreigner married to an Englishman in England 
 is not regarded as an Englishwoman, that does not mean 
 that she is not domiciled there, or has no right to a permanent 
 residence there, but only that she cannot participate in all 
 the privileges which a native-bom Englishwoman must be 
 allowed to enjoy over a foreigner in England.* By most 
 
 position, in so far as it allows minor children to acquire French citizenship 
 only after attaining majority. This is of a piece with the fact that by French 
 statutes citizenship cannot he acquired or lost by proxy. It is different with 
 regard to domicile (Demangeat on Foelix, i. p. 56, note a) ; and upon that, 
 according to the view we have taken, depends the allegiance of the party. 
 The statute of the Kingdom of Saxony, of 2nd July, 1852, provides by its 11th 
 section : " The reception of a foreigner into citizenship extends to his wife, 
 and to his children still under his guardianship, unless any individual of 
 their number be expressly excepted." 
 
 " Foelix, i. p. 106, is certainly wrong in assuming that the naturalisation of a 
 father must universally carry with it that of his minor children. Cf., too, 
 the Prussian statute of 31st Dec. 1842, § 10 : " The communication of the 
 character of a Prussian extends, in so far as an exceptioif thereto is not 
 specially made, to the wife and the minor children who are stiU under their 
 Other's guardianship." The Treaty of Gotha took the completion of the 
 twenty-first year as a limit, after passing which, children should not be 
 dealt with according to the relations enjoyed by their father. 
 
 ^ Fcelix, i. p. 104 : O'est la .consilience du lien intime qui unit les ipoux 
 consacri per toutes les nations, et passi ainsi en principe du droit international. 
 Code Nap. art. 12 ; Prussian statute of 31st Deo. 1842, art. 10 ; Heinrich's 
 Note to the Hanoverian Eegulation of Domicile, § 5 ac? fins Story, § 46. 
 
 * Cf. Demangeat, i. p. 92, 93, note a. It is, however, illogical in 
 Demangeat to deny to a foreign woman married to an Englishman those 
 privileges in France which are accorded English people there by virtue of 
 special treaties, on the ground that the British Government, which concluded 
 a treaty for English people, did not intend to make any stipulations for 
 persons whom it did not hold to be English. The word English, in such a 
 
§ 31.] 103 
 
 laws, however, a foreign woman married to a native is held 
 to be a native to all effects. All that is matter of doubt 
 is, whether in every case the wife loses her rights as a subject 
 in the State to which both spouses originally belonged, if, 
 after the conclusion of the marriage, the husband enters the 
 community of another State as a subject. Foelix says, that 
 in that event the earlier rights of a subject enjoyed by the 
 wife cease (i. p. 104) ; the contrary is asserted by Demangeat, 
 and other French authors cited by him. But Demangeat 
 must concede that the wife necessarily shares her husband's 
 domicile ; and, as we have seen, domicile and a right of 
 residence make up the character of a subject, so that in 
 reahty the answer he gives to the question is not different ; 
 only we must allow a wife who has survived her husband, 
 or has been separated from him, the right to reacquire the 
 position of a subject in her original home.^ On the other 
 hand, it is a different question whether the wife must neces- 
 sarily follow her husband, if he, after their marriage is con- 
 cluded, resolves to change his domicile, and at the same time 
 his State connection. If the husband proposes to emigrate 
 into another civilised State in Europe, the strength and the 
 sanctity of the marriage tie will lead us to answer in the 
 aflBrmative ; but if the emigration is to be to some country 
 beyond the seas, then every case must be decided according 
 to its own circumstances, and with regard to the moving 
 causes for the emigration. It is matter of dispute whether 
 minors can change their domicile, and can emigrate to 
 another State. Many assert that the minor retains the 
 last domicile of his deceased father ■,^° others admit a 
 change of domicile, so far as it is not effected by any 
 treacherous purpose of the guardian — e.g., a design to 
 profit by some different law of succession at the minor's 
 expense ;^^ others declare themselves universally in favour 
 
 treaty, must be applied to all who belong to that State ; not confined to those 
 who have the full rights and privileges of that State. 
 
 » Cf. Code Civ. art. 19. 
 
 ^^ So Mornacius, Observ. in Cod. 3, 20 ; 0pp. t. iii. p. 328 ; Bouhier, ch. 21, 
 No. 3, cL 22, No. 164 ; BouUenois, ii. p. 69 ; Story, § 46 ; Foelix, i. 
 pp. 55, 56. 
 
 " So J. Voet, Comment. 4, 4, § 10 ad fin. 
 
104 [§ 31. 
 
 of the possibility of such a change being effected by the 
 guardian.'^ The answer to this question must depend on 
 whether the privilege of changing allegiance is to be considered 
 a highly personal privilege, which a representative is not in 
 a position to exercise. This question, again, must be answered 
 in the negative, by reference to the fact that the domicile of 
 minor children can be changed by their father. But this 
 answer must always be qualified by the proviso that no 
 statute shall expressly provide to the opposite effect,^* The 
 alteration of domicile can, however, only take place with the 
 approval of the supreme authority charged with guardian- 
 ship ;" it is no act of regular administration, and may modify 
 personal rights or personal status, matters of the greatest 
 importance to the ward. Under this limitation, a minor may 
 indubitably change his domicile through his guardian. The 
 ward, his heirs and relations, are, by the necessity of obtain- 
 ing the consent of the supreme authority, protected against 
 any fraudulent procedure of the guardian that might in some 
 way be directed against the ward's inheritance ; whereas the 
 opposite doctrine, by which no change of domicile at all 
 is permitted during minority, might no doubt be very preju- 
 dicial for the ward.i^ The termination of majority is, in such 
 a case, to be determined by the law of the State to which' the 
 individual belonged at the time, and not by the law of that 
 State into which he proposes to enter.-^^ It is only possible 
 
 ■*' After much hesitation, Bynkershoeck declares finally for the possibility : 
 QucBst. jurpriv., L. i. c. 16; Rodenburg maintains the same absolutely. — Pars, 
 ii. tit. 2, c. 1, § 6. 
 
 " Cf. Art. 2 of the French statute of 9th February, 1851 ; Foelix, p. 106, 
 note a. 
 
 " Cf. Law of the Kingdom of Saxony, of 2nd July, 1852, § 19, by which 
 the consent of the authorities vested with control of guardianship is required, 
 in order that persons under guardianship may be released from the ties of 
 allegiance. 
 
 1^ In Austria, the guardian of a ward who seeks to acquire the rights of 
 citizenship can change his ward's domicile ; and it has been so decided, with 
 all the legal results, in English and American courts, when the guardian is 
 in bona fide. Unger, i. p. 295 ; Story, § 506. 
 
 16 Cf. the statute of the Kingdom of Saxony, of 2nd July, 1852, § 8, 1, by 
 which foreigners who desire to be received as subjects of Saxony, must give 
 satisfactory evidence of their legal capacity, according to the law of their 
 previous domicile. 
 
§ 31.J 105 
 
 to be received into another State if the connection of the 
 person so to be received with the State to which he has 
 hitherto belonged is severed ; and that severance can only- 
 take place in accordance with the law of this latter State, 
 except when these laws would come into conflict with uni- 
 versally recognised principles of international law, in which 
 case they need not be recognised by the other State. That 
 cannot, however, be the case with any laws that regulate the 
 limits of minority. 
 
 The question whether the State will admit a person in the 
 regular way who is not yet of fuU age, is quite independent 
 of the present question ; and that is the sense in which the 
 provision of the French Legislature — which requires any one 
 who desires to be admitted as a French subject to have com- 
 pleted his twenty-first year — is to be understood. It is not 
 to be understood as though the sole question were as to 
 majority according to French law, and not, at the same time, 
 as to majority by the law of the previous domicile. A widow, 
 on the other hand, cannot be allowed the right of changing 
 the domicile of her minor children." To do so, she would 
 require to represent her children in aU legal matters accord- 
 ing to the law of her State.^* There is, of course, no doubt 
 that the children may, with the sanction of the guardian 
 authorities, follow their mother ;^^ and we can reconcile 
 without difficulty with this rule the provision so often 
 inserted in treaties from considerations of humanity,^" by 
 which children up to a certain age are not to be separated 
 from their parents, and are therefore to be received tem- 
 porarily by the State in which their mother has acquired 
 citizenship. 
 
 No general answer can be given to the question whether 
 the assumption of an official position, or the entry upon civU 
 
 ^'' This is certainly laid down by PoelLx, i. p. 106 ; cf. on the other hand, 
 the statute of the Kingdom of Saxony, of 2nd July, 1852, § 11, abs. 2 : 
 " Children, both legitimate and bastard, of a foreign woman who is received 
 as a subject, remain foreigners, so long as the rights of subjects are not 
 specially conceded to them by the authorities of the State." 
 
 '^ linger, Oesterr. Privatr. i. p. 296, note 29. 
 
 ^° Hannov. Domicilordnung of 6th July, 1827, § 2 ad Jin. 
 
 "» Treaty of Gotha, § 6, Abs. 2. 
 
106 [§ 31. 
 
 or military duties, gives rise to a claim to be received as a 
 subject. That can only be submitted to tbe test of special 
 codes ; and according to them, the acquisition of nationality 
 is, as a rule, united with the assumption of an actual office 
 under Government (c£ Foelix, i. p. Ill et seq.). 
 
 Which law is to decide as to nationality, if foreign and 
 native law give different determinations as to the acquisition 
 and loss thereof ?^^ 
 
 According to the principles we have already laid down, 
 the answer to this question is found without any difficulty. 
 We have seen that the retirement from the community of 
 any State, so long as the person so retiring is not received 
 into any other civilised State, can only be recognised as 
 conditional on a reception into some foreign State which is 
 to foUow. It cannot, therefore, be that any individual should 
 not belong to any State ; and the conditions estabhshed by 
 the legislature of one State for retirement from its com- 
 munity can only come into operation if the conditions of 
 entry into the new community are at the same time satisfied. 
 
 The other case — viz., that the conditions of entry into the 
 new community are satisfied, but that the requirements of 
 the legislature of the State to which the individual has 
 hitherto belonged are not — may be decided by the principle 
 which has also been already mentioned, by which, according 
 to modem international law, every one is free to emigrate to 
 another country. It is left, therefore, to a distinct declaration 
 of will on the part of the emigrant. An exception is permitted 
 in the single case of the emigrant wishing to withdraw him- 
 self by stealth from obligations already laid upon him m. his 
 domicile, as, for instance, the obhgation to military service. 
 In such a case the native State must enjoy the right of forcing 
 the performance of those obligations from the emigrant, 
 although the State into which the person in question was 
 afterwards admitted, is not, by reason of its adoption of that 
 person, now completed and unconditionally binding upon the 
 
 " This question, often overlooked, is tlirown out by Pfeiffer, Princip. 8, 58. 
 He hesitates, however, as to the answer : " If native law is to decide, a man 
 may come to acquire a domicile in a foreign country which is not recognised 
 there. If, on the other hand, one turns to the law of the foreign country, 
 obviously one is moving in a circle." 
 
§ 31.J 107 
 
 Government of the State, bound or even entitled to render 
 assistance to compel fulfilment of that obligation. 
 
 It must always be kept in view, that a merely temporary 
 residence is not equivalent to adoption by a State ; such a 
 doctrine would upset the whole conception of allegiance or 
 nationaHty.22 It is indispensable that the individual should 
 have specially acquired the right of residing in the foreign 
 State, i.e., of belonging to it, and it is not sufficient that the 
 authorities of the State should not regularly make use of the 
 right which belongs to them of expelling foreigners. Of 
 course, it may be borne in mind here that the former right 
 may be acquired by a residence of a certain duration. 
 
 The following case may give rise to doubts. It not un- 
 frequently happens that a man leaves his native land with the 
 purpose of returning to it later, and yet thereafter remaias 
 permanently in a foreign country. If he, at the same time, 
 acquires a right of residence in that foreign State, he can no 
 longer be regarded as a subject of the State that was 
 originally his home, although he may never have expressly 
 proclaimed his retirement from connection with it. Emigration, 
 as a rule, depends upon the free will of the emigrant, and 
 although the State of birth may require an express declaration 
 from the emigrant, or a formal renunciation by him of its 
 community, yet this, on the other hand, does not bind the 
 State into which that person may come to be received.^^ 
 
 ^^ Mohl, Staatsrecht, Volkerrecht, und Politik, i. p. 651, note: "Naturally 
 it must be the law of the State in question that shall decide who is to be 
 treated as a citizen and who as a foreigner. It is entirely in its option to make 
 the conditions of naturalisation difficult or easy. So, too, it may deny to a 
 citizen who has been once naturalised, either temporarily or for life, particular 
 political rights, without thereby altering his main characteristic, and denying 
 him protection against foreign countries. On the other hand, it lies in the 
 nature of the thing that the State need not declare thgse whom it has not yet 
 really admitted into its community to be citizens, nor protect them ; and it is 
 a consequence of elementary legal principles, that the partial fulfilment of 
 the conditions of naturalisation established by law does not at once bring about 
 a change of legal status." 
 
 2* "Time," says the English judge, Sir W. Scott, "is the grand ingredient 
 in constituting domicile. In most cases it is unavoidably conclusive. A 
 special purpose may lead a man to a country, where it shall detain him- the 
 whole of his life. Against such a long residence the plea of an original special 
 
108 [§ 31. 
 
 The only rule that can be recognised within one and the 
 same State, where the rights of citizenship in particular 
 burghal or landward communities have no meaning save for 
 political purposes or ia reference to certain privileges 
 belonging to the citizens of those commTinities,^* is the rule 
 of domicUe.^^ But, on the same grounds as we stated 
 above iu the case of separate States, we must in this case too 
 require that, when one domicile is laid aside in order to 
 estabhsh a new rule of personal status and rights, a new right of 
 residence be acquired, unless there is freedom of immigration, 
 or unless a claim can be made to a right of settlement on any 
 spot in the country .^^ In connection with that comes the con- 
 sideration, that if we are to speak of the personal status and 
 rights as determined by the law of domicile, we cannot conceive 
 one person as having more than one domicile ; and in the same 
 way the subject of a State, ia which there may be various 
 particular systems of law, cannot be without a domicile. The 
 rules of the Roman law fail us in this case again ; for, as we 
 have seen, personal status never depended, according to that 
 law, upon domicile. 
 
 The govemiug principle here is the purpose of the person 
 in question to subject himself permanently to one or the other 
 
 purpose could not be averred." The Harmony, Rob. Adm., Rep. ii. p. 324 ; 
 cf. Wheaton, part iy. c. 1, § 322. 
 
 ^ That exceptions to this rule do occur, and that, for instance, the statutory 
 provision that the law of inheritance to spouses depends on the law of the 
 community of which the husband is a citizen, is not to be denied. But limit- 
 ations of that sort, with regard to persons who have acquired the right of 
 citizenship, are never to be presumed in the region of private law, and it is 
 with it alone that we are here concerned. Besides, if these exceptions are 
 more closely exandned, they are only apparent. Non-citizens as well as citizens 
 are subject to the law that prevails in the community, but the latter have, in 
 addition, a special law of status. Cf. the next note. 
 
 ^ Pufendorf, Observ. Juris, i. obs. 82 : "Incolis quoque non exemtis domi- 
 cilium in ci/oitate (city) habentibus ex jure cimitatis succeditur, etsi jus civi' 
 tatis non habeant. Et ita Senatus Cellensis judicavit, 18th Oct. 1789." We 
 may without difficulty add to that the case of particular rules of law within 
 a particular district being applicable to full citizens only, or other rules being 
 inapplicable to excepted persons. Gerber, D. Privatr., § 52; Eichhorn, 
 §375. 
 
 20 Of., for example, the law of the Kingdom of Saxony, of 26th November, 
 1834, and the Hanoverian regulation as to domicile. 
 
§ 31.] 109 
 
 local system of law, and tlie realisation of tliis purpose by a 
 permanent residence in tliis or in that place ; and therefore, 
 too, if we suppose a case, which may most undoubtedly 
 happen, that any man actually has an establishment in several 
 places, it is not necessary^^ that the domicile which is older 
 in fact should prevail, but rather we must determine the local 
 system which is to regulate the case according to its particular 
 circumstances.^^ 
 
 Domicile in the sense of the Roman law^^ is, however, even 
 at the present day, not without meaning. 
 
 Indeed, it may be said to have retained in full the mean- 
 ing which it had in Roman law. In questions of the juris- 
 diction of courts, most systems allow it to prevail ; and, 
 generally, where relations depending purely on fact — as, for 
 instance, the regulation of a transaction which the parties are 
 free to determine by the usages of this or that country — are 
 in question, it is the actual domicile, and not the acquisi- 
 tion of a right of residence or of allegiance, that we must 
 regard, if the laws of the domicile of the parties are to rule 
 the question at issue. We shall come to be more familiar 
 
 ^ Savigny, § 359, Guthrie, p. 129, would have the earlier domicile prevail 
 absolutely. 
 
 2' Story agrees with this, § 45 et seq. ; see too the decisions cited there, and 
 by Diiring in the Magazine of Hanoverian Law, 7, pp. 48-54 (of. the decision 
 there cited of the Supreme Court at Celle, and the paper in the Magazine of 
 Hanoverian Law, 4, extra vol. p. 80). The earlier domicile wiU only rule when 
 there is doubt whether there are reasons sufficiently strong for the application 
 of the local law of the subsequent domicile. 
 
 28 The reader should not think that to decide personal status and rights by 
 allegiance, instead of by the actual fact of domicile, does not frequently lead 
 to difficulties (see, for example, the case put by Warnkonig in the Gerichtssaal, 
 1857, p. 59, who declares himself to prefer the rule of the actual domicile). 
 It may be that a man lives for a long time in a foreign country, establishes a 
 great trading or manufacturing business there, and yet his succession cannot 
 be regulated by the law of that country. The opposite view, however, has 
 certainly greater difficulties, even putting out of view the insoluble difficulty 
 of a double domicile. To balance the various circumstances, from which we 
 have to infer the animus re/manendi or the anirrms redeundi is very difficult. 
 According to our theory the person whose succession is to be settled can ob- 
 viate all difficulties by obtaining the right of residence, whereas, according to 
 the opposite view, there is nothing to prevent a residence which may be in his 
 mind merely temporary being treated as a change of domicile. 
 
110 [NoteA^ 
 
 with tlie meaning of this principle in the law of commerce at 
 a later stage.^" 
 
 Note A-^on §§ 30, 31. 
 
 [The doctrine enunciated in the text, that private rights 
 and status are to be determined by domicile, coupled 
 with a right of residence — that is to say, by a condition of 
 things that approaches more closely to citizenship or nation- 
 ahty than to mere domicile — is not a doctrine that has ever 
 been received with favour in this country. The domicile, and 
 not the nationahty of a person, is with us the criterion. 
 " The civil status is governed universally by one single prin- 
 ciple, namely that of domicile, which is the criterion estab- 
 lished by law for the purpose of determining civil status. 
 For it is on this basis that the personal rights of the party — 
 that is to say, the law which determines his majority or 
 minority, his marriage, succession, testacy or intestacy — must 
 depend " (per Lord Westbury, in the House of Lords, Udny 
 V. Udny, 1869; 7 Macp. H. of L., p. 89, and L. E. 1 Scotch 
 Appeals, 457). The legal condition called domicile cannot 
 arise without the fact of residence, and the intention of per- 
 manent residence ; but no such idea of citizenship or nation^ 
 ahty as is at the bottom of the criterion for civil status 
 suggested by the author is involved in it, unless it be merely 
 as an element of. evidence to prove the permanence of the 
 intention. It would be quite out of place, then, to cite here 
 any of the Enghsh or Scottish authorities on this subject ; and 
 it would also be superfluous to do so, since a reference to 
 Dicey on Domicile will give the most copious information on 
 the subject. 
 
 The laws of Prussia, and Austria, and the United States, 
 like those of England and Scotland, determine civil status 
 
 2" Although the determination of questions of personal status depends upon 
 the acquisition of a right of residence, and the decision of that question is 
 in many countries a matter for the Government to determine, yet the deci- 
 sion of these officials cannot, of course, have any eflfect upon law-suits in 
 which the question of the determination of personal status, and consequently 
 the question as to whether a right of residence was or was not acquired at 
 some earlier point of time, is raised. In this case, the decision, upon the one 
 hand, is left entirely to the court ; but that decision settles nothing, upon the 
 other hand, with regard to the position and treatment of the persons concerned 
 as citizens. Cf. Wachter, Criminal Law of Saxony, p. 133, note 4. 
 
mteA.] Ill 
 
 and rights by the law of the domicile. Italy, France, Belgium, 
 and Switzerland adopt the principle of nationaUty, giving, 
 however, to a foreigner who is permanently resident in their 
 territories, and has authority from the Government to remain, 
 almost all the privileges of citizenship. In short, they adopt 
 the principle maintained in the text. 
 
 But although nationahty has not, by the law of Great 
 Britain or of most of the German States, any effect upon the 
 status and capacity of persons, it will not be out of place 
 here to refer briefly to the means provided for the acquisition 
 of the character of citizen and the loss of that character in 
 these countries ; in Germany, by the law of 1st June, 1870, 
 and 16th April, 1871, formerly apphcable to the North Ger- 
 man Bund, now to the whole empire ; in England, by the 
 Naturalisation Act of 1870, 33 & 34 Vict. c. 14, by deniza- 
 tion, and by the common law. By the German statute, the 
 quahty of citizenship is acquired either (1) by descent ; (2) by 
 legitimation ; (3) by marriage ; (4) by reception (Annahme), in 
 the case of a citizen passing from one State of the empire to 
 another ; (5) by naturalisation in the case of foreigners. 
 Neither adoption nor domicile wiU give the quality of citizen. 
 Foreigners are admitted to be naturalised on proof that they 
 are sui jwris by their own law, and of good character ; that 
 they have a residence or trading establishment ia Germany ; 
 and that they have the means of providing for themselves 
 and their famUies. Naturalisation and reception are both 
 acts of the Government. 
 
 In Great Britain the character of citizen is acquired (1) 
 by birth in Great Britain or the dominions of the Queen ; 
 (2) by descent (4 Geo. II. c. 21, § 1) ; (3) by naturahsation, 
 denization, and resumption of British nationahty. Deniza- 
 tion is granted by the Crown ; naturahsation by a Secre- 
 tary of State on appHcation made to him by persons who have 
 resided for five years in the United Kingdom, or served under 
 the Crown for that period, and intend to continue so residing 
 or serving ; resumption of nationahty is effected on the same 
 conditions by- British subjects who have become aliens, and, 
 therefore, by a widow who has been married to an alien. 
 Naturalisation and resumption of nationahty carry the rights of 
 citizenship to infant childrenresidingwith their fatheror mother. 
 
112 [.Vote A. 
 
 The quaKty of citizenship is lost in Germany (1) by dis- 
 charge on petition ; (2) by order of the Government ; (3) by a 
 residence of ten years abroad ; (4) by the legitimation of 
 bastard children of a German mother whose father belongs to 
 another nationality ; (5) in the case of women, by marriage. 
 A petition for discharge in conformity with the doctrine of 
 the text cannot be refused except in the case of persons who 
 are or wiU be subject to miUtary service. 
 
 The character is lost m England (1) by a declaration of 
 alienage taken by a person bom in England of foreign parents, 
 or bom abroad of English persons, on being of full age and 
 not under legal disability ; (2) by naturalisation in another 
 State ; (3) in the case of women, by marriage. 
 
 In Germany, the loss and acquisition of the character of a 
 citizen are by statute made to produce the same effect upon 
 the wife and minor children of any person so acquiring or 
 losing his citizenship ; and the importance of citizenship Kes 
 largely in the obHgation to military service which it impHes. 
 
 In America, by an Act of Congress of 27th July, 1868, 
 the freedom of expatriation claimed in the text for all citizens 
 is most fuUy conceded. It is declared to be contrary to the 
 fundamental principles of government that any functionary 
 should give any declaration, opinion, order, or decision to the 
 effect of restraining or questioning the right of expatriation. 
 In the Presidential Message of 7th December, 1875, it is said : 
 " Our legislation does not indicate when and how American 
 citizens may renounce their nationahty." The acquisition of 
 citizenship is not difficult ; within the Union, the citizen of 
 one State giving up his residence there, and going to another 
 to reside, may by this means change his allegiance. 
 
 In countries where nationahty holds the place which domicile 
 does with us, and particularly in France, various interesting 
 questions have been presented as to the effect . of a change 
 of nationality by the head of the family upon the other 
 members of it. But before proceeding to these cases, it is 
 first to be noted that civil rights have been conceded to 
 foreigners living under Government authorisation in France. 
 Such persons have a domicile there, sufficient to entitle them 
 to sue other foreigners in the French courts (C. de Cassation, 
 12th January, 1869). The same privilege is even conceded 
 
FoteA.] 113 
 
 to a foreigner long resident in France, and carrying on busi- 
 ness there (Lortsch v. Lindheimer, 23rd October, 1877, 
 Trib. Comm. de la Seine). An equivalent to authorisation 
 has also been recognised in residence under certain conditions 
 and for a certain period, to the effect of founding a domicUe 
 which mil regulate succession (Dubouchet, 16th December, 
 1879, Trib. Civ. de la Seine). But the general rule as to 
 change of nationality is to the following effect : — "It is a prin- 
 ciple of law that nationality is acquired by birth ; once 
 acquired, it can only be changed in certain specified ways, 
 and by certain fixed rules. The wiU of the father is not one 
 of these ways ; on the contrary, it is the will of the person 
 whose nationality is in question that must be taken into con- 
 sideration. In other words, the nationality of children is a 
 personal quality which the law has not empowered any 
 representative to alter" (Fillinger v. Prefet de la Loire, Trib. 
 Civ. de Montlaizon, 25th JTan. 1877). A father cannot by 
 changing his nationaUty alter that of his minor children, 
 in spite of what the foreign law may assert (C. de Paris, 
 19th March, 1875 ; Laherty v. Prefet de I'Ari^ge, C. de 
 Toulouse, 26th January, 1876). A father, for example, was 
 born in Elsass, and was resident there ; his children were bom 
 in Paris. On the cession of Elsass to Germany, the father 
 became, by the terms of the treaty, a German, but his pupil 
 children wiU remain French. No one can rob them of so 
 highly personal a quality against their wiU or without an act of 
 their own (Stein v. Stein, C. de Cassation, 6th November, 1877). 
 Similarly, a child bom^ in Switzerland, his father being then 
 French, is French from his birth, and cannot lose that nation- 
 ahty by the subsequent naturaHsation of his father in Switzer- 
 land (Constantin, C. de Cassation, 1874 ; also, C. de Lyon, 
 19th November, 1875, case of Fabre). "The right of nation- 
 ality is so precious a possession, and so essentially personal, that 
 it cannot be lost or affected by the act of any representative 
 or by parties who are not of full capacity" (Courts of' Metz 
 and Strasburg, 11th May and 23rd June, 1876, applying 
 the rule of French law). This practice is, as we have seen, con- 
 trary to the law of England and of Germany. The true ratio 
 is in many cases the desire to retain as Frenchmen youths of 
 the mihtary age, but this consideration has not overcome the 
 
114 [Note A. 
 
 more humane and equally reasonable law of Germany. This 
 practice, too, is repudiated in Belgium, where the principle of 
 nationality is ako adopted as decisive of civil rights and status 
 (Schoup, 31st Jan., 1876,0. de Cassation, Brussels ; and other 
 cases). It has been held there, that to maintain the unity 
 of the famUy should be the first object of the law, and that 
 therefore the father by a! change of nationahty should be held 
 to change that of children in family with him. 
 
 French law goes so far as to import this independence in 
 questions of nationality to some extent into the relation of 
 husband and wife. The wife by marriage is held to acquire 
 the same nationality as her husband ; marriage being an act 
 of her free will, the consequences of which she must be held 
 to have in view. So long as that marriage subsists, she is 
 bound by the law of the country to which her husband belongs. 
 But, on the one hand, where a French lady, a minor, was 
 married to a foreigner, and a question was raised as to whether 
 such a marriage was or was not null in respect of her minority, 
 a plea that by the marriage she had changed her nationality, 
 and that the rules of French law were thereby excluded, was 
 rejected as being a petitio principii. On the other hand, 
 there is recognised in France this very equitable doctrine : that 
 where a woman is married to a Frenchman, and the parties 
 have had a matrimonial domicile in France, the husband's 
 country, the husband is not entitled to leave France and 
 obtain naturalisation abroad with a view to altering the con- 
 ditions required for a separation or divorce, or the con- 
 sequences that will result from such procedure. In such a 
 case, the woman can appeal to the courts of the country, to 
 which by her marriage she has become attached, and, since 
 she has not expressed any voluntas to change her national- 
 ityj it wUl, in spite of the change effected by the husband, be 
 held to continue French. Conversely, a woman separated 
 from her husband in France, where there is no divorce, cannot, 
 by obtaining naturalisation in another country where divorce is 
 permissible, enjoy thebenefits of that foreign law. Thecasesillus- 
 trative of this doctrine are more fully cited infra note on § 92. 
 
 The doctrine that nationality is regulative of succession is 
 not very rigidly maintained, since residence of some duration 
 and the manifestation of an intention to remain have been 
 
mteA.] 115 
 
 held sufficient to put the succession of a deceased person 
 under French law (see infra note on § 107). 
 
 Nationality once acquired cannot be lost, except by the ob- 
 servance of certain fixed forms (cf. Fillinger v. Prefet de la Loire, 
 ut supra). A fixed intention to do so must at least be estab- 
 lished ; and to draw in a foreign conscription has been held in 
 France insufficient to show such an intention, there not having 
 been any express renimciation of French nationality (Cercelet, 
 Trib. Civ. de CharlevUle). A native of Switzerland who had 
 been naturalised in America, returned after the lapse of 
 several years, for a temporary purpose, to Switzerland. He 
 was there placed under interdiction as a prodigal ; he 
 pleaded his foreign naturalisation, but his plea was repelled 
 because he had not renounced his Swiss nationahty in the 
 prescribed manner (Gothney, Trib. Fdd^r., 10th June, 1876). 
 A case is reported from the mixed courts of Egypt, which 
 are open only to the subjects of those foreign nations for 
 whose behoof they were constituted. An Ottoman subject 
 desired to sue in the French Court ; but on its being shown 
 to the judge that a subject of that empire cannot change his 
 nationahty without Ucense from Government, his suit was 
 dismissed as incompetent (Osman Ehaleb Bey v. The Governor 
 of Cairo, 10th April, 1876). But a less rigid rule has been 
 occasionally applied in France, whereby, for instance, it has 
 been held that one taking service under a foreign Power 
 shows an intention of throwing off French nationality, to 
 which effect must be given (Bartholoni v. Prince de Lucinge, 
 Trib. Civ. de la Seine). The rule is that a clear and deliberate 
 intention , to renounce the nationality of origin must receive 
 effect (Code Civ. § 9, and Barbet v. Dhainaut, C. de Cass., 4th 
 May, 1881). But such a change cannot affect the rights or 
 status of third parties, such as a wife or children. 
 
 As by the law of Germany, so too by that of France, a bas- 
 tard, who has the nationality of his mother, acquires, on legiti- 
 mation by the marriage of his parents, the nationality of his 
 father (CarmelHni, 13th March, 1879, Tribunal d'Albertville) ; 
 this decision does not fully accord with the theory stated so for- 
 cibly in French law as to the impossibility of altering a status 
 of nationality once acquired in any other way than by an 
 exercise of will on the part of the person whose nationality is 
 
116 [Note A., §32,. 
 
 in question. The explanation probably is, tliat the declaration 
 of paternity required in such circumstances by the French 
 law proTes that in truth the foreign nationality never 
 belonged to the child.] 
 
 IV. Has the Judge only to apply Foreign Law upon the 
 Motion op the Paeties, or is it pars judicis to do 
 so ? How IS THE Foreign Law proved, and what 
 ARE THE Consequences if it shall not be Applied, 
 OR shall be Misunderstood ?^ 
 
 § 32. 
 
 1. There are three different opinions upon the question 
 first stated in this title. According to the strict construc- 
 tion of the first of these, foreign law is merely a fact for the 
 judge, and must be treated solely as a fact in matters of pro- 
 cess ; and accordingly the judge is not required in any case 
 to apply foreign rules of law without an express motion to 
 that effect being made to him by the parties.^ 
 
 The opposite view demands that, if foreign law is to be 
 applied, its application shall not be left to depend upon the 
 
 1 There can be no dispute — in view of principles universally recognised in 
 the civilised world, by which, in matters of criminal law, there is no recogni- 
 tion of the choice of parties, and no opportunity given to them to determine 
 whether a particular act shall be punished, and if so, with what punishment — 
 that, as far as the criminal laws of foreign countries are concerned, they do not 
 in any degree depend upon the initiative of parties ; and, therefore, in this 
 paragraph no further mention of criminal law will be made. 
 
 ^ Oppenheim, Volkerrecht, p. 381. Judgment of the Supreme Court at 
 Liibeob, of 10th December, 1853 (Seuffert, 8, p. 124), that the rule, "locus 
 regit actum," is to be held as a good plea for the defender, if the law of 
 the place where the contract was made differs from that of the place where 
 the court is situated. To the same effect is the judgment of the Supreme 
 Court at Eostock, cited by Seuffert, 8, p. 2. Then the Supreme Court at 
 LiJbeck, on 14th September, 1850, laid down that if this rule was pleaded on 
 appeal, it could not be departed from (Eomei', 2, p. 400). Judgment of the 
 High Court at Berlin, on 19th May, 1857 (Striethorst, 26, p. 49) : " In refer- 
 ence to matters which are to be determined by foreign laws, the existence of 
 the statute or law seems to be a fact which must be proved if it is disputed " 
 (Draft of a Commercial Code for Wurtemberg, art. 997). Judgment of 
 the High Court at Darmstadt, on 12th October, 1850 : " The mere assertion 
 that the contract is invalid according to the law of a foreign country where 
 it was concluded, that being the law to be applied here, is not to be taken 
 as conclusive " (Seuffert, 9, p. 279). 
 
§ 32.] 117 
 
 motion of the parties, and that the party who appeals to 
 foreign law shall only be bound to prove what it is in case it 
 may be held necessary by the court to call for such proof. A 
 difference of opinion obtains among the adherents of this theory, 
 in so far as some require proof of the foreign law in every case f 
 others only in those instances where the judge has not an 
 adequate knowledge of that law without some such proof.* 
 
 An intermediate but less prevalent opinion holds it com- 
 petent for the judge to apply foreign law, but not impera- 
 tive that he should do so.^ 
 
 If one proceeds, as we have done, upon the assumption 
 that the application of foreign laws rests upon an express or 
 implied provision of the domestic law, which commits the 
 decision of the particular question to the laws of another 
 country, there can be Httle doubt of the soundness of the 
 second theory. The opposite view leaves the rules of law 
 which are to be applied to the pleasure of the parties, and 
 obliges the judge— since he can only regard foreign law as a 
 fact, and only take it as parties shall present it to him in 
 the process — to decide upon what may be very strange 
 
 ^ Judgment of the Supreme Court at Liibeck, of 10th December, 1828 
 (Seuflfert, 4, p. 168 ; Eeyscher, Wurtemberg Privatr. § 81). The 53rd section, 
 i. 10, of the General Court Eeguhitions in Prussia provides that proof shall be 
 taken upon foreign law as upon anj' other fact. (Cf. on this provision the 
 judgment of the High Court at Berlin, of 23rd October, 1855, Striethorst, 18, 
 pp. 233, 34 : " It seems, then, to be not doubtful, and has been assumed in 
 the judgment of the High Court up to this time, that the pursuer, who has 
 produced a protest which bears ex facie to have been taken by, a notary in 
 his official capacity, cannot be required to disprove the existence of rules of 
 English commercial law on this sjibject which detract from its validity ; 
 rather it is the defender's business to specify the existence of such exceptions 
 against this protest, and with this view to undertake the burden of proving 
 the foreign statute or law.") 
 
 * Wachter, i. p. 310. A more recent judgment of the Supreme Court at 
 Liibeck, of the 13th January, 1857, recognises, in contradiction to the earlier 
 cited decisions of the same court, that the judge may apply forthwith any 
 foreign law with which he is familiar. The practice of the Supreme Court of 
 Appeal at Cassel follows this (Stirppelman, i. p. 57 it seq.). To the list of 
 adherents of this theory are to be added all those who hold that for the 
 purpose in question foreign law is to be treated after the analogy of a cus- 
 tomary law (cf. Savigny, i. p. 191 ; Mittermaier, Archiv. for Civil Practice, 18 
 p. 67 et seq.y ' Seuflfert, Comment, i. p. 235 ; and Unger, i. p. 306, note 40). 
 
 * Eori, Discussions, iii. p. 29. 
 
118 [§ 32. 
 
 principles of law.^ The intermediate view, wMeli commits 
 the matter to the pleasure of the judge, is at variance with 
 the nature of the judicial office." 
 
 On the other hand, if a party to a suit does not appeal to 
 foreign law, it cannot be said that he thereby impUedly sub- 
 mits himself to his own law. For, as a judgment of a 
 Supreme Court notices,^ we may assume that it is only by 
 an oversight that the party against whom judgment goes has 
 not appealed to foreign law. 
 
 From a practical point of view, objection has been taken 
 to the theory we have adopted, on the ground that it must 
 often involve the judge in unprofitable difficulties,^ and that 
 he cannot be expected to have a knowledge of foreign law. 
 The latter objection is so far well founded that no judge can 
 be blamed for omitting to apply foreign law where parties 
 have not appealed to it, as if he had failed in the discharge 
 of his duty. But the former consideration proves nothing. 
 Very many rules of law, the object of which is nothiug more 
 than the maintenance of some legal principles beyond them- 
 selves, lead in many cases to discussions which are of no 
 practical value, and must yet be respected. We may, how- 
 ever, concede this much — 
 
 If the contentions of parties are founded on native law, 
 and the judge has no particular knowledge that the one con- 
 tention or the other is by foreign law, which must supply 
 the decision of the point if a strict view be taken of it, 
 entirely unfounded, he may in giving judgment proceed on 
 the assumption that the foreign and native law are at one 
 upon the point in question; and the question whether a 
 foreign law is to be applied, and if so, which, may be left out 
 of sight in the judgment as unnecessary to be stirred. This 
 arises from the fact that there are very many rules of law in 
 the different systems of civilised peoples which entirely coin- 
 cide with each other ; and this agreement may reasonably be 
 assumed to exist, if the contentions of parties are, according 
 
 " Cf. on the other hand, Kritz, ii. p. 95 ; Sehaffner, p. 208. 
 1 Of. on the other hand, Waehter, i. 310. 
 
 * Judgment of the Supreme Court of Appeal at Liibeck, on 30th January, 
 1850 (Senfifert, 9, p. 327). 
 » Cf. Art. 997 of the Draft Commercial Code for Wiirtemberg, p. 764. 
 
§ 32.] 119 
 
 to the facts alleged by them, in conformity with the native 
 law of the judge, while no appeal has been made to foreign 
 law.^" Were it not for this assumption, the simplest rules 
 which are indispensable to the law of any civilised State, 
 would have to be sent to proof in any process in which they 
 happened to be involved. 
 
 II. The burden of proof is determined in the same way : 
 the proof is upon that party who alleges a difference from the 
 law of the country where the suit depends. But the pre- 
 sumption of legality must make for instruments officially 
 drawn up in a foreign country, and therefore the burden of 
 proof, as an exception to the general rule, does not . lie upon 
 the person producing such a document, if the form of its 
 execution does not correspond with that prescribed by the 
 laws of the country where the court is situated." 
 
 As regards the procedure in proving the foreign law, it will 
 be conducted in the same way as a proof of a usage of trade 
 or other usage.^^ The judge is not confined to materials 
 which the parties may lay before him, but it is his duty to 
 supply himself with means of proof independently of their 
 aid.^^ The opposite party, too, in accordance with this rule, 
 
 '" Of. the Draft of a Civil Code for the Kingdom of Saxony, § 9, abs. 2 : 
 " If, however, the foreign law is not notorious, or is not referred to, the judg- 
 ment shall be according to native law, and in so far as this rests upon peculiar 
 enactments,, according to natural principles of law " (but see infra, § 105, 
 note 14 ad fin.). 
 
 11 Of. however, the judgment of the Supreme Court of Appeal at Darmstadt, 
 on 14th Sept. 1854 (Borchardt, p. 243), by which the pursuer is required to 
 lead proof that a protest executed abroad, which does not satisfy the require- 
 ments of the German Commercial Regulations, is in conformity with the rules 
 of the foreign law. This decision is explained by the peculiar nature of the 
 instrument in question — ^viz., a protested bill, the legal meaning of which is 
 the same in the law merchant of all European States, as the Supreme Court 
 at Berlin has held (cf. Borchardt, loc. cit.). 
 
 12 In England and America, the court, and not the jury, decides whether a 
 particular rule of law holds in the foreign country (Story, § 638). 
 
 , 1' Cf. judgment of the Supreme Court of Appeal at Eostook, 16th Nov. 
 1843 (Seuffert, xii. p. Ill), and judgment of the Supreme Court of Appeal at 
 Cassel, 1st April, 1859 (Seuffert, xii. p. 254). A judgment of the Supreme 
 Court of Appeal at Liibeck, 22nd Dec. 1856 (Setiffert, xiii. p. 253), held that 
 the court could have no official knowledge of foreign law, and therefore, if 
 the rules of law in question should not be notorious, must acquaint itself with 
 them by prbof. 
 
120 [§ 32. 
 
 could not be forbidden to produce new evidence even after 
 the, expiration of the period allowed for proof; but as the 
 law-suit must necessarily come to an end, and as the party 
 who appeals to foreign law would, if the judge were bound to 
 consider evidence so produced, have the privilege of protract- 
 ing the suit at his pleasure by tendering evidence after the 
 proper time, but still before judgment was given, it seems 
 necessary to exclude the evidence tendered after the expira-. 
 tion of the period of proof, and the judge will have to reject 
 all such memorials without considering their contents, in case 
 a foundation for a proof in repHcation should not have been 
 laid : they may always be admitted by agreement of parties. 
 Everything may be used as evidence which can convince 
 ■the judge of the vaUdity of the alleged rule of law at the time 
 of the iaquiry,^* but no evidence is admitted the weight of 
 which substantially depends on the agreement of the parties. 
 Admissions,^^ therefore, and references to oath, are excluded, 
 except when the latter are to be employed to prove particular 
 facts that bear witness to a foreign law of custom.^^ To 
 admit such evidence would in certain circumstances force a 
 judge to decide contrary to his conviction, according to rules 
 of law which as a matter of fact do not exist. The best 
 evidence as to the existence of any rule of law is no doubt 
 the testimony of foreign courts and counsel of reputation, 
 since in the case of statutes formally published there may 
 yet be some contrary course of practice or customary reading 
 of them, which the judge, with nothing but the text of the 
 statute before him, might never discover ; and besides, the 
 judge may not have at his command sufficient material to 
 enable him to understand the statute.^^ A decision, however, 
 
 " Story, § 639. 
 
 1' See Schaffner, p. 209, who, however, is disposed to admit reference to 
 oath. 
 
 1' Mittermaier(Archiv. xviii. p. 80) excludes reference to oath, as a rule, but 
 allows (p. 75) admissions. That can only be justified to this extent, that if a 
 judge has no definite means of informing himself as to foreign law, he may 
 assume, upon the admission of parties, that it is in conformity with native 
 law. 
 
 1' A rescript of the Koyal Prussian Ministry of Justice, dated 8th Dec. 1819, 
 declares for the Courts of Prussia, that the proof of any English doctrine of 
 law may best be obtained by the opinion of two English counsel, but that the 
 
§ 32.] 121 
 
 may be pronounced on tlie authority of recognised and com- 
 plete treatises, -when they determine the question.^^ But the 
 citation of an isolated passage must be regarded as insufficient 
 without the testimony of foreign courts or counsel in explana- 
 tion of its meaning, since the signification of a rule of law is 
 substantially affected by its relation to other kindred 
 propositions.^^ 
 
 But in view of the possibility of change in any special rules 
 of law, it is not enough to prove that they have been enacted.^" 
 The judge must be persuaded of their continued validity, and 
 the presumption in favour of the constant existence of legal 
 propositions that have once been established is not to be 
 apphed any further in this case than in the case of native law. 
 No doubt it may without difficulty be assumed that statutes 
 which have not been made pubhc for any great length of 
 time are still in force.^^ 
 
 III. Since the application of foreign law is founded on the 
 express or implied directions of the native law, the consequences 
 of omitting to apply them, or applying them wrongly, are just 
 
 repute of these persons as counsel of eminence must depend on notoriety, or 
 must be properly authenticated, and the opinion must be legally correct : the 
 other party is not permitted to adduce an opinion in the opposite sense to 
 refute the one first obtained. 
 
 In France, usages were proved by Actes de NotorUti of the French courts 
 at one time. But now the right of the courts to do so is questioned. Accord- 
 ing to the opinion of various learned lawyers, the testimony of foreign courts 
 will be received as satisfactory (Mittermaier, p. 80). 
 
 18 The text must be authentic. In England, it is necessary that it should be 
 authenticated by the foreign Government or its officers, whose signature, again, 
 must be properly legalised (Story, §§ 640-41). In America, "by express 
 statutory enactment, printed copies of the statutes of any other State, pur- 
 porting to be published by authority, are admitted as prima facie evidence of 
 such laws " (Story, 641a). 
 
 19 A special authentication of the text may often be necessary (of. Mitter- 
 maier, pp. 84, 85). 
 
 '^ Mittermaier is of a different opinion (p. 74). 
 
 *i The reasons we have already cited for according to witnesses of repute a 
 preference, as a rule, over an inspection of the text of the law itself, indicate 
 that we should submit the question to the foreign court adapted as far as may 
 be to the particular case in hand ; but we should never commit the decision of 
 the whole question to the opinion of a foreign tribunal or foreign counsel, as 
 P litter thinks (Fremdr. p. 136) j in any case, the evidence given has no further 
 weight than in so &r as the legal proposition is shown to be undisputed. 
 
122 [§ 32. 
 
 the same as would flow from an infringement of any native law. 
 But in the general case, an infringement of the ji^ clarum in 
 thesi cannot take place in disposing of a case according to the 
 territorial laws of one State or another, since it is unusual 
 that directions should be given for the appHcation of any- 
 particular foreign law ; and so all legal remedies to which 
 such an infringement is a necessary preliminary are excluded, 
 at least, unless an infringement of a rule established by the 
 law of custom is sufficient to call these remedies into action, 
 and it can be established that a custom of applying foreign 
 law in the particular instance does prevail. 
 
 The ordinary right of appeal must be conceded in this 
 case, and that although no reference has been made to 
 foreign law in the first instance. ^^ On the other hand, the 
 penalty of nulHty which is attached to the infringement of an 
 obvious rule of law cannot be held as attaching to such a 
 case as this, unless the application of the foreign rule of law 
 were set beyond all doubt by a course of practice.^^ 
 
 22 Kori, p. 29. The opposite view must be adopted if foreign law be merely 
 viewed as a fact. So the judgment of the Supreme Court of Appeal at 
 Dresden, in Dec. 1855 (SeufiFert, xi. p. 321). 
 
 23 Judgment of the Supreme Court of Appeal at Darmstadt, 20th Dec. 1853 
 (Seuffert, ix. p. 327). " No nullity attaches, by reason of the disregard of a 
 foreign statute by the judge, unless the parties shall have expressly referred 
 him to it." According to French practice, it is only where a treaty or a 
 special provision of French law prescribes that a foreign law is to be taken 
 into account, that a failure to do so is reckoned as a ground for reviewing the 
 judgment (Pardessus, v. No. 1494, under reference to the judgment of the 
 Appeal Court of Paris, 7th Fructidor, an. 7 ; 18th F6vr. 1807 ; 15th Juillet, 
 1811). See, too, a judgment of the same court of 1st Feb. 1813 (Sirey, xiii. i. 
 p. 123). 
 
 [The principles as to the application of foreign law in English and Scottish 
 courts are practically in accordance with the text, particularly in requiring 
 fresh proof in each case, and in refusing to rely upon the language of statutes, 
 or the continuance of a practice without evidence from a skilled person. 
 Although it is still competent both in England and Scotland to ascertain by 
 a judicial remit what is the law of any foreign country, England, and Scotland 
 being for this purpose considered as foreign one to another, parties now more 
 commonly resort to the provisions of the Statutes 22 & 23 Vict. o. 63, and 24 
 Vict. c. 11. The former Act applies to|_cases°where Scottish courts desire infor- 
 mation as to English law, or vice versa, the latter to cases where courts in the 
 United Kingdom desire to be informed as to foreign law. The provisions in 
 both cases are, that where it shall be the opinion of any court that it is neces- 
 sary or expedient for the proper disposal of any action to' ascertain what is 
 
§ 33.] 123 
 
 V. Concluding Remarks. 
 §33. 
 
 ON PEOHIBITOEY LAWS. 
 
 Whatever may be the differences of opinion as to the 
 principles of private international law, aU authors recognise 
 certain exceptional cases in which the judge is driven back 
 upon his native law, instead of being allowed or required to 
 recognise principles which in other cases would demand the 
 application of foreign law.^ 
 
 These cases may be described as cases where we find a law 
 of a strictly positive and imperative character, which must on 
 that account be applied without regard to consequences ; and 
 Savigny, with a nicer distinction, adds to these the cases in 
 which we are concerned with the legal rules of a foreign 
 State, the existence of which is not even recognised in the 
 State of the judge before whom the case in question depends. 
 
 But it is not quite obvious to what laws this character is 
 to be attributed. Savigny ranks in the first class all those 
 laws which have their end and object beyond the province of 
 pure law apprehended in its abstract existence, so that they 
 are enacted not merely for the sake of the persons who are 
 the possessors of these rights. But, as we have seen already, 
 all laws are at bottom enacted for the sake of persons, and 
 therefore the principle of distinction laid down by Savigny 
 
 the law applicable to the facts of the case as administered abroad, or in any 
 part of Her Majesty's dominions, other than that where the court is situated 
 (be it observed that this' lays upon the judge the duty of invoking 
 the foreign law), the court may direct a case to be prepared and laid 
 before one of the supreme courts in the other part of the queen's dominions, 
 or in the foreign country whose law is to be ascertained, in order that they 
 may give an opinion upon it. The court is to apply the opinion of any other 
 court in the queen's dominions when obtained, but in the case of a foreign 
 court may re-remit the case for further consideration, or may make a fresh 
 remit to any other superior court of the same country before proceeding to 
 apply it ; the explanation of the difiference is, that power is given to consulted 
 courts within Her Majesty's dominions to take for themselves, before return- 
 ing their opinion, such further procedure as they may think fit. No such power 
 can, of course, be conferred by the British statute upon foreign courts.] 
 1 Savigny, § 349, Guthrie, p. 76 et seq.s Thol, Introduction, § 74. 
 
124 [§ 33. 
 
 is very indefinite ; and this is fully demonstrated if, with 
 Savigny, we do not merely reckon as belonging to this class 
 the laws that rest upon moral considerations, but take in 
 those also which rest upon public utility, politics, pohce, or 
 pohtical economy.^ 
 
 Savigny adduces as examples of the second class, the cases 
 of the existence in a foreign State of the .legal rule of slavery, 
 or of civil death, and their non-existence in the land to which 
 the coujt that is to decide the question belongs.* Other 
 authors content themselves by giving examples of the laws 
 that belong to this class, and are of a strictly positive and 
 imperative character.* 
 
 But the fact is that, where the definition is so wide, and is 
 of so various a meaning as merely to create opportunities for 
 the application of other principles, the difiiculty is to find 
 ground for an exception. 
 
 All that we can admit is, that the court must never let 
 itself become the instrument of setting up a legal relation 
 which its own law regards as immoral, although foreign laws 
 may regard it as allowable. Every further exception, how- 
 ever, is unjustifiable ; and even a legal relation which we 
 consider immoral, and therefore void, must be recognised by 
 our courts, if it is not to be set up within the territory of 
 our State, or, still more undoubtedly, if its existence is merely 
 the foundation of a link in the chain of legality by which a 
 claim is to be maintained in our courts. The legal rule of 
 slavery must of course be described as immoral by common 
 law ; but if slavery is recognised in another countrj'', and a 
 person in that country acquires property through his slave, 
 that acquisition must be recognised as legal by our courts, 
 
 ^ Most laws which are not logical consequences of general principles, may 
 be referred to considerations of this kind, and according to Savigny's theory; 
 there would be little room for the application of foreign law. 
 
 3 Savigny, § 349, Guthrie, pp. 78, 79 ; and linger, i. p. 163. Thol's 
 definition (§ 74) of the laws that fall under this category — viz., those which do 
 not yield to the will of the individual, is certainly too broad. The laws as to 
 majority and minority are of that kind, and yet Thol regards the lex domidlii 
 of the parties as valid in questions where these laws are concerned. 
 
 * Bluntschli, Deutsch Privatr., i. § 12, p. 37 ; Wetter, Deutsch Privatr., 
 § 42 ; Merlin, B6p. Loi., § vi. 
 
§ 33.] 125 
 
 if the slave-owner should seek to recover his property in our 
 State.^ 
 
 In countries subject to French law, it is considered in- 
 decent to institute an action for aliment against the father of 
 an niegitimate child ; such a suit cannot therefore be raised 
 before the French courts, nor can a plea of compensation, 
 founded on the obligation of a father for aliment, which 
 has arisen in another country,' be sustained in France if the 
 plea of compensation is originally taken or happens to emerge 
 in a French process, for then the court would, according to the 
 theory on which it proceeds, be setting up an immoral plea : 
 on the other hand, a defender cannot, even in a French 
 court, advance a plea of iTidebitwm, if he has paid ahment 
 in consequence of an iUicit connection, upon which, in accord- 
 ance with foreign laws, judgment must foUow, and is required 
 to do so in accordance with foreign law.^ 
 
 The second class of laws placed in this list by Savigny is 
 even wider than the first. Since legal institutions, which 
 may happen to have the same name, but in the method of 
 their apphcation to particular cases vary much in different 
 countries, may therefore be considered as substantially different 
 institutions, it follows that if, for example, in one country 
 the authority of the father gives very extensive powers, in 
 another country very narrow powers, over the chUd in family, 
 we may then assert that in the latter State the institution of 
 a father's authority is quite different from what it is in the 
 former, and therefore in applying the laws of the one on 
 this subject, no regard need be had to the laws of the other.'' 
 In this way we may step by step reach the exclusion of 
 every foreign legal proposition. We shall find occasion at a 
 later stage to recur to this question in treating of the legal 
 capacity and status of individuals, and of the law of 
 obHgations. 
 
 ^ By such a judgment the court no more sets up a claim pronounced by 
 the legislation of their country to be immoral, than it does by believing in 
 the existence of slave States. 
 
 " So, too, Story, p. 170, and the judgments cited by him at p. 167. 
 
 ' As happens with Savigny in his discussion of the law of pledge, p. 197. 
 
^art t:i)irlr. 
 
 SUBSTANTIVE PRIVATE LAW. 
 
 I. Private Law in Geneeal ; Forms oe Legal Transactions ; 
 The Kule " Locus regit actum." ^ 
 
 §34. 
 
 It is a rule admitted by almost every authority since the times 
 of the Middle Ages, that the form of a legal transaction must 
 be recognised as valid all over the world if it is in harmony 
 with the laws of the place in which it was entered into.^ 
 But yet there are disputes as to the extension of this rule 
 to all forms, or its restriction to certain specified forms, and 
 also as to whether the observance of the lex loci actus is to 
 be exclusive or only permissive. 
 
 Just as httle unanimity is there as to the grounds on 
 which this rule can be justified. According to some a 
 distinction must be drawn between the laws relating to 
 persons, to things, and to acts, and no other law can be 
 applied to the last class than that which obtains at the place 
 where the transaction is entered into. This is the old statute 
 
 ^ This rule has reference also to the import of the transaction. In this 
 paragraph we have not as yet anything to do with that subject. 
 
 ' Thol recognises the rule only in a small sphere, § 83, in reference only to 
 those legal transactions which have been entered into with the assistance of ' 
 public functionaries, or drawn solely by such persons ; and Hauss, pp. 45, 60, 
 limits its operation still more strictly. 
 
§ 34.] 127 
 
 theory.^ According to the theory of others, all persons, in 
 so far as the transactions into which they enter are con- 
 cerned, are necessarily subject to the authority of the State 
 in whose territory these transactions take place, and the 
 rule in question immediately follows from this consideration,* 
 Many derive the rule, not from any forced subjection of the 
 parties to the laws of the country where the transaction 
 takes place, but from a voluntary submission on their part 
 (Autonomy).-' Finally, there are others who refer the rule 
 to a general customary law.^ '' 
 
 The first ground assigned proves too much, and, therefore, 
 nothing. Since all legal relations are truly determined by 
 acts of some kind, the law of the place in which that act is 
 done must be the only one that can be apphed in inter- 
 national law — a position which the adherents of this view do 
 not adopt. 
 
 The second rests upon a false assumption, and, if this 
 assumption be conceded, upon an erroneous conclusion, as 
 Wachter has shown. 
 
 The assumption that the State desires to subject all acts 
 
 3 Vinnius, Comm. in Instit. ii. § 14 ; Phillips, D. Privatr., i. p. 192 ; 
 Matthseus, de auctionihus, i. 21, No. 38 ; {v. Grolmann) Ueber Holographische 
 Testamente, p. 14. 
 
 * Gliick, Pandects, i. p. 291 ; Eicoi, Sketch of Burghal Laws, pp. 528, 529 ; 
 Danz, Privatr., i. § 53; Ziegler, Dicastice Cond. 15, § 7; Witzendorf, de 
 Stat. XX. No. 8 ; Kori, iii. p. 4 ; Arohiv. fur die Civ. Praxis, vol. xxvii. 
 p. 309. Those also are to be reckoned among this class who treat the settle- 
 ment of the question by the Lex loci actus as something natural, e.g. PhUlips, 
 i. p. 192. 
 
 = Mevius in Jus. Lub., qu. 4, § 14 ; P. Voet, 9, 2, No. 11 ; Petr. Peck, de 
 Test. Conjug., L. iv. c. 30, No. 1 ; Oolerus, de Proc. Execut., i. c. 3, n. 182 ; 
 Hauss, in so far as he recognises the rule at aU ; Pardessus, v. No. 1485 ; 
 Eichhorn, D. Privatrecht, § 37. 
 
 ^ Gain, iii. 123 ; Mynsinger, Observ. Cent., v. obs, 20, Nos, 4, 5, says, 
 " Vulgo r'eceptum est," and certifies that as the practice of the privy-council 
 of the Empire ; Kierulf, Givilr. p. 81 ; Hartogh, p. 69 ; "Wachter, ii. p. 368 ; 
 Mittermaier, i. § 31 ; Savigny, § 381, Guthrie, p. 319 ; Gerber, § 32 ; 
 Beseler, i. p. 155 ;• Sohaffner, p. 98 ; Foelix, i. p. 164, especially 172 ; those 
 too, who, like Story, § 261, appeal to the Comitas gentium, may be counted 
 here. Of. also Alef, No. 44 ; Wheaton, § 90, p. 121 ; Burge, i. p. 29. 
 
 ' That this rule is not derived from the Roman law, an .assumption made 
 in earlier times (e.g-., by Putter, Eechtsfalle, iii. pt. i. No. 248), we have ajready 
 sufficiently shown (of. p. 13, § 2). 
 
128 [§ 34. 
 
 that take place in its territory to its own laws is incorrect ; 
 for it does not follow tliat it desires to do this in every 
 relation because it has the power to do it; and, if it did 
 desire it, the question would still remain why this deter- 
 roination should be respected by another State in which the 
 transaction may be put forward for recognition. 
 
 But it is just as difficult to acknowledge the soundness 
 of the third ground. The laws which prescribe the forms 
 of legal transactions do not concede anything to the wiU of 
 the parties. If the law requires a particular form, the 
 parties cannot renounce it and contract without it ; and, in 
 the same way, they cannot agree to contract according to 
 the forms of any foreign country they please.^ 
 
 In fact, no one has as yet succeeded in finding an a priori 
 justification of the rule ; and the view which prevails in 
 modem times, and which assumes that it came into existence 
 through a prevailing customary law, is correct. For it is 
 certainly not a self-evident proposition. The form of the legal 
 act is a necessary condition of the act itself, and should there- 
 fore be judged by the same law as that to which the act 
 itself must be subjected. (A testament contains a settlement 
 of succession, and so the form of the testament should be in 
 accordance with the law which is to determine the succession.) . 
 On the other hand, although Wachter has abeady demonstrated 
 by numerous illustrations that such a customary law exists, 
 we have no historical analysis of the doctrine. One cannot 
 deny that there are ample reasons of convenience to justify it ; 
 it is often very difficult, and not unfrequently impossible to 
 observe the forms which the law properly appHcable to the 
 act demands, when parties are drawing up the legal embodi- 
 ment of that act in another place.^ The convenience of the 
 rule, although it may explain its extension, cannot explain its 
 origin, since the rule is at variance both with the law of Rome 
 and the law of personal rights. No doubt there are some 
 passages in the law of Rome which at first sight support it ; 
 and we may believe that there happened here what happened 
 
 ' Wachter, ii. p. 406. " Motive " to art. 999 of the draft of a Commercial 
 Code for Wurtemberg. 
 » Savigny, § 381, Guthrie, p. 318 ; Gerber, § 32 ad fin. 
 
§ 34.] 129 
 
 witli so ma.ny other passages which were employed in the 
 middle ages and later to establish quite arbitrarily rules of 
 law that have a very recent origia. However, in the present 
 case we have not to deal with a rule of Germanic law, which 
 required to be strengthened and saved from destruction by an 
 appeal to the law of Rome ; this new rule was rather in plaia 
 contradiction to earlier legal theories, for according to them 
 the forms of legal acts were determined by the personal law 
 of the contracting parties, and that so absolutely that if 
 these parties were subject to different personal laws, the forms 
 of both had to be observed.'-" It is therefore highly impro- 
 bable that this rule was in this way read into the Roman law, 
 as no doubt did happen in other cases. 
 
 It is often laid down, that this proposition of law took its 
 origin in the sixteenth century, or not much earlier. In reality, 
 however, it is considerably older. As early as the days of 
 Cinus of Pistorium, for instance, it is spoken of as communis 
 opinio^^ that the lex loci contractus is to determine the litis 
 decisoria (in contradistinction to the litis ordinatoria, i.e., the 
 rules for the form and course of procedure) ; that author hesi- 
 tates only in the case of the form of a testament, and remarks 
 that opinions are divided on that question, some being inclined 
 to respect the law that prevails at the place where it was 
 drawn up, some the law of the place where the thing conveyed 
 is situated. The same deliverances may be found in Albericus 
 de Rosate (De Stat., p. II., qu. 8) Petr. de Bellapertica,^^ 
 Paulus de Castr.,-'^ Ralph Fulgosius," and Petr. de Ravenna.^^ ^^ 
 
 It is a fundamental principle of all these older writers, as 
 we have already noticed, that a Statutunv binds none but 
 subjects, and accordingly the legal transactions concluded by 
 
 1" Of. supra, § 3, note 5. 
 
 11 Ad Leg. 1, 0. de S. Trin. 
 
 12 Ad Leg. 1, C. de S. Trin. 
 
 13 Ad Leg. 1, 0. de S. Trin., No. 11. 
 
 1* Ad Leg. 1, 0. de S. Trin., No. 21, 18. 
 
 15 Sect. 4, § 75 in the Tractatus 111. ; J. Ot. de stat., fol. 388, p. 2. 
 
 1^ Durandus, too, Spec. Jur. L. IL, p. 2, de testamentorum edit, § 12, No. 16, 
 discusses the forms of testaments. Bartholus de Salic in L. 1, C. de S. Trin., 
 No. 12 ; Bald Ubald ad L. 2, C. de S. Trin., No. 83 ; Bartholus ad L. 1, 
 0. de S. Trin., No. 14, proposes that the lex loci contractus should alone 
 determine the sollennitates actus. 
 
 K 
 
130 [§ 34. 
 
 foreigners in this country are not in themselves subject to the 
 laws of this country. But they looked upon the rule " locus 
 regit actum " as an exception, and for the most part justified 
 it by the remark that the soUennitates actus belong to juris- 
 dictio voluntaria, and by a generally recognised axiom that 
 the transactions attested before one court must be held by all 
 other courts as well attested. (Cf. Cinus de Pist., Petr. de 
 Eavenna, Bald de Ubald, Durand.) Nothing, therefore, is 
 more likely than that the rule locus regit actum arose in this 
 way. No other form of concluding legal transactions was in 
 use in the Middle Ages than a judicial completion of them ;^'' 
 where private documents are found, the form of the transac- 
 tion is not determined by the document ; all that is thereby 
 effected is the preservation of proof of the transaction. These 
 lawyers had no occasion, therefore, in discussing this rule to 
 take any notice of private documents.^^ 
 
 Now, as far as regards the conclusion of contracts before a 
 court, it is plain that the object of this form, by which a legal 
 transaction was either concluded in open court, or by being 
 recorded in the books of the court was made known to all, 
 was either to give in the particular case a special attestation 
 to the transaction which was held to be necessary, or at the 
 same time to give it a special pubhcity. This end, which the 
 prescribed judicial forms had in view, taken along with the 
 theory that prevailed in the Middle Ages, that the emperor was 
 the true superior of all Christendom, and all judges derived 
 their jurisdiction, at least indirectly, from him, necessarily 
 caused the attestation of a legal transaction before any judge 
 in Christendom to be recognised as valid by any other tribunal. 
 An appeal might also be made to the well-known axiom of 
 Roman law : " Acta facta coram uno judice fidem faciunt 
 
 " It is not meant that the course of procedure to he followed by the Courts 
 of different countries was determined by the same forms ; the inference that is 
 drawn rather assumes a variety of forms. 
 
 1' Briegleb Ueber execut Urkunde, pt, I., p. 30. " The use of private instru- 
 ments was in the lowest credit, and in consequence a notarial instrument was 
 attached to every transaction that was of the slightest importance." 
 
 According to Baumeister (Hamburgisches Privatr., I., § 10, p. 64) private 
 instruments were first used as articles of evidence in Hamburg at the end of 
 the fifteenth century. 
 
§ 34.] 131 
 
 apwd alium." It was, however, natural that every judge 
 should, in attesting any such transaction, proceed according 
 to the laws and rules of process recognised in his own 
 country, and if there had been any attempt to recognise the 
 variety of particular usages and customs, the benefit of these 
 public instruments would have been very much restricted, so' 
 endlessly various, at least in detail, were the forms of judicial 
 procedure. 
 
 To these considerations we may add this fact. The forms 
 which were used in the judicial completion of a contract 
 were, as a rule, formed upon the model of the forms of pro- 
 cess ; a striking example of these is the introduction of the 
 instrumenta guarentigiata, by which the creditor was em- 
 powered to recover his debt forthwith from the debtor who 
 was by anticipation formally adjudged to be due the debt, by 
 means of a, parata executio (Briegleb I. p. 67). Now, no one 
 has ever doubted that the forms of a suit must be deter- 
 mined by the laws of the place where the court is situated. 
 Nothing was more natural than to extend this rule to 
 processes where voluntary jurisdiction was conferred, if these 
 processes were conducted according to the forms of Htigious 
 jurisdiction.-^® 
 
 What was true for judicial transactions would easily be 
 extended to deeds or transactions before witnesses in the con- 
 fused state of legal conceptions in the middle ages.^" The 
 tribunal here really consisted of a number of credible persons 
 who were members of the community and could bear testi- 
 mony to all that passed, while the presiding judge had no 
 duty save to attend to the formal execution of the instrument. 
 
 This explanation is confirmed by the exception, which all 
 writers of the middle ages make, that in conferring real rights 
 
 ^' Cf. the discussion in Cinus de Pistorio in L. un C. de confessis ; Bartolus 
 de Saxoferr in L. 15 D. de re judicata 42, 1, § 1, No. 8. 
 
 2° Savigny gives an instance, History of Koman Law, I., § 27, p. 128. As 
 a general rule, however, the imperfect organisation of the machinery of States 
 in the Middle Ages makes the distinction between witnesses and an official a 
 very doubtful one. If, for instance, it is provided by statute that transactions 
 of a particular kind shall take place before two members of council, who may 
 be chosen at will by the parties, are these persons witnesses, or do they consti- 
 tute an official board ? 
 
132 [§ 34. 
 
 to heritable property the laws of the place where the property- 
 is situated alone decide.^^ 
 
 Considerations of expediency, which we can certainly adduce 
 for this exception, could not very easily have produced a com- 
 munis opinio on this point. But in accordance with the theory 
 of development which we have assumed, the matter is very 
 simply explained by the fact that in the Middle Ages, in 
 litigious suits and processes of voluntary jurisdiction about 
 real property, the tribunal of the place where the thing was, was 
 alone competent, and therefore the forms in use before another 
 court could never become subjects of inquiry. We shall see 
 that where the heir was held to be an universal successor,- 
 and in that character to represent the person of his predeces- 
 sor in all questions of property, and where, therefore, the 
 right of succession did not substantially depend upon the 
 nature of the particular assets of the estate, the forms of 
 testaments were subject to the general rule "locus regit 
 actum ;" but where, on the contrary, the law of succession did 
 no more than supply a particular means of acquiring articles 
 that belonged to the dead man, the forms of testaments were 
 determined by the lex rei sitae. 
 
 The acquisition of real rights in movables and the loss of 
 these necessarily constitute, as we shall hereafter see, a second 
 exception. That these are but seldom mentioned by authors 
 of the Middle Ages and of a later date is, however, explained 
 by the fact that, on the one hand, in the Middle Ages there 
 were many actual and legal obstacles^^ in the way of following 
 out by process real rights to particular pieces of movable 
 property, and such questions therefore were not likely to be 
 brought before foreign courts ; on the other hand, there were 
 not many instances of forms to hamper the transference of 
 real rights to movables. In the single case that is pertinent 
 in this connection, if the heir is not held to be an universal 
 successor, and where therefore we may consider what right 
 can be acquired by testament in the movable assets of a 
 succession, the fiction, which all writers of the Middle Ages 
 who have discussed the conflict of statutes of succession have 
 
 ^ CI. infra, the discussion of real rights, § 61. 
 
 22 We may remember the axiom : " Hand must guard hand." 
 
§§34,35.] 133 
 
 adopted, comes into play — viz., that moyeables follow the 
 person, and therefore are held to be present on the spot where 
 the testator declares his last will, at the moment when he 
 draws up his testament. ^^ 
 
 §35. 
 
 The expressions used by the oldest authors on this subject 
 make it quite plaiu that they do not confine the rule to the 
 form of judicial or even notarial instruments. Any such 
 limitation, in view of the impossibihty of distinguishing 
 between the character of a witness and that of an official 
 person, would in reality have been inconsistent.^ Almost all 
 the authorities lay down the rule in that wider sense, in 
 which it extends to extra-judicial forms, and have no hesi- 
 tation in affirming a customary law in this sense also.^ 
 
 ^ On this question see infra, § 107 et seq. 
 
 ^ Cf. citations supra, and Alb. Brun. de stat., x. § 56 ; Alb. de Kosate, Sect. 
 ix. qu. 46, § 1 e< seq. 
 
 ^ Cf., besides the former citations, Alexandr. Imol. Cons. L., v. cons. 44, 
 Nos. 20, 21 ; Jason Mayn, Cons., vol. III. cons. 59, Nos. 1-3 ; Christian 
 Deois., vol. I., dec. 283, No. 1, decis. 200, Nos. 35-7 ; Huber, § 15 ; Hert, iv. 
 § 10 ; Rodenburg, iii. p. 2, c. 2, §§ 5-7 ; J. Voet, de stat., § 13 ; Burgundus, 
 iv. 7 ; Christianseus, in leg. municip. Mechl., tit. 17. art. 1, No. 11 ; Bver- 
 hardus, Cons., vol. II., cons. 28, No. 80; Hartogh, p. 1 et.seq.j Henr. de 
 Cocceii, viii. § 7 ; Hofseker, de efficacia, § 28 ; Ant. Matthaeus de auctionibus, 
 i. 21, No. 38 ; Molinseus, in L. 1, 0. de S. Trin., p. 6 ; Alderan Mascardus, 
 Conol. 6, No. 22 ; Dassel ad Consuetudines Luneburgenses, c. 8, No. 7 ; 
 Seuflfert, Commentar., i. p. 247 : Wening- Jugenheim, § 22 ; Giinther in 
 Weiske's Eechtslex, iv. p. 737 ; Keinhardt, Supplement to Gliick's Pandects, 
 i. 1, pp. 31-2 ; Miihlenbruoh, § 73 ; Casarejis, disc, de commercio, 43, No. 
 19 ; Stryck., de jure principis in territoris alieno, c. 3, Nos. 18-30 ; Malblanc, 
 Princ. Jur. Rom., § 66 ; Cochin CEuvres,V. p. 697; Holzschuher, Civilr.,i. p. 
 67 ; Mittermaier, D. Privalr., § 31. Cf., too, Burge and Story, who speak to the 
 English and American procedure. linger., Oesterr Privatr., i. p. 205 ; Code 
 Civil, arts. 47-8 (as to Actes de I'dtat civil), art. 999 (as to the forms of 
 testaments) ; Kliiber, International Law, § 55 ; AUgemeines Preuss. Land 
 Recht, 1. 5, § 111 : "The form of a contract is to be determined by the law 
 of the place where it was executed." A judgment of the Supreme Court at 
 Berlin, of 3rd April, 1857 (Striethorst, xxiii. 352), remarks that it must not 
 be supposed that the AUgem. Preuss. Land Recht intended to do away with 
 the rule of common law — viz. : " the form of every legal transaction is to be 
 determined by the laws of the place where it is made," because it did not 
 set out an universal rule to the same effect. Cf. judgment of the Supreme 
 
134 [§ 35. 
 
 The limitation which some authors impose on this rule by 
 confining it to instruments which are executed before a magi- 
 strate in a foreign country {e.g., Thol), must be rejected as 
 irreconcileable with actual existing usage. It would, besides, 
 do much to lessen the benefits of the rule, which are 
 universally admitted ; legal transactions could in that state 
 of matters only be entered into in a foreign country before an 
 official, according to the forms ia use there. No doubt it may 
 be objected (Thbl) that the object of many of the laws dealing 
 with the forms of legal instruments is to be explained on 
 grounds of expediency, their intention being to prescribe the 
 form of legal transactions for all natives without making any 
 distinction as to the place where the legal act took place. 
 But this reasoning, if it were universally apphcable, would 
 make even the transactions entered into before foreign magi- 
 strates invalid, if it should happen that these officials did not 
 make use of the same formalities as ourselves. The forms 
 which our laws require to be observed in the acts of our magis- 
 trates, are held to be as essential for the attestation and legality 
 of these acts as those which they prescribe for the vaUdity 
 of private transactions. What is true of one class must apply 
 to the other also. Quid juris, if native law does not permit 
 
 Court of Berlin, of 13th June, 1857 (Striethorst, 24, p. 370). Bluntschli, 
 D. PriTatr., L p. 12, iii. 1; Renand., D. Privatr., i. § 42, iii.; Oppenheim, 
 Volkerrecht, p. 402 ; Treaty between Prussia and Lippe, of 18tli March, 
 1857, art. 32 (Prussian Collection of Statutes, 1857, p. 289) ; Draft of Civil 
 Code for the Kingdom of Saxony, § 7 : " The laws are just as much 
 applicable to the transactions of Saxon subjects in a foreign country, or 
 even of those who are subjects of another State, if we have to consider their 
 operation in this country. But in questions relating merely to the form 
 of a legal transaction, it will be considered to be in order if it is valid by the 
 laws of the place where it was entered upon, unless the co-operation of some 
 Saxon official is essential to its validity ; " Hanoverian Statute of 29th 
 October, 1822 (G. S., 1822, i. p. 381), § 3: "Parties may also enter upon 
 legal transactions of purely voluntary jurisdiction" {i.e., by the 1st and 2nd 
 sections of this statute, transactions which do not require any previous causce 
 cognitio, and do not belong to what is called mixed voluntary jurisdiction), 
 " before a foreign court as well as a court of this country, always, of course, 
 provided that they observe the formalities prescribed there." The statutes 
 include in acts of purely voluntary jurisdiction all those that depend solely 
 on the free-will of the parties, and to this class, by special enactment, testa- 
 ments and other instruments, mortis causa, are declared to belong. 
 
§ 35.] 135 
 
 some particular legal transaction except before a court, while 
 it is impossible in the foreign country to complete it judi- 
 cially, because the courts there do not possess the voluntary 
 jurisdiction, which is necessary to enable them to deal with 
 the case in question ? In conformity with this reasoning, we 
 should have to deny vaUdity to all transactions entered into 
 before the foreign officials who did not possess the special 
 qualifications which native law requires of the officials who 
 are entitled in this country to give vahdity to the execution 
 of such transactions. 
 
 The observation which is also made on this' point (Thol), 
 to the effect that our rule of law necessarily involves the 
 interpretation, through usage, of an unwieldy mass of legal 
 axioms, every one of which will, as far as its import in inter- 
 national law is concerned, require to be tested and explained, 
 is not to the point, seeing that the rule is founded upon in- 
 terpretation by usage. Whenever we have to do with a legal 
 axiom, which either expressly or impliedly refuses to be 
 expounded to this effect, then interpretation by usage has 
 nothing to do with it, and cannot have. For instance, if by 
 statute certain contracts are only recognised as valid if they 
 are executed before a judge, qualified either in respect of 
 the persons or of the subjects involved to superintend 
 them, validity is denied to any transaction concluded in any 
 other way,^ and the like holds if it is prescribed by special 
 enactment that a transaction shall only be valid under certain 
 forms prescribed by native law, and the transaction is con- 
 cluded abroad under other forms. Legislators have had 
 no difficulty in recognising the rule to the extent we 
 demand in comprehensive enactments pervading entire codes 
 and treaties, and applicable to future as well as to exist- 
 ing laws.* 
 
 According to another view, the rule is to be recognised in 
 so far as it deals with forms which exist probationis causa 
 
 3 Of. note 2, Law of Hanover of 29th October 1822 (§ 1-3), whereby trans- 
 actions to which are limited, by reason either of the persons or of the 
 subjects concerned, to some particular court, cannot be entered upon before 
 foreign courts. 
 
 * See Foelix, i. p. 176, and again as to the numerous statutory proyisions, 
 p. 186 et seq. 
 
136 [§ SB- 
 
 only.^ "We must, however, reject this limitation also. Of 
 course, if it is provided by statute that a particular transac- 
 tion can only be entered upon in a particular form, such a 
 transaction in any other form than that so prescribed cannot 
 be received in evidence ; but this provision, besides provid- 
 ing means of proof, necessarily protects the parties from 
 hastily concluding their transaction, bound up as it is with 
 circumstantial and striking solemnities. Otherwise we should 
 have to conclude that if the consent of the parties to the 
 conclusion of any contract were proved by some means other 
 than those provided by the statute in as clear a fashion as 
 the statutory means could attain, the contract must be re- 
 cognised as binding. But every statute which prescribes the 
 forms of a legal transaction has some end beyond that of 
 insuring means of proof ; the hmitation proposed to be put 
 upon the rule will therefore disappear of itself. 
 
 Further, there seems to be no appositeness in distinguishing 
 between the intrinsic and extrinsic form of a legal transaction.^ 
 The form of such a transaction consists in that which the 
 contracting parties must do in order to give expression to 
 their will in the way required by law, and in nothing else : 
 from this definition of form, as that in which the pleasure of 
 the contracting parties must find its expression, the consent 
 of any third party being entirely foreign to it, it follows that 
 any essentials of such a transaction, the observance of which 
 is not dependent on the wUl of the contracting parties, cannot 
 be dealt with as forms. When the consent of a third party 
 is required by law, that is to be considered as much part of 
 the matter' of the contract as the consent of the original 
 contracting parties. There is an apparent exception in the 
 case where, by law, the consent of a third person cannot be 
 refused, but in such a case that person has no free will, and 
 his consent serves merely to facilitate proof, and to guard the 
 contracting parties from hasty procedure. 
 
 * Gand, No. 350-358, Bonhier, cap. 28, No. 1. The reasoning on which he 
 proceeds is peculiar. He thinks that, as the notary or judicial person who 
 executes the instrument is personally bound to observe the forms prescribed 
 by his own law, that form constitutes a personal statute which must be 
 recognised everywhere. See Boullenois, i. p. 497-498. 
 
 6 So Merlin Repertoire, Loi, § 6th, No. 1. Boullenois, i. 446. Foelix, i. p. 
 ,161. Mass^, ii. p. 121] 26. 
 
§35.] 137 
 
 But if, on the dtlier hand, we were to understand, like some 
 authors, the forms of legal transactions or acts to mean all that 
 a legal act requires in order to give it force and validity, then, 
 since all questions of law arise from some legal transaction, the 
 whole system of law would require to be treated of under the 
 title of the form of legal transactions, as, for instance, may be 
 seen in Foelix's work (p. 162). But it is impossible to apply 
 the rule "Locus regit actum" to the forms or solemnities of 
 legal transactions in that wider sense ; the course adopted is 
 to limit the forms to which this rule is to apply to that class 
 that serve to prove the will of the parties. But, since every 
 form serves this purpose, this limitation is either unimportant, 
 or, if it is thought to indicate those which do nothing more 
 than serve for proof, misleading. As forms in this sense do 
 not, strictly speaking, exist at all, arbitrary and unjustifiable 
 exceptions to our rule will be made. 
 
 For instance, by common law the provisions of the Senatus 
 Consultum Velleianum are merely provisions to limit the form 
 of undertaking suretyship in the case of a woman, since it 
 needed, in order to make the surety valid, that the woman 
 should previously have been informed as to its meaning by a 
 lawyer, or should ratify it by the form of an oath. But no 
 one can say that these provisions exist merely as means of 
 proof, for by them the female sex is protected against hasty 
 acts. Our opponents then go on to pronounce these to be 
 no mere external forms of legal transactions, and hold, there- 
 fore, that the rule "Locus regit actum" is not applicable.'' 
 But the same thing may be said of all forms — e.g., of the 
 necessity of writing. 
 
 The restriction, too, which many authors adopt, to the effect 
 
 ' The decision of the Koyal Court of Paris of 15th March, 1831, which is 
 assailed by Fcelix, i. p. 219-20, explains itself on this ground, if not on the 
 grounds assigned by the court. The question was as to a surety undertaken 
 by a Spanish woman in France, and it was disputed by the woman on the 
 ground of the provisions of the Roman law still valid in Spain. The Court 
 held that, as the real property pledged by the guarantor was situated in 
 France, the capacity of the woman to pledge it must be determined by French 
 law, and generally, that contracts concluded in France, which were sought to 
 be enforced in France, must be interpreted by French law. An appeal was 
 dismissed without a decision on the real question of law^ on the ground that 
 the judge had not gone against any law of the land. 
 
138 [§§35,36. 
 
 that a legal transaction, valid by the lex loci contractus, is 
 not to be recognised if it has been entered into in a foreign 
 country in fraudem legis domesticcB — i.e., in order to with- 
 draw it from the operation of some law that prevails in the 
 native country of the parties, — is, as Wachter has shown, ii. 
 p. 413, without foundation.^ It is lawful to enter into legal 
 transactions in a foreign country under the forms that are valid 
 there, and it is impossible that any fraud can be found in the 
 case of this legalised privilege. An act is held to be in 
 fravdem legis only if the rule of law is incorrectly expounded, 
 or the state of facts to which it is to be applied is suppressed 
 or misrepresented. Neither can be asserted of the case we 
 have put.® 
 
 Still less can anything depend upon whether it was pos- 
 sible foi* the parties to observe any other law than that which 
 prevailed at the place where the transaction was entered into : 
 such a limitation is quite arbitrary and unpractical, and is at 
 variance with that which must be recognised as the prevail- 
 ing theory .1" 
 
 §36. 
 
 Although we must cast aside these arbitrary limitations of 
 the rule, we must not Jay it down that legal transactions can 
 only be recognised as vahd if the Lex loci actus is observed, 
 in so far as their form is concerned. If we assume, as we 
 have done, that the rule takes its rise in customary law, it 
 must be held to be for the assistance of the contracting 
 
 8 P. Voet, cap. 2, § 9, No. 9. Weber, Naturl. Verbindliohkeit, § 62. 
 Thibaut, § 38. Miihlenbruch, § 63. 
 
 ^ Thol, § 65. On the other hand, one does not evade a rule of law by ex- 
 cluding the possibility of its application, and avoiding the act for which it 
 makes a regulation. The same end can often be reached by different ways, 
 the one of which causes more, the other less expense, trouble, delay, and 
 other disadvantages. If we for that reason avoid the one and follow the other, 
 we do not evade the application of a rule of law, but make it impossible to 
 apply it. 
 
 " See to the contrary, Wachter, ii. p. 416. Hauss makes some important 
 remarks, which are to some extent contradictory, p. 45 and p. 60. On the 
 other side, Foelix, i. p. 173. Kieler Juristenfaculitat bei Brinckmann, Wissen- 
 chaftlich Rechtskunde, i. p. 10. Judgment of the Supreme Court at Stuttgart, 
 July 1, 1852 (Seuffert 6, p. 1.) Judgments of Supreme Court of Appeal at 
 Liibeck, 14th and 30th September, 1850 (Eomer. 2, p. 410-422). 
 
§ 36.] 139 
 
 parties that it exists, and not as a compulsory form. These 
 parties, therefore, have it ia their power either to observe the 
 form which is recognised in the country where the transac- 
 tion takes place, or that -wrhich is provided by the laws to 
 which the transaction is siibject.^ 
 
 In this connection it is well to remember that, in the case 
 of mutual contracts, there would actually need to be a con- 
 sideration of the laws of the domiciles of both parties if the 
 lex loci contractus were not to rule. This we have hitherto 
 assumed as self-evident, and later,, in the subject of the law 
 of obhgations, we shall recur to it. If these laws in a case 
 of the kind were different, and both parties had not observed 
 the forms required by both, then the contract, unless it is 
 voluntarily fulfilled, is simply null, unless the provisions of 
 the law of the place of execution are to be respected. No 
 preference can be given to either system of law, since all 
 arguments are as much in favour of the one as of the other. ^ 
 Mutual contracts, therefore, if they are not in conformity with 
 the forms of the lex loci contractus, can only be recognised 
 as valid if they are in conformity with the forms which are 
 recognised at the domicile of both of the contracting parties. 
 
 It must at the same time be remarked that the observance of 
 the forms prescribed for any contract constitutes the best proo'f 
 of the expression of will to enter upon it. If, therefore, the 
 forms prescribed by the law of the place of the contract are 
 not followed, it will often be doubtful whether the negotia- 
 tions of parties are or are not be considered as mere prelimin- 
 aries. The wUl of the parties to undertake the contract 
 must be demonstrated by some other special proof 
 
 Even if the forms which are required by the native laws 
 of both contracting parties happen to be observed, this doubt 
 must be still removed ; and as a general rule it cannot be 
 
 1 Rodenburg, Tit. 2, 1. 3, §§ 2, 3; Foelix, i. p. 180 ; Wachter, ii. p. 377-380; 
 Savigny, § 382, Guthrie, p. 325. Cf. sketch of Code for Saxony, § 7, 
 and Hanoverian Law of 29th October, 1822, § 1-3 {supra § 35, note 2 ad fin), 
 [Cf. infra, p. 144.] 
 
 2 The rule, " Gommodissimvmt est id acci/pi, quo res de qua agitur magis 
 valeat," relates to the interpretation of the meaning, and not to the form of 
 the transaction ; and it is with the form alone that we are at present con- 
 cerned. The forms of contracts are entirely beyond the control of the parties. 
 
140 [§ 36. 
 
 dispelled if the natire laws of the contracting parties pre- 
 scribe no particular form for the transaction in question. 
 The -validity of such a contract will seldom fall to be affirmed, 
 except when subjects of the same State make a contract in 
 a foreign country, or some one in a foreign country executes 
 a unilateral deed, such as a testament. But in the former 
 case a transaction in a form which is Talid by the laws of 
 the parties' native country cannot, as a matter of course, be 
 treated as binding. There is, as a general rule, a want of 
 proof of the will to enter upon a binding engagement if the 
 parties do not know each other to be fellow-countrymen, or 
 if the transaction is one which has no reference to the 
 domicile of the contracting parties, or has no connection 
 with the personal intimacy of the parties (e.g., if the con- 
 tract, according to the meaning of parties, is to be carried 
 out on the spot, or if it is concluded on the exchange or 
 in the market, and falls under the laws that prevail there, 
 on the ground that, where there is so much common inter- 
 course, it is only reasonable that one common law should 
 bind all who resort to it). 
 
 It is different if the contract is really meant to be carried 
 out ia another country ; or if there is some consideration of 
 personal intimacy to be taken into account, as is the case 
 in the contract of marriage, to be dealt with hereafter. 
 
 In the case of unilateral acts these doubts do not occur so 
 frequently, and are to be treated as settled if the particular 
 forms prescribed by the native laws of the party execut- 
 ing them are observed. The wUl to execute a valid act is 
 in this case proved by the observance of the forms. Since 
 the laws of nearly every country prescribe particular forms 
 for last wills, it is most natural that instances of the applica- 
 tion of the laws of the domicile should be presented in this 
 connection ; and it is this question which is chiefly dealt 
 with by authors on the subject, while they do not concern 
 themselves with what is, as a matter of fact, not a very fre- 
 quent occurrence — ^viz., the neglect of the lex loci actus in the 
 case of bi-lateral contracts. We have no right, therefore, to 
 hold those persons who apparently take no heed of anything 
 but the lex loci contractus to be opponents of our theory, 
 unless they expressly reject the validity of the lex domicilii 
 
§ 36.] 141 
 
 in every case such as we have put. We may, indeed, safely 
 assume that they agree with our theory, if they propose to 
 recognise the vahdity of a testament executed in a foreign 
 country in cases in which it is in conformity with no other 
 law than that of the domicile of the testator.^ 
 
 But just as we require extraneous proof of the will of 
 parties to enter upon a legal act according to the laws that 
 prevail in their domicile, that will may be left doubtful 
 even in cases where the form is according to the lex loci 
 actus, especially in cases of unilateral acts, if it should 
 happen that such acts require fewer forms according to the 
 rules of law in force on the spot where they are executed 
 than they do according to the laws of the domicile of 
 the person who executes them ;* and the same doubt may 
 
 3 Hert, iv. 23, 25 ; Eodenburg, ii. u. 3, §§ 1, 2 ; Hofacker, De Effic, § 28 ; 
 Seger, p. 24 ; Ziegler, Concl. 15, § 16 ; Witzendorflf, xxvii., No. 7 ; Diony- 
 sius Gothofredus, Ad Leg., 20, D. de Juris Diet., 2, 1 : Bouhier, cap. 28, 
 No. 20 ; Vattel, ii. c. viii., § 111 ; Mittermaier, D. Privatr., § 32, p. 121 ; 
 Gand, No. 5Y9 ; Burge iv. p. 588. BouUenois is quite illogical (i. p. 422, 
 and ii. p. 15) in allowing the lex loci actus alone to rule, while he still gives 
 inhabitants of provinces where holograph wills are recognised, the privilege 
 of availing themselves of this simple form in a foreign country. Of. with 
 this reasoning, in which the form of a holograph will is treated as a per- 
 sonal privilege, with the judgment of the Appeal Court at Paris, reported 
 by Sirey, v. 1, p. 357. Some of the authorities quoted above limit the vali- 
 dity of a testament which has been executed according to the laws of the 
 testator's domicile, but is not in conformity with the form of the lex loci 
 actus, to the property which is situated at that domicile ; but under the rule, 
 " Mohilia ossibus inherent," they include in this all moveable property. We 
 shall discuss this question hereafter in connection with the law of succes- 
 sion. It is only by a very few authors that we find it expressly remarked 
 — a remark for which they give no justification — that a testament, valid 
 according to the laws of the testator's domicUe in its form, is null if it does 
 not in form answer to the requirements of the laws of the place where it is 
 executed (Eiccius, p. 533 ; Holzschuher, i. p. 81. Of. also the citations 
 given by Fcelix, i. p. 162-4). The kernel of this theory lies in the erroneous 
 assumption that the law desires to apply its authority to all and every act 
 that takes place in its territory — a notion we have already combated. Cf , 
 too, the judgment of the Court of Appeal at Paris of 9th March, 1853, 
 reported by Demangeat in his note to Foelix, i. p. 184. 
 
 * Cf. Mittermaier's note, § 31. 
 
 In this sense the form of a legal act has reference to the will of the contract- 
 ing parties, — not, however, meaning thereby that we should test in this way the 
 validity of the form, but merely determine its import upon the binding force of 
 
142 [§ 36, 
 
 arise in tlie case of bilateral contracts, if, for instance, tlie 
 contract is made while the parties are travelling by rail or 
 mail-coack^ In the latter case there may even be some 
 doubt as to where the contract was concluded. For there is 
 nothing at aU to show, if different laws prevail at the diffe- 
 rent stages of the journey, which of them is to prevail as the 
 lex loci contractus, and if we were to adopt the theory which 
 makes the lex loci contrcuitus the sole rule as to the form of 
 every legal act, we should have no principle of determination 
 to guide us. But, according to the view we have maintained, 
 the act is valid if in its form it accords with the laws of the 
 domiciles of both contracting parties.^ 
 
 the act. Perhaps it is from this fact, which is undoubtedly entitled to much 
 respect, that the theory by which the rule " Locus regit actum " is founded 
 upon a voluntary submission to foreign law (autonomy) has sprung. 
 
 ° The judgment of the Supreme Court of Appeal at Jena in 1832 goes too 
 far in restricting the rule " Locus regit actum." It remarks : — " As a rule sub- 
 jects are answerable only to the law of their native country, i.e., of their domi- 
 cile. The exception ' Locus regit actum,' implies that the obligations undertaken 
 by them in a foreign country are to receive effect in their native country ; for 
 it is only in this case that the foreign territory has any legal interest for the 
 contracting parties. Without such an implication it seems to be pure chance 
 whether these subjects have concluded their contracts on their own or on 
 native soU, and chance can never avail to deprive their native laws of their 
 jurisdiction. But if any act has to be carried out, or may come before the 
 Courts of the foreign country where it is executed, there can then be no ques- 
 tion whether the parties desired to bind themselves by the laws of that place 
 or not, nor can there be any question as to whether they knew these laws or 
 not, since ignorance of the law is an excuse that will not avail even in the 
 case of temporary subjects" (Seufiert, 2, p. 162). On the other hand, see a 
 judgment of the Supreme Court at Berlin of 3rd AprU 1856 (Striethiirst, 30, 
 p. 303). 
 
 ^ Acts of public officers, however, are only valid if the forms prescribed for the 
 place of their execution are respected. This case does not fall under the rule 
 " Locus regit actum." The Government can only give a public authentication 
 to the acts of its officers on condition that all prescribed forms are respected. 
 The neglect of these forms leads to the result that the defective acts are not 
 recognised as of official weight, and they cannot acquire a public authentication 
 from the accidental circumstance that in another country these forms are not 
 necessary. If, for instance, the laws of the place where any deed was executed 
 required the register to be subscribed by the parties on pain of nullity, or the 
 official to add the official seal to his signature, then if either of these requisites 
 were awanting, it would follow that the deed was void, not only in that country, 
 but could not enjoy public recognition anywhere (Cf. Story, § 260, and espe- 
 
Note B.] 143 
 
 Note B on §§ 34, 35, 36. 
 
 [The doctrine of the text is received in Scotland and France 
 and America, but in England is subjected to serious limita- 
 tion. In France the doctrine is laid down in a case of Benton 
 V. Horeau, 26th August, 1880, by the Court of Cassation. 
 A contract had been concluded verbally in England between a 
 Frenchman and an Englishman ; the Englishman came to sue 
 on the contract in France ; it was objected that it was incom- 
 petent to prove the debt arising on the contract otherwise than 
 by writing, because the amount of it exceeded 150 francs. 
 To this it was answered, that by the law of England, where 
 the contract was made, writing was not necessary to consti- 
 tute the obligation, and the rule to be applied was locus 
 regit actum,, this being a question as to the validity of the 
 vinculum obligationis. Parole proof was allowed, on the 
 ground that the form of the contract and the proof of the 
 execution must be governed by the law of the place of the 
 execution. The intention of the parties was to bind them- 
 selves by the lawi of the place where they were at the time, 
 and the question they put to themselves was, " Do we need to 
 bind ourselves in writing or not ? " 
 
 The same principles are applied in Scotland ; a contract 
 executed in conformity with foreign forms is recognised as 
 valid in Scotland and enforced there, although it does not 
 comply with Scots forms. In the application of this rule the 
 following liberal extension is made : "This," says Erskine,Instit. 
 
 oially the Prussian-Lippian Treaty of 18tli March, 1857, Art. 32, " If by 
 the constitution of one either State, the validity of an act depends upon its 
 being undertaken before a particular officer, that is hereby continued"). 
 It is, ho-vrever, quite consistent with this, that the public officers of a State 
 should, along with the forms therein required to give pubUca fides to any 
 act, observe those forms also, in the case of an act which naturally belongs to 
 another State, which give validity to such an act by the laws of that foreign 
 State, in so far as these foreign laws do not recognise the rule " Locus regit 
 adwm." Cf. Draft of a Civil Code for Saxony, § 12, Div. 2. " In the case 
 of acts which are to operate solely in a foreign country, public officers, if 
 desired by the parties, must draw these up according to the forms recognised 
 abroad." Hannov. Eegulations of 28th Dec. 1821, § 2. " If documents are 
 to be drawn up for foreign transactions, in which, according to the forms of 
 foreign law, a sworn attestation before a notary and witnesses is required, 
 this may be done on the spot." (This regulation forbids generally all paths 
 before a notary and witnesses.) 
 
144 [¥ote B. 
 
 iii. 2-39, " holds even in sucli obligations as bind the granter 
 to convey subjects " (i.e. heritage or real property) " within 
 Scotland ; for where one becomes bound by a lawful obUga- 
 tion, he cannot cease to be bound by changing places." All 
 personal obligations or contracts " are deemed as effectual, 
 when they come to receive execution in Scotland, as if they 
 had been perfected in the Scottish form." The rule is, of 
 course, limited to forms, " for," says the same author, " it 
 would be absurd to give the smallest effect to a foreign deed 
 perfected according to the law of the place where it was made 
 out which would not be effectual here, though it had been 
 perfected with all the solemnities required by our law." 
 This statement of the law has received judicial sanction in 
 many cases (e.g., in Purvis' Trustees v. Purvis' Executors, 
 23rd March, 1861, 23 D. 831, per Inglis, L.J.C.) "All 
 instruments (without distuiction, except in the conveyance of 
 land) executed abroad according to the solemnities of the 
 place of execution, must receive effect in Scotland exactly in 
 the same way as if they were executed within Scotland 
 according to the solemnities of the Act, 1681." This rule 
 has been extended, as in France, in the case quoted above, 
 so as to allow a contract concluded in England, where it 
 might be concluded verbally, to be proved in Scotland to 
 have been so constituted, although writing would have been 
 required to constitute it in Scotland (Dale v. Dumbarton 
 Glass Company, 1829, 7 S. 369). The mode of proof, how- 
 ever, must in Scottish Courts be regulated by their own 
 law, i.e., in certain cases by writ or oath, although the ques- 
 tion to be so settled may be, "was the obligation verbally 
 constituted ? " that being a mode of constitution allowed in 
 the particular circumstances by foreign law, and therefore 
 admitted in Scotland. The logical inference from the rule 
 stated, viz., that the form of a contract is governed by the 
 law of the place of execution, is that a contract which does 
 not satisfy the requirements of that law will not be received 
 by the Court of another country, even although it satisfies 
 the forms of the country in which the Court is situated ; this 
 inference has been adopted in Scotland (Tayler, 16 th July, 
 1847, 9 D. 1504). An exception is made in cases where the 
 country of the court is the country where it was intended 
 
Note B.] 145 
 
 that the contract should be carried out ; the opinion of 
 Lord President Inghs, in Valery v. Scott, 4th July, 1876, 3 
 R. 965, that the observance of either the law of the place 
 of execution or of performance will make a deed effectual, 
 was pronounced in a case where the contract was intended 
 to be carried out in Scotland, although executed in France. 
 The general rule is stated by Prof. Bell, in his "Lectures on Con- 
 veyancing," p. 88, chap. iii. : " The privileges allowed to such 
 deeds " (i.e., deeds executed by foreigners according to the law 
 of their domicile) " are extended to writings of the same 
 class, even when the granter is a Scotchman, provided the 
 deeds are actually executed out of Scotland, and according 
 to the laws of the place of execution. But it is essential, as 
 to aU such deeds, that as matter of fact they are validly 
 executed according to the laws of the country where they 
 are entered into." 
 
 Story states the law in similar terms, § 260 (4): "All for- 
 malities, proofs, or authentications of" contracts, "which are 
 required by the lex loci, are indispensable to their validity 
 everywhere else." He expresses, however, a doubt as to 
 whether the law of the place of execution, or of the forum,, 
 will regulate the admissibility of proof of the contract when 
 it comes to be enforced. Probably the distinction on this 
 point taken in Scotland supplies the correct solution. 
 
 It wiU of course be understood that the condition that such 
 contracts or the solemnities required in their execution shall 
 not be inconsistent with our rules of morality or of police, 
 is required by the laws of these countries and by that of 
 England : and in the case of a conveyance of real estate, the 
 lex rei sitae must be observed. 
 
 The rule in England is not quite so liberally apphed ; 
 it is no doubt required there, also, that " a contract m,ust be 
 available by the law of the place where it is entered into, or 
 it is void all the world over " (per Lord Ellenborough, in 
 Clegg V. Levy, 3 Camp. 167) ; and Addison states, p. 176, 
 Bk. i. cap. 2, " The lex loci contractus generally prevails in 
 all that relates to the legal validity of the contract, the 
 vineulum obligationis. ... If the contract is valid by the 
 law of the country where it is made, it is valid everywhere, 
 unless it is contra bonos itnores, or is a contract for the 
 
 L 
 
146 [N'ote B, § 37. 
 
 doing of a thing which is directly prohibited and forbidden ' 
 in, or contrary to, the public policy of the country where the 
 contract is sought to be enforced." But it is also stated by 
 the same writer, p. 179, that a contract must be valid both 
 according to the law of the foreign country and according to 
 the law of England before it can be enforced in England, 
 and Westlake, § 198, sums up the English law I thus : — " A 
 contract, although externally perfect according to the law of 
 the place where it was made, cannot be enforced in England 
 unless evidenced in such manner as English law requires." 
 This doctrine is in direct conflict with the systems of law 
 already referred to, and with the doctrine of the text ; it 
 seems indeed to be contradictory of the maxim Locus regit 
 actv/m, as Westlake points out. If the intention be to reserve 
 the decision on all matters of procedure, " litis ordinatoria " 
 for the lex fori, as is indicated from the cases quoted by 
 Addison, that principle is perfectly sound ; but the recogni- 
 tion of it need not involve the rejection of a contract as 
 available in England, because it is constituted by other means 
 than those admitted there. The distinction taken in Scot- 
 land between the constitution of the obligation and the 
 ascertainment of the fact whether it has been so constituted 
 or not, seems to be the true rule. A prohibitory law allow- 
 ing no scope to the will of parties will, as stated in the text, 
 demand observance and exclude the rule locibs regit actum. 
 
 The application of the rule to particular legal relations — 
 e.g., marriage, divorce, bills, &c., will receive further considera- 
 tion infra.] 
 
 §37. 
 
 Our theory supplies, too, an answer to the question, by what 
 law a contract, concluded by letters between parties who never 
 meet, is to be determined. We might fancy that the only 
 question could be, whether it should be held as concluded at 
 the domicile of the offerer or the acceptor.^ But the conflict 
 
 1 [This is the view expressed by Addison as to English law (Addison on 
 Contracts, p. llS-'Jd) : " When contracts are entered into between parties 
 residing in different countries, through the medium of letters, the place where 
 the final assent has been given by one party to an offer made by another, is 
 the place where the contract is considered to have been made." And it is by that 
 
§§37,38.] 147 
 
 is not determined by the answer to that question, since the 
 laws of the two countries may give different answers. But 
 at the same time, in accordance with what we have akeady 
 said, we may note that the intention of the correspondents 
 to enter into a binding contract remains doubtful, just 
 because of the defective form. The contract, therefore, is 
 only valid if it is in conformity with the laws of the domi- 
 ciles of both parties. But, if the person who receives the 
 letter deals only as a mandatory, and in this character con- 
 cludes a bargain, which, no doubt, binds him by the laws of 
 his domicile, but does not bind the mandant by the law of 
 his domicile, a supplementary obligation may He upon the 
 mandant created by his mandate, if not by the other contract, 
 if it should happen that the mandatory has in bond fide 
 beheved the mandant to be legally bound, and the mandate 
 did not require any special form according to the law pre- 
 vailing at the domicile. of the mandant. 
 
 §38. 
 
 If an act is invalid because the forms prescribed by the 
 law of the place where it was executed have not been 
 observed, it can make no difference that these forms are 
 required in the interest, it may be, of the pubKc revenue, 
 but at aU events not in the interest of the parties. The 
 party who appeals to the invalidity of the act because of a 
 defect in form, has a right by the law of the place of the 
 transaction to hold it nuIL^ Neglect of the stamp laws that 
 prevail at the seat of the contract must be visited with the 
 penalty of nullity, if that is the consequence that would 
 have followed on the spot, and it cannot be objected that 
 the fiscal regulations of foreign states have no meaning for 
 
 law that the contract is to be determined. Looking to the universality of the 
 doctrine here enunciated as to the true place of the execution of the contract, 
 this rule will probably satisfy nearly every case that can arise, and the 
 difficulty suggested in the text will hardly ever be experienced.] 
 
 1 One cannot see why, if the rule is that in such cases the law of the place 
 of the transaction is to determine the form, an act void from the first should 
 be validated by the circumstance that it comes to be discussed in the courts 
 of another State (per Chief Justice of Common Pleas, cited by Barge, iii. 
 p. 767). 
 
148 [§ 38, Note C, § 39. 
 
 us.^ We are concerned with tlie forms of legal acts, and not 
 with the support of foreign stamp laws. Just as well might 
 the provision of a foreign state, requiring as an essential part 
 of the form of a contract that it should be concluded before 
 a court, be ignored, if this form existed for no other reason 
 but to secure to the state a certain amount of dues upon 
 the execution of such contracts. 
 
 Note C. on § 38. 
 
 [The doctrine of the text is approved by Westlake, p. 231, 
 § 199, and Story, § 260 (4). The latter says: "Thus, if 
 by the laws of a country a contract is void unless it is 
 written on stamped paper, it ought to be held void every- 
 where ; for unless it be good there, it can have no obligation 
 in any other country." 
 
 Addison on Contracts, p. 1082, states the law of England 
 to be, that although foreign documents are not excluded 
 from being received as evidence in English courts, because 
 they are unstamped, and therefore could not be received in 
 their own country, yet if they are void by their own law, 
 they cannot be enforced in England. In Scotland the law, 
 until recently, was that the court wUl not take any notice of 
 foreign revenue laws (Bell's Pr. § 328 ; Menzies, p. 88 ; Stewart 
 V. Gelot, 19th July, 1871, 9 M. 1057); but this has been 
 doubted (cf. Lord Deas in Valery v. Scott, 3 E. 965).] 
 
 §39. 
 
 "We have still to discuss the question whether an act, 
 which' is not valid according to the forms of the place where 
 it is executed, but is valid by the forms of the domicile of 
 the party, is rendered nuU by a change taking place in the 
 domicile of that party. 
 
 This question is identical with the question, whether the 
 act is to be judged by the law of the domicile which the 
 person formerly had, or by that of his last domicile, for the 
 form prescribed by the law of the domicile of a person can 
 
 = This objection, for instance, is made by Wheaton, Ph. ii. cap. 2. See 
 the rule stated above in Burge, ii. p. 870 ; Story, § 260, and an interesting 
 judgment of the Supreme Court of Appeal at Berlin, of 19th May, 1857 
 (Striethorst, 26, p. 45 d seq.) 
 
§ 39.] 149 
 
 only have application, if the act is under the control of the 
 lavT of that domicile. 
 
 Accordingly, as we shall hereafter see, obligatory contracts 
 do not become void by an alteration in the domicile of one 
 of the parties. This is, however, certainly the case with tes- 
 taments ; as, for instance, if any person in whose domicile a 
 holograph will is recognised executes one in that form in a 
 foreign country where AviUs must be executed judicially, and 
 afterwards changes his domicile to the place where these 
 holograph wiUs are not recognised.^ 
 
 The question seems doubtful as regards contracts dealing 
 with succession. Such contracts determine the line of suc- 
 cession ; and if that is to be fixed by the law of the last 
 domicile of the testator, it seems to follow that they, too, 
 must be subject to that law, and so may become invalid,^ for 
 some defect in form,^ if they are not executed according to the 
 forms of the place which, by a change in the domicile of one 
 of the parties, is now the place of the contract. But contracts 
 dealing with succession give the contracting parties operative 
 rights at once. A testament first comes into operation at 
 the death of the testator ; but a contract of this kind limits 
 his capacity of disponing. Now, this Hmitation of capacity 
 in favour of the heirs taking under the provisions of the con- 
 tract, which is already in operation, and is, therefore, under 
 the control of the law of the domicile at that date, can only 
 in these circumstances be rendered inoperative by such legal 
 
 ^ So Waeliter, ii. p. 380, with regard to wills. But the meaning which 
 Wachter gives there to the determining consideration is certainly not sharp 
 enough. *' If," says Wachter, " the testator's domicile is the only ground for 
 bringing any particular law into play, then, necessarily, as the domicile is 
 changed, so is the law that is to be applied, because with a change in the 
 ground there must also be change in the consequences." From that it would 
 follow that obligatory contracts could become invalid, in point of form, by a 
 change of domicile on the part of one of the contracting parties. 
 
 " The execution of a legal act, according to the forms of the Ux loci con- 
 tractus, ensures, as we have shown, the greatest safety (linger, p. 210). 
 
 ' The present discussion has nothing to do with anything but defects of 
 form, and the narrower definition of form given above must be kept in 
 view. The failure to institute an heir is, therefore, not regarded as a mere 
 defect in form. The right of the heir-at-law either to be instituted as heir or 
 to be expressly disinherited cannot be held to be a mere essential for the 
 expression of the will of the testator. 
 
150 [§ 39. 
 
 rules of the last domicile as forbid the fulfilment of con- 
 tracts that are aheady completed. It cannot be attacked 
 under cover of any laws that may exist for the purpose of 
 regulating the constitution of obligations — a category in 
 which aU rules as to forms must, of course, be included. 
 The opposite view would aUow the parties to such a contract 
 to escape from it by a change of domicile, and give free play 
 to perfidy and fraud.* 
 
 It is only, therefore, legal acts, which for the present are 
 inoperative, and are capable of change by the will of one 
 party, that can be rendered inoperative altogether by a 
 change in the domicUe of the party ; bilateral contracts can not. 
 It is obvious again that bilateral contracts, which have once 
 been executed in an informal and, therefore, invahd way, can- 
 not be validated by a subsequent change of domicile on the 
 part of one of the parties. In the case of unilateral con- 
 tracts, we might easily imagine a tacit continuation of 
 the expression of will that has once been made.^ The 
 same reasons, however, may be urged against this as prevent 
 the application of new statutes simpHfying the forms of uni- 
 lateral acts to such acts as were invahdly executed in the time 
 of some earlier statutes. Mere ignorance of the law, as 
 Savigny remarks, with reference to the rule tempus regit 
 actvm,^ may give rise to neglect of forms, while there is 
 still an earnest desire to enter tipon the legal act. But it may 
 also be that the forms have been omitted in the most 
 perfect consciousness of the rules of law appHcable to the case, 
 so that the document is only a preparation for the valid act. 
 
 * In the foregoing discussion it is assumed that the law of succession is to 
 be determined by the law of the last domicile of the deceased, as is the case 
 according to the principles of the common law recognised in Germany. If, 
 as in English law, the lex rei sites decides as to real property, then, in so far 
 as they are concerned, contracts as to succession and wills generally can only 
 be validly executed in the form of the lex rei site. See below, § 109. 
 
 ^ This is, for instance, assumed in the draft code for Saxony, in which, in 
 § 10, div. 2, it is noted with respect to those foreigners who take up their abode 
 in Saxony : " Previous declarations of will, which they can alter at pleasure, 
 are valid, in so far as their mere form is concerned, if they are good either 
 according to Saxon law, or the law of the place where the declaration was 
 made." 
 
 « System, viii. § 388 ; Guthrie, pp. 355, 356, 357. 
 
§5 39,40.] 151 
 
 In this way we migM be involved in the consideration Oi 
 circumstances that were accidental and barely possible. 
 
 II. — The Law of Persons. 
 
 A. The Natural Existence of Personality — 
 Presumption of Death. 
 
 §40. 
 
 The question, tinder what law the beginning of a person's 
 physical existence falls, has very seldom been considered by 
 courts of law, because, as a rule, the question is merely one 
 of fact. And yet, here too we may imagine cases admitting 
 of dispute — as, for instance, when one law does not hold a 
 child to be living unless it is also viable ; while another is 
 contented if the child shall have shown a sign of life for a 
 single moment. The object of statutory provisions of this 
 kind — as to the precise point at which a new-bom child can 
 be held to be ahve, since we can have no concern with the 
 acts or contracts of such children — can only be to regulate 
 succession, or, by the criminal law to give a chUd more pro- 
 tection than a foetus. These facts are determined by the law 
 that settles the succession of the child to its predecessor, or, 
 if the case in question be a case of a criminal attempt upon 
 the life of a child, by the criminal law which would have to 
 be brought into action against the same criminal for any other 
 wrong done by him or her in the same place. 
 
 It is a more practical inquiry by what law we are to regu- 
 late the fictitious destruction of a man's personality by a 
 judicial declaration of death which occurs in particular cases, 
 where there is a complete uncertainty as to whether a person 
 who has been lost to sight is stUl in life or not. There can 
 be no occasion to inquife into any acts of such a person, or 
 any crime done against hitn since he disappeared ; and such 
 declarations of death can, therefore, have no other object 
 than to settle the rights of inheritance, and the family rela- 
 tions between the person who has disappeared and his connec- 
 tions : the rights of inheritance in a double sense — first, in 
 so far as claims may be made against the estate of the person, 
 who has disappeared ; secondly, in sp far as he may himself 
 
152 [§40. 
 
 have a claim against another person's estate.^ As far as 
 family, relations are considered, the law which is applied to 
 these for other purposes rules here also. As regards ques- 
 tions of succession, however, cases of the first class are ruled 
 by the law of succession that governs the estate of the 
 missing person ; cases of the second class by the law that 
 regulates the succession of the person against whom a claim 
 is made.2 The following limitation must not, however, be 
 overlooked. The declaration of death does nothing more than 
 raise to legal certainty a likelihood which, as mattet of fact, 
 already, exists. The object of all the preliminary regulations 
 {e.g., the citation of the missing person by official proclama- 
 tions) is to give substantial ground for this suspicion ; but 
 the operation of these forms must necessarily be confined to 
 a particular part of the globe. They cannot give any satis- 
 factory assurance of the death of the missing man in a 
 remote country, unless some special provision shall be made 
 to set them in operation there — as, for example, by inserting 
 the citation in the official proclamations of that country. 
 "Without an assurance of this kind, a judge would fail in his 
 duty who, in place of appointing a curator absentis, gave 
 decree for the transference of the estate of the missing man 
 to the heirs. In such a case, the probability of the death 
 must be made out in some way to the satisfaction of the 
 judge ; and this will be best done by a public proclamation 
 in the same terms as are used in that foreign country in 
 similar cases. Such a proclamation is not to be held as a 
 proclamation in view of a process of declarator of death ; and 
 therefore its operation is not to be tested by the laws of that 
 country, but by those of the country in which the succession 
 
 ^ According to the common law of Germany, the declaration of death 
 applies to the first case only. See Gerber, § 34 ad fin.; Beseler, i. § 58, 
 note 17 ; and the authors there quoted. 
 
 2 Accordingly, if, as is the case by the common law of Germany and of 
 France, the law of the country that is to rule makes the right of succession an 
 universal succession, the law which is recognised at the last known domicile 
 of the person prevails. The definition of domicile understood here, and 
 everywhere in this workj is that given on pp. 90, 91 ; so that the mere domi- 
 cile of fact, in the Roman sense, does not rule in relation to the legal 
 systems of different independent States. 
 
§ 40.] 153 
 
 to the estate takes place, and the relations of the family- 
 are settled.^ 
 
 It is easy to determine the competency of the courts. 
 The law which settles the material results of the declaration 
 of death, decides also what court shall pronounce it.* 
 
 ^ If, on the other hand, the missing man was possessed of real property in 
 the other state, and the law of that state does not recognise the right of 
 the heir as an universal successor, then there must be a special declaration of 
 death, with its special results. 
 
 * We shall discuss the various presumptions that are recognised as to the 
 period of death of different persons lower down in treating of Proof. Burge, 
 iv. p. 152, regards the regulations as to disappearance, and the presumptions 
 thereanent, as mere rules of proof, which the judge must in each case deter- 
 mine by his own law. But, as regards the declaration of death, this view 
 leaves it undetermined, whether the judge can only then hold death to be 
 proved if it has been so proved according to the law of his own country, or 
 whether, and under what conditions, he may allow himself to be convinced by 
 a declaration of death made by foreign courts and according to foreign laws ; 
 and this declaration of death is something more than a mere rule of proof, if 
 its object is, as it is according to the common law of Rome, to determine the 
 right of succession and the family relations. 
 
 Heffter (§ 37, p. 70, note 3) is of opinion that no judicial declaration of 
 death can take the place of actual proof of death for other countries who have 
 no rule of the kind, or proceed in some other way, since what is merely a legal 
 fiction cannot be binding upon another State which knows no such fiction. But 
 we shaE show presently (cf. e.g., §§ 102-123) that many legal fictions are, under 
 certain circumstances, recognised by foreign States ; and Hefifter admits, on 
 the one side, that he has no foundation for his proposition, while he allows 
 also that legal relations which have already been entered into in a foreign 
 country upon the basis of this fiction, cannot be denied as existing. But by 
 this admission Heflfter's whole position is rendered problematical, for what 
 system of legislation is to decide whether a legal relation has already been 
 entered upon ? Heffter, for example, concedes (p. 71, note 1) that a succes- 
 sion already entered upon must be recognised in a foreign country, although 
 there has been a mere declaration of death. But, quid juris, according to 
 Heffter's theory (of., too, Foelix, ii. p. 116, and the legal decisions reported there), 
 if one who has acquired such a succession demands possession of the estate 
 upon the ground of this declaration from a person living in another country, 
 or desires to bring action against debtors to the estate living in a foreign 
 country 2 Gand (No. 407) comes to be of opinion that a confirmation to the 
 goods of a missing person cannot be obtained in Prance upon the ground of 
 a declaration of death pronounced in some other country, because foreign 
 judgments are not capable of being executed in France. But the subject 
 under discussion is not a judgment in a real process, but a regulation as to 
 property and family conducted under the control of a judge. One often finds 
 in French authors this confusion between real judgments in litigated actions 
 and acts of voluntary jurisdiction which have some similarity. 
 
154 [§ 41. 
 
 B. COEPOEATIONS (LeGAL PeRSONS). 
 § 41. 
 
 The natural persons belonging to a State are recognised as 
 persons in every other State. This undoubted rule is a con- 
 sequence of the equahty of natives and foreigners admitted by 
 modem international law. But by custom it is just as fully 
 recognised that legal persons belonging to another State must 
 also be so regarded. As regards burghs, parishes, and churches 
 this is obvious, but it is just as true of other legal persons. 
 For although the authority of the foreign State by which 
 legal personalities are either directly created, or their creation 
 by private persons tolerated, has no weight in one State for 
 itself, yet modern international intercourse requires the same 
 recognition to be extended even to the legal personalities 
 which may be capriciously created. ^ For instance, without 
 such recognition companieb constituted by shares could have 
 no international dealings. It is no doubt conceivable that 
 we might escape from the difficulty by requiring aU such in- 
 stitutions to obtain special State recognition from the proper 
 authority in every State in which they might happen to deal 
 or sue. But it might often be that the different States 
 would impose contradictory conditions. The legal personality 
 would, besides, have to be recognised by the Governments of 
 almost aU civilized States, so that the extended enterprises of 
 trade might go on smoothly. That would lead to inexpres- 
 sible difficulties and uncertainties. The only exception we 
 recognise is when the foreign association pursues some object 
 which is forbidden by our laws.^ 
 
 Conversely, an association which has no validity in its own 
 country, cannot claim the rights of legal personality in 
 another State. Legal personality, so far as private law is 
 concerned, has no other end than to make it permanently 
 
 '^ Judgment of the Supreme Court at Berlin, 8th Oct. 1849 (Decns., 20, p. 
 326). The recognition of legal persons requires, of course, that the laws that 
 prevail at the seat of the same as to the constitution and minor arrangements 
 of the company shall rule. (To this effect the grounds of the judgment cited 
 above.) 
 
 » Giinther, p. 279 ; Foelix, p. 65 ; Cf., too, Wachter, ii. p. 181-2. 
 
§41.J 155 
 
 possible to divide, according to certain conditions previously- 
 laid down, certain estate among actual individual persons, or 
 to ensure the enjoyment and advantages of a particular thing 
 or undertaking to an indefinite number of individuals. 
 
 As regards the legal persons of the first kind, the division 
 of the estate in the eye of the law takes place at the seat of 
 the company ; but if the law of that place does not recognise 
 operations such as the company proposes to carry on, then the 
 object of the association cannot in the eye of the law be attained 
 at all. But with respect to the second class, it is just as 
 plain that if the State iu which it is proposed to establish the 
 undertaking wUl not permit it to be established, the object of 
 the •association as a matter of fact can never be attained. A 
 foreign State which should recognise as a legal person what 
 was not so recognised in its own State, would be treating as 
 valid legal facts directed to ends that are either legally or 
 actually impossible, — a result at variance with general logical 
 principles.^ 
 
 Eights which are generally conceded in our State to legal 
 persons of the kind referred to, cannot be refused to legal 
 persons of foreign States which have been recognised by us, 
 since this, is what the general priuciple of legal equality 
 between foreigners and natives requires.* But, on the other 
 hand, foreign institutions and associations cannot make avail- 
 able in our State privileges which are only conceded to them 
 in their own,^ and rights which native legal persons must 
 specially acquire — e.g., the privilege of holding real property — 
 cannot be conceded^ to a foreign person except by the special 
 
 ^ Cf. Mohl, Staatsrecht, Vdlkerrecht, und Politik, i. p. 621 : "It is easy to 
 prove that the position of a company in its international relations is depen- 
 dent closely upon its native legislation and its actual treatment there. An 
 association, which has no legal existence in its own country, does not exist for 
 foreign States ; circumstances abroad cannot put any other face on it than it 
 really possesses at home." 
 
 * So Wachter, ii. 182 : The practice of the Supreme Court of Wiirtemherg 
 allows to charitable institutions of foreign countries the privilege of the forty 
 years' prescription. 
 
 5 Unger, p. 165. 
 
 8 Savigny, § 365, Guthrie, p. 167, describes such restrictions upon legal 
 persons as restrictions upon capacity of contract. They are, however, more 
 properly restrictions upon legal capacity (on this important distinction, see 
 
156 [§ 41, i\^o«e D. 
 
 indulgence of our State. The opposite view would place our 
 own subjects at a disadvantage with foreigners. It is also an 
 obvious exception to the rule that foreign institutions and 
 associations are to be treated by the law just as our own, if 
 the rights in question are by special provision or by imphca- 
 tion from native laws applicable exclusively to native juristic 
 persons. The latter is the case, for example, with reference 
 to the special privileges of the pubUc purse.'' One cannot 
 imagine that our subjects should be placed at a disadvantage 
 in questions with a foreign treasury. On the other hand, 
 charitable institutions, unless they have some exclusive object 
 confined to their own State {e.g., an hospital admitting only 
 subjects of its own nationality), can lay claim to aU rights 
 which we concede to charitable institutions in our own 
 country.^ 
 
 Note D. on § 41. 
 
 [" It is an estabUshed rule of private international law that 
 a corporation duly created according to the laws of one State 
 may sue and be sued in its corporate name in the courts of 
 other States. . . . But as regards procedure and parties to 
 actions, the law of the country in which the action is brought 
 prevails." Lindley, on Partnership, App., p. 1483 ; c£ also 
 Westlake, § 286. The powers of the corporation, the limits 
 of its legal capacity — e.g., its capacity to hold land — must of 
 course be determined by the law of the country where it 
 proposes to exercise its powers or capacity ; the law of its 
 domicile will determine whether it has been validly incor- 
 porated, but it wUl not be allowed to trade at the expense 
 and to the disadvantage of foreign corporations, because, in 
 the country of its own domicile, legal persons are free from the 
 
 § 42 infra). But since he assumes the lex domicilii as universally regula- 
 tive of the capacity to contract, he cannot escape from the result, vrhich 
 undoubtedly is at variance with practical tact, that religious or other foreign 
 foundations should not be subject to rules that are recognised in our country 
 against the accumulation of real property in the so-called dead hand, except 
 by the inapposite proposition, that such prohibitions rest on considerations 
 of political economy. 
 
 ' Wachter, ii. p. 181. linger, who allows foreign churches the privileges 
 of native churches. 
 
 ' Giinther, ut supra. 
 
NoteJ).^ 157 
 
 restraints wMcli the foreign law imposes upon them. The ex- 
 tent of the mutual recognition is expressed in the conventions 
 concluded between England and France, 15th May, 1862 ; 
 England and Belgium, 8th December, 1862 ; England and 
 Italy, 26th November, 1867 ; and England and Germany, 
 27th March, 1874. The operative clauses in these con- 
 ventions, which are valid in Ireland and Scotland as well as 
 in England, are in nearly the same terms. The most recent 
 runs thus : " Joint-stock companies and other associations, 
 comm.ercial, industrial, and financial, constituted and autho- 
 rised in conformity with the laws in force in either of the 
 two countries, may freely exercise in the dominions of the 
 other all their rights, including that of appearing before 
 tribunals, whether for the purpose of bringing an action or 
 for defending themselves, in conformity, however, with the 
 laws and customs in force in the said countries. . . . Such 
 companies or associations authorised in either of the two 
 countries, shall only be admitted to the exercise of their 
 business or trade in the dominions of the other country, if 
 found to be in compliance with the conditions prescribed by 
 the laws of that coimtry." 
 
 It has been thought (Westlake, § 287) that a company 
 incorporated in one country cannot carry on business in 
 another country, so as to acquire a right to sue on contracts 
 entered into there ; it is said that such a company is trading 
 beyond the limits under which it is constituted, and that a 
 company belonging to a country where the conditions of 
 incorporation are less rigid may have advantages over others 
 constituted in countries where the law requires certain for- 
 malities and conditions to be observed, so as to ensure fair 
 trading, or, it may be, for fiscal purposes. The Canadian 
 courts have countenanced this view ; but the English courts, 
 although they have never been called upon to decide the 
 question, have assumed the contrary. The high authority 
 of Mr. Justice Lindley, p. 1484, is to this effect : " It is con- 
 ceived that a foreign corporation can sue in this country on 
 aU contracts entered into with it in this country, provided 
 such contracts are warranted by the constitution of the 
 corporation, and are not illegal by English law." 
 
 If the law were otherwise, every company desiring to trade 
 
158 [IToteJ). 
 
 in a foreign country would require to be incorporated anew, 
 and it might be on a totally new footing. The author (swpra, 
 p. 1 54) points out how inconvenient and cumbrous it would be 
 to require this of a foreign trading company : the recognition 
 of the incorporation of a company which has been validly 
 formed under the provisions of a foreign law is demanded by 
 the first principles of international law, which assume that 
 in all civUised countries safeguards of the same kind, although 
 differing infinitely in detail, wiU be adopted to ensure honest 
 dealing and the administration of justice; and finally, the 
 language of the conventions quoted above seems at once to 
 coincide with theories expressed in the text, and to show 
 what the common experience of nations has found necessary 
 and advantageous. If the doubts of the Canadian courts 
 were well founded, the recognition of foreign corporations 
 and their rights would be so limited as to be illusory. 
 
 Following out the same principles, the German courts have 
 recognised and allowed to a foreign company, validly formed 
 according to foreign law, a right of action against German 
 subjects, although the principles of its constitution are 
 forbidden in Germany, and companies so constituted are 
 declared null (Holthausen & Cie v. Comptoir d'escompte de 
 Paris, App. St. cf. Coin. 28th April, 1777). The grounds of 
 this decision are precisely the same as those on which Mr. 
 Justice Lindley defends his doctrine, as stated above. 
 
 It may of course happen, that a company which has its 
 principal oflSce abroad, may have estabhshed it there with 
 the express purpose of engaging in some trade not permitted 
 in the country to which it truly belongs, and of escaping 
 some restrictions upon the constitution of companies which 
 are imposed by the law of the country to which it truly 
 belongs — i.e., where its directors or managers reside, where its 
 trade truly lies, and where its shares are held ; such an 
 iUusory establishment wOl certainly not be recognised so as 
 to oust the penal jurisdiction of the country to which the 
 directors belong, or to dispense with the formahties required 
 by its law (Compagnie de Chemin de Fer du Nord et de Cata- 
 logue, C. de Paris, 2nd July, 1877). But a mere agency or a 
 subsidiary establishment in France, coupled with the fact 
 that the shares are to a large extent held by Frenchmen, wUl 
 
MteD.] 159 
 
 not make a company amenable to French law, so that any 
 neglect in its constitution of the requirements of French law, 
 which in the case of a French company would involve its 
 directors in criminal responsibility, can be charged against 
 them in a French court, if the meetings of shareholders have 
 always been held abroad, the capital largely employed abroad, 
 and the chief office situated abroad, the company having 
 been originated and incorporated abroad (Chandora v. Banque 
 Europdenne, 10th February, 1881, Trib. comm. de la Seine). 
 Nor wih the establishment of an agency in France give a 
 company the same status as an individual acquires by resid- 
 ence, accompanied by Government licence to reside — viz., a 
 title to bring actions against a foreigner in a French court 
 (Eubattino v. Kundz & Werder, 25th Feb., 1876, Trib. comm. 
 de Marseilles). This latter decision is not in conflict with 
 what has been above taken to be the law of England ; a com- 
 pany is treated like an individual, and its right to sue is 
 regulated according to its true nationality, — domicile does 
 not, as with us, give a title to pursue an action in France 
 against a foreigner upon a contract ; it is a principle of French 
 law that the right to sue being a " droit civil," does not 
 belong to foreigners ; hence a mere trading domicile does not 
 give a right to sue in France, where the defender . is also a 
 foreigner, but a foreign company, just like a foreign individual, 
 may sue a French debtor in France, while the constitution of 
 a foreign company wiU be recognised just as the majority of 
 an individual, and no French shareholder will appeal success- 
 fully to the courts of his own country to protect him against 
 resolutions passed by the shareholders of a foreign company, to 
 which he belongs, in conformity with the requirements of the 
 law of the country to which the company belongs (Buisson 
 V. Ch. de Fer Seville-Xeres, Cadiz, Trib. de comm. de la Seine, 
 25th June, 1875); just as no French creditor can appeal to 
 the courts of his own country to give him redress against a 
 resolution passed in the course of the liquidation of a foreign 
 company abroad by the statutory majority of creditors (Dubois 
 de Lachet v. Cie de Chemia de Fer du Nord de I'Espagne, C. de 
 Cass., Paris, 18th/ January, 1876). But again, just as an indi- 
 vidual, residing or trading in France, may be sued there by a 
 French creditor, although he is not by birth or naturalisation 
 
160 [iVbfe D, §42. 
 
 a French subject, because it is, according to tbe French law, 
 the first object of the legislator to protect his own citizens, 
 so a foreign company which has an agent in France may 
 be sued there upon contracts made in France by their agent 
 (Duchd et Fils v. Kaymond et Cie., C. de Cass., Paris, 18th 
 August, 1875). 
 
 The Italian courts have drawn a distinction, which, to a 
 certain extent, accords with the distinctions noted above as 
 existing in France, between the relations subsisting between 
 the company and its shareholders on the one hand, and the 
 relation between the company and third parties on the other. 
 The shareholders are, by a quasi contract, bound to submit 
 their relations with the company to the law in force at its 
 statutory seat ; debtors or creditors are entitled to rely upon 
 the law of their own country, if that be the real seat of that 
 branch of the company's trade with which they have had to 
 do (Florence Land Company v. Guarducci, Appeal Court of 
 Lucca, 9th April, 1880). 
 
 In England and Scotland the possession of an agency by 
 a foreign company will give jurisdiction to the English or 
 Scots courts in matters arising out of contracts made in the 
 course of the business carried on by these agencies or con- 
 nected with them (Lindley, p. 1485 ; Mackay, Practice of the 
 Court of Session, vol. i. p. 182).] 
 
 C. Legal Capacity and Capacity to Act {Status). 
 
 1. GENERAL PRINCIPLES. 
 
 §42. 
 
 The law of Status constitutes one of the most important 
 subjects of private international law. AU authors who are 
 concerned with our subject at all submit it to a thorough dis- 
 cussion, unless they turn their whole attention to criminal law. 
 But yet their opinions are as divergent in their results as in 
 their foundations. Before discussing details we may make 
 the following general remarks. 
 
 In this place authors are accustomed to treat of the 
 foUowing legal institutions collected together under some 
 
§ 42.] 161 
 
 such title as that which we have prefixed, ^ — viz., nobihty, 
 slavery, civil death, frequently, too, the capacity to inherit, 
 to acquire real property, the loss of reputation (infamy), 
 restrictions on civU capacity by admission into any priestly 
 order, the incapacity of legal and other persons for certain 
 modes of acquisition ; and also miaority and majority, the 
 incapacity of women for some or for all the acts of civil 
 life, the incapacity of certain other persons for special 
 solemnities attaching to legal acts, the operation of the 
 withdrawal of the capacity to dispone by a declaration of 
 prodigality. ^ 
 
 There is, however, between the first and the last named 
 
 1 Savigny uses the expression, " Condition of the person ; " Story makes 
 use of the expression, " Capacity of persons," which corresponds with the 
 title we have chosen, and Foelix comprises the whole subject under the title 
 " Effet du Statut personnel," which includes the operation of all the titles 
 that belong to this subject. In the older writers, we find either this latter 
 heading worded as " StoctutwmPersonale^' or the expression "Status." 
 
 ^ We are not concerned here with oases of a defect in disponing power 
 because of the concurrent right of a third person ; the case, namely, where a 
 married woman cannot alienate without her husband's consent, by reason of 
 community of goods, or a common debtor dispose of property in bankruptcy. 
 
 These cases have also been confused with others which have a superficial 
 resemblance to them, e.g., the guardianship which a husband has over his 
 wife, where women have no power to bind themselves effectually in certain 
 matters without special guardianship. One might have some doubt, in 
 particular, as to the case of the incapacity to make a testament imposed by 
 Roman law upon a films familias, since by pure Roman law at least, with 
 the singular exceptions of the bona castrensia and quasi castrensia, he could 
 not test even with his father's assent. But this matter is thus explained : a 
 .son cannot test without his father's assent, because of his father's right, but 
 neither can he with his father's assent ; for then the disposition would not be 
 his own, but his father's, and this is inadmissable, because a testament derives 
 its validity from the individual will ; the authorities of the Roman law do not 
 therefore, in any way deny the filius familias legal capacity in regard to 
 testaments, the proper testamenti /actio. L. 16, pr. D. 28, 1 ; L. 3, § 1 
 eodem. 
 
 The question, however, by what law the testamentary capacity is to be 
 determined, does not, properly speaking, belong to this division of the subject; 
 it consists in the power to substitute a self-chosen order of succession for that 
 prescribed by law ; and it must depend upon the law which determines 
 generally the course of succession in the particular case, under what condition 
 this power is to be recognised. On the withdrawal of the power of disponing 
 in bankruptcy, see infra, § 128. 
 
 M 
 
162 [§ 42. 
 
 legal institutions a thorougli distinction. In a broader sense, 
 no doubt, one can say of minors, for example, that they do 
 not enjoy full legal capacity, inasmuch as they have not the 
 right to bind themselves independently by legal transactions, 
 or if they have it, they have it in a very limited sphere. 
 But if we are to consider their rights in a closer sense, the 
 sense given to them by private law, by which we mean the 
 legal domiaion over a person or a thing, then we cannot say 
 that these persons labour under any incapacity ; they may 
 have and they may acquire such rights, like other persons, 
 but they cannot by their acts bind themselves to their own 
 prejudice, nor can they, to that effect, renounce rights. But 
 in the case of the first named legal institutions, their object, 
 in so far as they comprise privUegia favorahilia for the 
 persons concerned, is to give these persons the exclusive 
 enjoyment of certain advantages over other classes ; and in 
 so far as they imply privilegia od/iosa, they deprive certain 
 persons of the possibility of acquiring certain special rights, 
 and thus legal capacity, in the narrower sense which we have 
 put upon that term, is either elevated or degraded. The legal 
 rules connected with the first class exist in order to give entire 
 classes of persons a position in the state, and, accordingly, a 
 position with reference to the other subjects of the state, of 
 advantage or disadvantage, secured by law ; the rules of the 
 second kind exist in order to ensure a special protection in 
 the relations of private law for particular individuals.^ 
 
 Accordingly, one can easily conceive that foreign rules of 
 the first class will only be recognised in a very limited sense 
 in our country, while those of the second will meet with a 
 far more extensive recognition, since the former propose to 
 regulate the relations of the persons concerned with their 
 fellow coimtrymen ; and the application of such foreign rules 
 of law runs counter to the great principle of equality between 
 natives and foreigners in the eye of the law, if it should happen 
 
 3 Giinther, p. 726-29, distinguishes between natural and positive legal 
 incapacity : the first should be recognised in foreign countries, the last not. 
 But what are natural incapacities 1 Giinther gives no satisfactory answer to 
 this, and his view that the non-capacity of minors, for instance, is natural, 
 while that of a prodigus takes its origin in a positive rule of law, is wrong. 
 Had not, for instance, according to Roman law, minors capacity to contract ? 
 
§§42,43.] 163 
 
 that the proposed distinction of capacity is a thing not re- 
 cognised in our country as appHcable to our countrymen. 
 
 § 43. 
 
 The older authors proceeded (cf. supra, § 4) on the 
 assumption that the legislator can only provide for the per- 
 sons of his own subjects ; while, as a rule, foreigners are to be 
 exempted from our laws. If then, as in all questions re- 
 lating to this subject, there is a doubt about the habilitas or 
 inhabilitas of the person, the lex domicilii of the person in 
 question is to rule.^ The only question is, in what cases are 
 we to assume that there is a habilitas or inhabilitas of the 
 person ? It is obvious that this theory is untenable according 
 to the modem conceptions of sovereignty ; and yet, as we 
 shall hereafter see, it has substantially contributed to form a 
 customary law for Europe. 
 
 A later theory starts from the conception of the peculiar 
 and individual character of the person. If the personality of 
 a foreigner is to be recognised, it is said, then the legislature 
 must also recognise the attributes of it ; for the attributes are 
 indissolubly bound up with the person. As, then, the person 
 of the foreigner is closely subjected to the law of his domicUe, 
 so the universal appKcabUity of the leges do'micilii to all the 
 attributes of the person results as a consequence. " Statuta in 
 personam directa quaeque certam iis qualitatem affi^gunt, 
 transeunt cum personis extra territorium statuentium, ut 
 perscma ubique sit uniform,is ejusque unus status." ^ 
 
 Others express it thus : " The status ^ of a person must be 
 the same everywhere." The difficulty for the upholders of 
 this theory is to define what laws give a person his attributes, 
 his status. Some stand by the general proposition that, if the 
 law makes a person capable or incapable of any relation, this 
 
 1 Bald. Ubald in L. 1, C. de S. T., No. 58, 78, 92 ; Alb. Brun., art. 8, § 127 ; 
 Alderan Masoardus, concl. 6, No. 14, et seq. 
 
 2 Stockman's Decis., 125, No. 8, of., too, Christianseus, Vol. II., decis. 3, 
 No. 3 — " ob, ut ita loquas, affidentiam personce." Walter, D. Privatreoht, 
 §43. 
 
 3 D'Aguesseau's Works, iv. p. 638 ; Boullenois, i. p. 26, 153 - L'komme 
 dtant le mime pwriout" Merlin Kdp. Testament, sect 1, § 5, art. 1. 
 
164 [§ 43. 
 
 is plainly a statute wliicli will be everywliere recognised in 
 foreign countries as a personal statute,* be this declaration of 
 capacity or incapacity to enter upon legal transactions and to 
 acquire rights a general one, or merely extending to some 
 special transactions and rights.^ Others again only allow the 
 lex domicilii to decide, if it determines the whole status of 
 the person, but do not allow it to do so if the person is de- 
 clared capable or incapable with reference to some particular 
 acts only. As a matter of fact, rules of law of all kinds may 
 be so expressed that a person is thereby declared capable or 
 incapable of some particular act (e.g., the rubric, — " The half 
 of every succession, unless the deceased shall have the power 
 of testing upon it, falls to the heir-at-law," is equivalent to 
 " every man has the capacity of testing upon the half of his 
 estate") ; and so this rule seems suspicious if stated without 
 restriction. The point most at issue is as to what is to be the 
 decision in cases whfere we are concerned with the capacity or 
 incapacity for particular acts and not with the entire status ; 
 and it is often excessively difficult to decipher the appropriate 
 meaning from the obscure expressions of the author. 
 According to Argentseus (No. 16-18), a statute of the former 
 kind is always a real statute, which is dependent upon the 
 lex rei sitae. The strange distinction of Burgundus (i, § 3, 
 ii. § 4), who holds that the lex domicilii should rule so far 
 as the question is one of personal obhgation, but the lex rei 
 sitae on the contrary, so far as the question is one as to the 
 transference of a real right, has been already (§ 7) mentioned.® 
 It would be difficult to reconcile this rule with the principles 
 of any law so as to hold a transference good, where the 
 cedent had not the power to undertake the personal obli- 
 
 * Danz., D. Privatrecht, i., § 53 ; Gliick, part i. p. 288. 
 
 6 Eodenburg, 1, 3, §§ 4-6, ii. 1, § 1 ; Bouhier, chap. 24, Fo. 1-9 ; 
 Duplessis. Consult. CEuTres, i. ii. p. 155 ; Mevius in Jus. Lub. proleg., qu. 4, 
 §25, §§4-6. 
 
 * He is followed, for instance, by Stockmans (decis. p. 125, No. 10-11) and 
 Christianaeus (voi. ii., decis. 56, No. 7) ; so, too, Story, § 431. The whole 
 theory is explained by the desire not to fall into conflict with the rule recog- 
 nised as necessary, by which the lex rei sitoe determines the succession 
 (according to many other French writers and according to English law). Most 
 of the illustrations cited by the supporters of this theory have reference to 
 the capacity to execute a testament. 
 
§43.] 165 
 
 gation involved in the transference. P. Voet'^ denies altogether 
 the operation of any statutuTn personate in reference to foreign 
 real property.^ Others make a distinction, in the case of 
 special statutes which do not determine the entire status, 
 between those which cqncem persons and those which concern 
 things : in the former case they allow the lex domicilii, in the 
 latter the lex rei sitce to rule.^ Here, too, as in the case of the 
 theory of statuta personalia, realia and mixta, it is impossible 
 to determine when a statute refers to a person, and when it 
 refers to a thing. But from the illustrations which these older 
 writers employ, one sees plainly that their theory of these 
 special capacities and incapacities is merely an attempt to 
 carry out universally rules which have been found to fit the 
 expressions of some particular system of law in the subject of 
 succession and the property of married persons. In this con- 
 nection they had generally before them the rules of the older 
 Germanic law, by which succession and the rights of married 
 persons were special modes of acquiring individual assets of 
 
 ^ Cap. 2, § 4, No. 6, cf., too, No. 9. 
 
 * It may be noted that Burgundus, like almost all the older writers, main- 
 tains the rule that moveables follow the person. 
 
 ^ BouUenois i. p. 48 : "Les statuts personnels particuUers sont ou purs per- 
 sonnels ou personnels riels selon I'objet quHls pev/vent avoir. Mais il y a cette 
 diffdrence entre le statut particulier pur personnel et la Statut particulier per- 
 sonnel riel en ce que le premier se parte par tout. Le second n'affecte lapersonne 
 que pour lefonds dont est question . . . doit itre par consequent, horni aux 
 biens situis dans I'etendre du domicile, parce que I'dtat geniral des personnes se 
 parte partaut I., p. 175 : '' J'examinerad d'abard, quel est I'dtat et la condition 
 de lapersonne dans le lieu de son domicile. Sije la trouve incapable par etat 
 /ere concluerai qu'elle n'enpeut aucuns (actes & I'dtranger.) Du domicile de la 
 personne je passerai a la loi de la situation, et fexaminerai, si ces actes permis 
 a celui, qui est capable pwr dtat par la loi de son dormcile, lui sont ddfendus h 
 raison d'un Etat contraire qui await lieu, ou les biens sont situds, ou sHls 
 sont inddpendam/ment de Vetat. Au premier cas le statut personnel du domicile 
 se trouva/nt croisdpar le statut personnel du Ueu de la situation, celui du domicile 
 I'emportera sur celui de la situation. Au second cas le statut personnel du 
 domicile cddera au statut rdel de la situation. Merlin Kdp. Stat. Autorisation 
 Maritale, § 5, cf. Cochin, CEuvres, i. p. 545. The theory set forth in Cooceji's 
 dissertation, and afterwards with some change by Hert, resembles that of Boul- 
 lenois (c. occ., tit. v., § 3-6, tit. vii., § 3, 4, 10 ; Hert, iv., § 4-10), by which the 
 incapacity of a person in general depends upon the lex domicilii j but the 
 capacity to undertake particular transactions, or to dispone upon particular 
 things, depends upon the lex loci actus, or the lex rei sitce, as the case may be. 
 
166 [§ 43. 
 
 property, and in whicli, by well-established usage, the lex 
 rei sitcB alone was applicable. These rules spoke of the 
 capacity or incapacity of persons, with reference only to 
 the testamentary instructions of a testator, or the power of 
 spouses to give each other property, and these expressions 
 had in one way or another to be brought into harmony with 
 the general theory, which made the lex domicilii the rule 
 for determining the capacity or incapacity of persons. 
 
 The same controversies may be found among the authors 
 who refer the validity of the lex domicilii to the mere comitas 
 of the foreign legislator, and to a customary law." 
 
 Wachter sets up a special theory as to the import of this 
 law of custom" (ii. p. 172). The attributes of foreigners, in 
 so far as they are recognised by the law of our land, must be 
 determined by their own law, unless there is some provision 
 with us with reference to attributes of the kind, by which it 
 is plainly intended to lay down a rule for every one uncon- 
 ditionally, no matter whence he comes. On the other hand, 
 the Court must determine the legal operation of these attri- 
 butes according to the laws of its own State, unless the 
 question is merely one as to the capacity of a foreigner in a 
 foreign land to enter upon contracts, and to oblige himself, 
 which must be determined by the laws of his own State 
 only.i^ A foreigner then, who, by the law of his home, is still 
 a minor, must be treated by us also a minor, but our Courts 
 will only allow him the same rights as our laws allow to our 
 minors. If he claims a restitutio in integrv/m from our 
 Courts on account of his personal privilege as a minor, the 
 
 " Huber de confl. Lib. i. tit. 3, § 12, no doubt, pronounces in favour of 
 the lex domicilii universally, witb the exception of the capacity to test, an 
 exception he gives no justification for, and determiaes by the lex rei sitcej 
 Pardessus v. No. 1483, and Mass6 ii. p. 91, takes the other side, because 
 such special restrictions are entirely capricious. 
 
 11 Beseler follows him, i. p. 151. 
 
 12 This theory is connected with a judgment of the 1st Civil Senat of the 
 Supreme Court of Appeal at Lille of 21st Sept. 1846 (rep. in Seuflfert 13, p. 
 102-3), " The rule that the judge shall always decide according to the law of 
 his country, must always hold good. The exception which has been estabKshed 
 by special custom, by which the existence of minority in a foreigner must 
 always be determined by the law of his dwelling-place, cannot be extended 
 so as to determine the legal consequences attaching to such minority." 
 
§43.] 1G7 
 
 judge can only give him that in so far as our laws permit it. 
 A foreigner who is a nobleman by the laws of his own 
 country is also to be held a nobleman by ours, but our judges 
 cannot give him any rights on account of his nobility, 
 except what our laws give our noblemen. 
 
 Savignyi^ establishes the universal validity of the leoc 
 domicilii, upon the assumption that it is impossible to apply 
 any other law than that local law to which the person belongs 
 by residence to the various personal conditions and quahties 
 by which his status is to be determined. He rejects the dis- 
 tinction taken by Wachter between these attributes themselves 
 and their operation, as also the distinction between a general and 
 a special capacity for contract, and the only exception he ad- 
 mits is in the case of institutions of an anomalous character, 
 which lie outside the limits of the community of law that 
 obtains among independent States, e.g., the capacity for poly- 
 gamy, or the incapacity of certain religious persons to acquire 
 property. It is only in such exceptional cases that the law 
 recognised at the seat of the Court is to rule.^* 
 
 A fourth theory is founded on the consideration that the 
 tie which exists between the State and individual subjects 
 thereof is not undone by a temporary residence in a foreign 
 country, and therefore the subjects of a State, even in a 
 foreign country, remain subject to their native laws (Hert, iv. 
 c. 8 ; Renaud D. Privatr., i. § 43, p. 103). This considera- 
 tion, however, falls to be rejected, in respect that although 
 the State may rule its own subjects according to its own laws, 
 in case its courts may have to decide the question, the foreign 
 State is in no sense bound to assent to this (Wachter, ii. p. 
 169 ; Story, § 73). An argument, specially advanced by 
 Renaud, upon the ground that different States mutually 
 recognise each other, contributes nothing to the determina- 
 tion of any question of private law : the State can require 
 no more than that, as regards political rights and duties, her 
 subject shall not be compelled to duties, and shall not share 
 in rights, so long as he remains her subject, which are incon- 
 sistent with that character. 
 
 Others allow the lex domicilii to rule, on the ground that 
 
 13 § 362 ; Guthrie, p. 148; Gerber, too, § 32. Unger, i. p. 163. 
 " § 365 ; Guthrie, p. 166. Sects. 349 and 365. 
 
168 [§ 43. 
 
 personal attributes constitute the vested rights of all persons 
 {e.g., Maurenbrecher, i. § 144). We have, however^ already 
 said all that is necessary on the theory of vested rights 
 (p. 48): against the apphcation of it to the law of status 
 we have also this consideration that, even by the laws of 
 one and the same State, such personal attributes, as they are 
 called, cannot be held to be vested rights. 
 
 We may adduce the following considerations to meet all 
 other theories, whether they assume the validity of the lex 
 domicilii a priori, or establish it upon a law of custom. 
 The rules of law we are now dealing with, it is said, have to 
 do with the condition and attributes of the person. This 
 condition and these attributes are, however, clearly of a legal 
 character ; they exist by force of a positive law, and when 
 that law ceases, these legal attributes themselves cease also. 
 If then, by a logical process, we deduce the universal validity 
 of a rule of law from the fact that it determines the attri- 
 bute of a person, that is a mere analogy drawn from the 
 physical attributes and conditions of persons, which, no 
 doubt, remain the same in every country, and is an inadmis- 
 sible argument. A law that deals with the attributes of 
 persons, according to the common form of expression, has 
 this precise meaning, that rules of law different from the 
 ordinary rules are to be applied to some particular legal re- 
 lations of some particular persons more definitely designated 
 by certain facts. But now it happens that the law has 
 attached to certain actual peculiarities of certain persons, 
 which are either permanent or exist for a considerable time, 
 the application of a number of important rules, which differ 
 from the ordinary rules. One is then accustomed to desig- 
 nate these actual de facto peculiarities as legal attributes and 
 conditions of the person. But it is entirely arbitrary which 
 of these actual physical peculiarities shall retain a name that 
 shows their legal significance ; and, for instance, alongside of 
 the ordinary class of " minors," " majors," " prodigals," 
 "nobles,"" and so on, one might set other classes, such as 
 " landowners," " absentees," " burgesses," " rustics," " those 
 
 1' One is a noble who is descended, as matter of fact, in a particular way 
 from particular families, or who by special State recognition is raised to an 
 equality with those so descended. 
 
§§43,44.] 169 
 
 without rights of succession," &c. If there is, therefore, 
 asserted to be a general customary law, which lays down that 
 the attributes of a person, or his condition in the eye of the 
 law, shall be determined by the law of his domicile, it must 
 be shown in detail what are these actual attributes and pecu- 
 liarities attaching to a person, which are to have, even in 
 foreign countries, some particular legal effect, because by the 
 laws of the domicile of the person to whom they belong they 
 have such an effect, even although the law of the foreign 
 country may attach no such legal effect to them. It is not 
 allowable to proceed byinference from one set of facts to another 
 because both of them are described as attributes of the per- 
 son ; it is only possible to proceed on grounds which justify 
 an analogous extension of rules of law in other cases. We 
 shall enquire specially in the case of each particular legal 
 institution how far the results that follow from general logical 
 principles are modified by customary law. 
 
 § 44. 
 
 Authors who take as their starting-point the concep- 
 tion of legal attributes, or legal condition of the person, 
 acknowledge, as a matter of fact, that in certain cases excep- 
 tions are admitted — as, for instance, in the case of slavery or 
 civil death ; but if it were a logical truth that the attributes 
 of a person are to be recognised as operative all the world 
 over, there could not be any exceptions at all recognised. It 
 is, however, quite conceivable that the courts of one country 
 should hold a person to be incapable of contracting, while those 
 of another hold him capable, and that the lex fori should 
 rule ; or that a man who can vahdly enter upon contracts 
 in one country should be held by the courts of all countries 
 to be incapable of contracting in questions as to obliga- 
 tions on which he has entered in another country, and that 
 so the lex loci contractus should rule. In support of this 
 latter theory, which prevails largely in Enghsh and American 
 practice, there can at least be urged reasons of expediency of 
 no light weight.'^ 
 
 ^ Burge, i. p. 129 d seq.j Story, § 72 et seq.j Solchow, too, Blementa Juris 
 Germanioi, § 57, proposes that the Ux loci actus should determine generally 
 the capacity to contract. 
 
170 [§ 44. 
 
 We have the following observations to make on the lex 
 fori, which is recognised by some as a universal rule in con- 
 sequence of the general principles which they postulate/ and 
 by others as a rule applicable in cases where anomalous legal 
 institutions are in question. No doubt the judge to whom 
 the parties have recourse, whether by a voluntary proroga- 
 tion of jurisdiction or by their forced subjection to his 
 authority, is bound by the law of his own country, to which 
 he owes unconditional obedience. But the law which is 
 good at the seat of the court, is of but little importance for 
 material legal relations. A process is in its nature intended 
 not to give the parties any new rights, but to expound dis- 
 tinctly their rights as they already exist. Therefore, although 
 it cannot be denied that a process constitutes a new legal 
 relation between the parties, with mutual rights and duties, 
 and, moreover, that, by the sentence of the judge, from the 
 very fact that it is his duty to expound finally and distinctly 
 the rights of the parties already in existence, a right already 
 existing may, if the judge shall err, be substantially altered 
 or destroyed, or a right that has not hitherto existed may be 
 created, the judge must nevertheless proceed on the principle 
 that his judgment must be recognised as vahd by the courts 
 of aU countries f for the very reason that he is only called 
 upon to declare rights already existing. The only recog- 
 nised exception is when the judge, by applying the foreign 
 law in question, would, in the eye of his own law, aid 
 the success of inunoraUty.* And so since the Middle Ages 
 the proposition has been constantly maintained by almost all 
 authors, that material legal relations (J^itis decisoria) are, as a 
 
 ^ Of. L. Pfeiflfer in the work referred to above, § 24. 
 
 3 Arret du Parlement de Paris, 22nd April, 1738, BouUenois, ii. p. 489 : 
 " Quand les parties ont contracts ensemble et que les contestations qui naissent 
 de leur contract sont partis dans un tribunal Stranger, il faut juger comme on 
 jugerait dans le tribunal naturel des contestations." Heffter, p. 71 : " No 
 system, can ever exist by which the existence and the conditions of a legal 
 relation, which has been generated in a foreign State, should be determined 
 by the native laws of any other, in which a question as to its operation may 
 exist. In this way an ultra-territorial and even a retroactive force would 
 be given to the laws of that State." 
 
 * Of. on this question, and the so-called anomalous legal institutions, supra, 
 §33. 
 
§ 44.] 171 
 
 rule, independent of the law of the seat of the court, and that 
 legal relations which substantially belong to the law of process 
 are the only relations which are to be determined by the lex 
 fori.^ The opposite view, if different courts should be com- 
 petent, and different systems of law are therein administered, 
 makes the legal relation dependent on the pleasure of the 
 pursuer.^ 
 
 As has already been remarked, we care not in this discus- 
 sion whether, according to the language of some particular 
 law or code, the attributes or the condition of a person con- 
 stitute its subject or not. So long as a definite conception 
 of personal attributes or condition is entirely wanting, it is 
 impossible to carry through systematically such a classifica- 
 tion according to the forms of expression used in the statutes, 
 even although one should desire to refrain from aU. deduc- 
 tions that might be drawn therefrom. Such a conception is, 
 however, wanting ; and one author brings this, another that, 
 subject, under the common title. In this view, one should 
 compare the discussions of Savigny and Wachter with those 
 of Foelix and Story, the latter of whom, for instance, treats a 
 great part of the law of the family under the heading of 
 " Capacity of Persons." 
 
 The first requisite is a precise line of separation between 
 the rules of law that belong to this connection ; and it seems 
 proper to discuss in this place these rules only which deter- 
 mine the general legal position of the person. This position 
 may vary from two points of view : — In the first place, it 
 may vary according as a person has in a higher or lower 
 degree a higher or lower legal capacity — i.e., a capacity to 
 
 5 Paul de Castr., ad Leg., 1 C. de S. Trin., No. 11 ; Bald Ubald in L. 1 
 C. ne Alius pro patre, No. 10 ; Curt. Roohus, De Statutis, § 9, 38-42 ; Mascar- 
 dus, oond. 9, No. 8 ; Burgundus, 7, No. 5 ; BouUenois, i. p. 533, 536 ; Hert., 
 iv. 70 ; Merlin, E^p. Vo. Preuve, I. vi. p. 120 ; Kierulff, Civilr., § 5, p. 76 ; 
 Mittermaier, in Archiv. fiir die Civ. Praxis, vol. xiii. p. 298 ; Wheaton, i. p. 
 495 ; Mass^, ii. No. 262 ; Seuffert, Comm., i. p. 233 ; Wachter, ii. p. 177, 
 Note 298 : " Our laws have not in view the capacity of the foreigner, who 
 eontracts in a foreign country, to enter into contracts." 
 
 ' Rodenburg, ii. p. 2, c. 4 § 5 : " Pluribus in locis nos aliquando defenders 
 tenerrmr nee propterea negoti/wm judicatur ex more loci ubi jvdicatur." 
 Gand no doubt is of another opinion, No. 284 : " L'attribution de jurisdic- 
 tion emporU virtuellement celle de legislation." 
 
172 [§44. 
 
 have certain rights, or to acquire them; and, in the second 
 place, it may vary according as the general capacity of a 
 person to dispose of his whole property, or parts thereof, is 
 in question. All other rules of law do not touch the essence 
 of the person ; their only operation is upon particular rights 
 which accidentally belong to it. 
 
 It follows, in the first place, from the conception of a 
 person, that he should be the subject of rights ; not, how- 
 ever, that he should have definite concrete rights ; it is, 
 however, indispensable for an individual who is to take rank 
 as a person, that he should have the capacity of having 
 rights. The second test of personality, which is not, to be 
 accurate, necessarily bound up with the conception of per- 
 sonahty in every case, but which is indispensable for general 
 legal intercourse, consists in this, that the person should 
 have a legally operative wiU, that is, should be capable of 
 acting. Eules of law as to capacity to act belong to this 
 subject ; persons are by the very meaning of the term capable 
 of legal rights and legal acts ; aU other rules of law fail to 
 touch the essence of personality. In cases, therefore, where 
 particular concrete rights are conceded or denied to a person, 
 there is no question of the essence of the person, but merely 
 of accidental circumstances belonging to that conception. 
 One might be disposed to include in our subject the family 
 rights of a person, but a complete personality is not, accord- 
 ing to modern legal conceptions, conditioned by the fact that 
 the person belongs to a particular family.'^ 
 
 ' The distinction mentioned above as having been taken by Wachter 
 between the attributes of a person and the legal operation of these attributes 
 rests upon a confusion, between the privileges of special classes of persons, 
 which occur in concrete legal relations, 'and the capacity to enjoy rights and 
 to act, that is to say, the rights of personality in the proper sense. It is, 
 for instance, quite accidental whether or not a minor is in a position to avail 
 himself of the privileges which belong to minors on the head of prescription 
 of actions, or by the in integrum restitutio y he may by the law of the land 
 to which he belongs be a minor, and so incapable of acting, and yet by that 
 law be denied the privileges belonging to prescription of actions, or the in 
 integrum restitutio. Both depend on the system of law to which the legal 
 relations wherein it is desired to make use of these privileges, are subject ; 
 the privileges attaching to the prescription of actions are merely an abroga- 
 tion of prescription for that particular case, and so, too, with the in integrum 
 
§ 44.] 1 73 
 
 It will be shown by the following considerations that our 
 subject is limited to the general capacity for legal transac- 
 tions. If by positiye law a person is declared generally 
 capable of disposing of his whole property inter vivos, but 
 incapable of entering upon some particular legal transactions, 
 the real personality of the individual so restrained is not 
 affected. That person has fuU power to transfer all his 
 rights in another way. 
 
 If we were to hold a person, who is prevented from bind- 
 ing himself by some particular form of legal transaction, or 
 from transferring his rights in some particular way, to be of 
 limited capacity, we should in like manner be bound to hold 
 
 restitutio, which constitutes a ground for withdrawal from a legal relation 
 already entered upon, or for the restoration of a legal position that has 
 been lost. Whether a man, who by the law of his domicile is a minor, 
 but a major by the lex loci actus, could claim the privileges which 
 the latter law gives to minors, depends upon whether this law gives such 
 privileges only to persons up to a certain age, or to all those who, because oi 
 their minority, are under guardianship, and cannot attend to their own 
 affairs. In reason we must take the latter solution, and, as the facts are in 
 accordance therewith, those persons who by the law of their homes are 
 under guardianship, may lay claim to these privileges (Of., however, remarks 
 on the in integrum restitutio, infra § 56). Even although the examples given by 
 Wachter are rightly determined by him, the counter argument of Savigny is appli- 
 cable, if it is sought to apply that distinction to the status and capacity of a 
 person. "That distinction," says Savigny, § 362, Guthrie, p. 150, "between 
 the attributes of a person and their legal effects, rests simply upon the circum- 
 stance that many conditions of the person are designated with special 
 names, while others are not. This accidental and indifferent circumstance 
 cannot justify the application of different territorial laws to them. We call 
 him major who has the fullest capacity to act that age can give him ; it is, 
 therefore, merely a name for certain legal effects, for the negation of certain 
 earlier limitations on his capacity. So, too, we call him minor who does 
 not as yet enjoy that full capacity. If a law, however, lays down certain 
 stages of capacity for minors, without giving these stages any special name, 
 there is no reason why these stages of capacity should not be determined by 
 the law of the domicile as well as the entry upon fuU capacity." 
 
 This reasoning destroys Savigny's own theory. He, too, derives the 
 application of the lex domicilii from the fact that it deals with the legal 
 condition of the person as affected by the various rules of law in question. 
 The special legal condition of a person is, however, merely a way of express- 
 ing that under certain circumstances special rules of law are to be applied to 
 the person in question which are not applicable to the legal relations of 
 other persons. 
 
174 [§ 44. 
 
 the wliole inTiabitaiits of a country, in wliicli some particular 
 legal transaction is not recognised, as limited in their 
 capacity. (For instance, in one country it is women alone 
 who are not allowed to bind themselves by bill^ ; in another, 
 no one is permitted to do so). A limitation of the capacity 
 to act jn its true meaning only occurs when a person is dis- 
 abled altogether from disposing of his whole property, or a 
 part thereof, or of particular patrimonial rights belonging 
 to him, by legal transactions.* The truth of this proposition 
 is shown by the example given above. It is often the case 
 that some particular legal transaction is not recognised in 
 some one country ; but since persons must, as a rule, have a 
 wiU that is legally operative, it would be an absurdity if all 
 the inhabitants were unable to dispose of their patrimonial 
 rights.^ 
 
 Lastly, because personality ends with death, we must limit 
 the principle to legal acts inter vivos. In a strict sense the 
 testator does not dispose of his property ; all he can do is to 
 ensure by a declaration of his will that a person shall or shall 
 not acquire a bimdle of assets, and shall or shall not take 
 over a bundle of obligations which were hitherto united in 
 his person. Capacity to make testamentary dispositions does 
 not therefore belong either to those essential conceptions 
 which necessarily go to make up an individual person, or to 
 the conceptions of those attributes which usually belong to 
 one. This proposition may be shown to be apposite by the 
 illustration already given. It is quite conceivable that in 
 
 ' The cases in which a person is prevented from disposing of his property 
 on account of the concurrent right of a third party, have no more to do with 
 this question than the case of a person prevented from disposing of some- 
 thing that is not his own. This distinction, however, as we shall show in 
 treating of the law of property of married persons, is often disregarded, 
 and, it may be supposed, tends to great confusion on the subject (Of. § 42, 
 note 2). 
 
 ' If in any State the inhabitants were absolutely prohibited from alien- 
 ating their real property, or bnly permitted to do so to a certain extent, this 
 would be inconsistent with the modern legal conception of a person and 
 his free wUl, and no argument could be deduced from it to meet what we 
 have said above. In such a case the whole soil, or part of it, would, as a 
 matter of fact, belong to the State, and every citizen would have right 
 merely to the permanent enjoyment of part of the State property. 
 
§ 44.J 1 75 
 
 some countries, as was the case in Germany in old times, 
 testamentary dispositions should not be recognised ; disposi- 
 tions inter vivos are, however, indispensable for the inter- 
 course of life.^° 
 
 Incapacity to enter upon particular legal transactions does 
 not constitute any limitation of the capacity to act, if the 
 person so restrained retains the capacity to dispose of his 
 whole property inter vivos, by means of other legal trans- 
 actions. Capacity to act is limited by a law which refuses 
 minors altogether the power of disposing of their property 
 by transactions inter vivos ; and so, too, by another law which 
 interdicts persons declared major by an ordinance' of the 
 Government from disposing of their real property, if they 
 should not happen to have attained the true age of majority ; 
 or by a law which gives minors who have reached a certain 
 age the right to manage and spend the regular income of 
 their property, but declares it to be inadmissible for them to 
 dispose of the capital of their estate. It is not, however, any 
 limitation of the capacity to act when women are prohibited from 
 bindiag themselves as security, sons not yet forisfamiUated 
 by loans, country people or officials by bills, or any one who 
 has not reached a certain age, is prohibited from making a 
 testament. Of course, those legal transactions which are 
 essential to a transference of property, and are indispensable, 
 must be left quite free to the persons in question ; otherwise 
 we should have instances of true incapacity to act. Obliga- 
 tions by bills, or in security, or even loans, do not however 
 rank among the legal transactions necessary for any inter- 
 course even although undeveloped. On the other hand, we 
 have a true case of limitation of capacity, in a small way, if 
 a person is prevented from bestowing charity ; it is then an 
 impossibility for that person to dispose of his property at all 
 upon the footing of receiving no equivalent for what he gives 
 away. Cases of true incapacity to act are therefore easily 
 distinguishable from those of apparent incapacity. This 
 distinction, however, does not in its 'essence coincide with 
 the distinction which, as we have seen, many writers make 
 
 ^o The theory that capacity to test is an instance of capacity to act, leads to 
 the contradiction adverted to below (§ 108, note 2). 
 
176 [^44,45. 
 
 between a general and a special incapacity to act. No 
 boundary can be drawn between general and special incapa- 
 city to act, since tbe ideas of sucb general and special incapa- 
 city are merely relative/^ and no reason can therefore be 
 assigned for judging differently of the general and special 
 incapacity in international intercourse. General iacapacity 
 is merely a collective term for all special incapacities in the 
 ordinary sense. Even these authors who apply different 
 propositions in law to general and special incapacity can give 
 no definition of these terms. The examples of special incapa- 
 city to act as a rule coincide with the cases which we have 
 been compelled to designa,te as not belonging truly to any 
 limitation of personality and the free-will that belongs to it, 
 and it is a proof of the truth of our assertion that these 
 writers attempt to withdraw particular cases of what they 
 term special incapacity from the rules of law that are appli- 
 cable to general incapacity ; because the examples, to which 
 they often refer as well established by the practice of the 
 courts, are the very cases which we have had to distinguish 
 from incapacity to act in view of a more precise definition 
 of that term. 
 
 §45. 
 
 The rules of law, which deal with the legal capacity of a 
 person, determine under what conditions an individual is to 
 be viewed as a legal subject, either generally or in relation 
 to particular isolated rights. It might readily be supposed 
 that, as soon as a question about a foreigner was raised, 
 the actual conditions which are recognised by the laws of 
 the domicile of the foreigner should be substituted for the 
 conditions under which any proposition of law that touches 
 legal capacity is applied to natives. A man, therefore, 
 who by the law of his domicile could not acquire real pro- 
 perty, would be equally disabled here, just because he was a 
 foreigner. This would, however, imply a decided encroach- 
 ment upon a principle which is assumed in modern inter- 
 national law — viz., that foreigners and natives have the like 
 capacity in the eye of the law. 
 
 " See, on the other hand, Savigny, § 364 ; Guthrie, p. 157 ; Wachter, ii. 
 p. 172. 
 
§ 45.] 177 
 
 At the same time, the following considerations prevent this 
 conclusion. Those rules of law on which the capacity of 
 individuals to have rights depends rest really upon the political 
 and moral ideas of a nation. If the law recognised at the 
 domicile of the foreigner were to rule, it would often happen 
 that the very facts and circumstances which would with us 
 confer full rights or some special right, would constitute a ground 
 for denial of these to him ; {e.g. in one country Cathohcs 
 alone, in another Protestants alone can acquire real property.) 
 
 Lastly, there are certain rules of law affecting legal capacity 
 which can only be carried out because definite public regula- 
 tions actually exist in one State, whUe these regulations do 
 not exist at all or cannot be applied to the particular case 
 in some other State where the person concerned is actually 
 resident : {e.g. How is it possible to treat a man as civilly 
 dead in our country because he has been sentenced abroad 
 for a crime committed in another country to a punishment in- 
 volving civil death, although he has not been surrendered by 
 us to the foreign criminal authorities or confined in prison ?) 
 
 We may say, therefore, that the question is to be resolved 
 just as if the foreign law did not exist at all, and all we need 
 regard is whether the actual conditions are present which are 
 essential to the application of some rule that increases 
 or diminishes legal capacity according to that system of law 
 under which the question otherwise falls. 
 
 If we are concerned, therefore, with the acquisition of real 
 property, the lex rei sitae will determine the question of the 
 capacity of the foreigner to acquire it.^ 
 
 If the validity of a legal act is called in question because 
 an individual by the law of his domicile is not recognised as a 
 person at aU, e.g., because slavery, or some kind of bondage pre- 
 
 1 This is a case where the falsity of the proposition that in the case of a 
 prohibitive law of that kind the judge must apply his own statutes, is 
 strikingly exemplified. The judge cannot give a pursuer right to a parcel of real 
 property situated abroad, if that pursuer is, by the law of the place where it 
 Ues, incapacitated from acquiring it, Cf., too, the rule which Story § 101 de- 
 scribes as generally recognised : " The capacity, state, and condition of persons 
 according to the law of their domicile will generally be regarded as to acts 
 done, rights acquired, and contracts made, in the place of their domicile, 
 touching property situated therein." 
 
 N 
 
178 [§ 45. 
 
 vails there, the ruling law is the law of the place in which 
 the individual actually is at the time when he enters into 
 the obligation ; for this was the moment when the will of the 
 contracting parties was directed to the origination of their 
 contract, and it cannot affept in any way the vahdity of these 
 declarations of will, that at some subsequent time the act is 
 brought into question before the courts of another country, 
 or is to be put into operation in another country, unless 
 there sh'aU have been either expressly or by implication some 
 ratification of the original contract at a later date and in 
 another place. If the opposite view were true, the judge 
 would have to assume the validity of his own law all over the 
 world, and it would scarcely be possible to conceive that there 
 could be any legal rules for intercourse with foreign countries. 
 From this, too, it follows that one who by the law of the 
 place of his actual residence has no legal person, cannot, so long 
 as he remains there, be recognised even by us, as capable of 
 exercising rights or making declarations of will, as by letters. 
 Eeasons of practical utiUty recommend this conclusion also. 
 If one who is ranked as a slave or as civilly dead in a foreign 
 country could emit there declarations of will so as to affect 
 his property situated in this country, the special condition in 
 which he stands might be made the means of extortion and 
 oppression, and the civil death might indirectly, if his pro- 
 perty were, by means of declarations made by himself, removed 
 out of our country, have its first effects upon property 
 situated in our country. In such a case, an independent 
 ewra absentis must be constituted upon the instructions and 
 orders of the person concerned.^ 
 
 Rules of law as to capacity to act have quite a different 
 purpose. It is not their object to withdraw the possession and 
 the enjoyment of certain rights from those who are incapaci- 
 tated ; ' it is their care that such persons shall not involve 
 themselves in loss by their own acts. This care for the 
 person must be a permanent one, if it is to have effect ; it 
 extends therefore to aU persons who permanently belong to 
 the state, i.e., who are domiciled there. It is, no doubt, 
 conceivable that a system of law should recognise consistently 
 
 2 Of. infra, § 106. 
 
§ 45.] 179 
 
 as minors all foreigners wlio had not attained the particular 
 age fixed by that law as the age of majority ; but this could 
 only be carried out, if at the same time there were established 
 a guardianship for foreigners who were resident in our 
 cotmtry only temporarily.^ It is, however, plain that this 
 requirement (and it would be necessary to estabUsh a 
 guardianship for every incapacitated person) could not be 
 carried out, and, as a matter of fact, no one has ever thought 
 of developing the idea. It necessarily follows, without 
 requiring proof of the existence of any customary law, accord- 
 ing to the reasonable sense of the statutes on the subject, 
 that one who is capable of acting by the law of his own 
 country must be treated by the courts of aU countries as 
 capable.* 
 
 The converse of this proposition, viz., that any one who by 
 the laws of his own domicile is incapable of acting is to be 
 recognised as incapable everywhere, cannot on the other hand 
 be shown to follow as a necessary logical inference. On the 
 contrary, the inference from the purpose of these laws as to 
 incapacity to act, as already expounded, is that foreigners, if 
 they have the capacity to act by the laws of the country 
 where the transaction which may be in question takes place, 
 must be held to have that capacity by the courts of all 
 countries except those of their native country, and those of 
 any other where a similar law to that recognised in their 
 own country is in force. It may be laid down that 
 the legislature will never be inclined to show greater 
 protective care for foreigners than for its own subjects, 
 and if it proclaims that the latter on attaining a certain age 
 no longer stand in need of the care which it exercises over 
 
 ^ No doubt there is in some countries a system of guardianship for those 
 who haye landed property ; that is explained by the fact that principles 
 of feudal law are either still recognised there, or erroneously adhered to ; but 
 it does not furnish any objection to our theory, since on the opposite assump- 
 tion there would have to be a special system of guardianship established for 
 foreigners who had no landed property. 
 
 * In so far I am unable to agree with the following observation of Wachter 
 (ii. p. 177). " It is not a necessary consequence of the silence of our laws as 
 to the status of foreigners, that they intend to proclaim that their general 
 provisions on that head are inapplicable to foreigners, unless they specially 
 confine them to their own subjects. 
 
180 [§ 45. 
 
 minors, but are quite fit to protect their own interests, it 
 would seem thereby to lay down a similar rule for foreigners.^ 
 Here, however, we are met by a customary law, which is 
 recognised at least all over the Continent of Europe, accord- 
 ing to which this logical deduction is pushed aside, and in this 
 second case also foreigners are judged by the law of their 
 domicile. The origin of this customary law, of which we 
 will give a more particular exposition in connection with the 
 different legal institutions, is explained by the gradual 
 nature of the development of the idea of sovereignty in the 
 individual European States. Jurists looked upon aU terri- 
 torial laws, which deviated from the common imperial, i.e. 
 the Roman law, by which the term of majority was deferred 
 as long as it possibly could be, as statutes binding only upon 
 persons who either voluntarily subjected themselves to them 
 (a case that often happened when new towns were founded or 
 new laws enacted), or for whom there could be invented a 
 fiction of voluntary subjection to them, as in the case of 
 those who committed some delict which was punishable 
 according to the particular law there recognised, although 
 not so by common law. Hence came the rule that a law 
 which concerned the person was not binding on foreigners, a 
 rule which applies to cases of the kind in question if it is to 
 have any appUcation at all, since the care of the person of 
 
 ^ This is the result at which the Supreme Court of Louisiana arrived as the 
 ground of a judgment, which is, it must be said, assailed by Story. Story, 
 § 75, says : " Now, supposing the case of our law, fixing the age of majority 
 at twenty-five, and the country in which a man was born and lived previous 
 to his coming here, placing it at twenty-one, no objection could perhaps be 
 made to the rule just stated. And it may be, and we believe would be, true 
 that a contract made here at any time between the two periods already men- 
 tioned would bind him. But, reverse the facts of the case and suppose, as 
 is the truth, that our law placed the age of majority at twenty-one ; that 
 twenty-five was the period at which a man ceased to be a minor in the country 
 where he resided ; and that at the age of twenty-four he came into this state, 
 and entered into contracts : would it be permitted that he should in our courts, 
 and to the demand of one of our citizens, plead as to protection against his 
 engagement, the law of a foreign country of which the people of Louisiana had 
 no knowledge ? " 
 
 But it is not the mere ground of expediency, that the inhabitants of one 
 country are not bound to know the laws of another, that is to determine the 
 question. 
 
§45.] 181 
 
 tlie incapacitated is very prominent in these statutes. To 
 that too was added the fact, which, as we have seen, favoured 
 the rise of the rule " Locus regit actum," — viz., that all the 
 law courts of Christendom were considered as belonging to 
 one great empire united under the Emperor and Pope, if not 
 de facto at least de jure. Now, if we take a case of inca- 
 pacity to act, which has its origin in a judicial order, — the 
 incapacity of the prodigal, — this must receive effect every- 
 where (as the decrees of one court must be recognised by 
 every other court), if it was the deliverance of the judex 
 domicilii, and what had been laid down by the judex domicilii 
 must also have been laid down by the enactment of the legislator 
 of the domicile, particularly as in the Middle Ages the func- 
 tions of the judge and legislator were frequently united in 
 one and the same person.^ This theory, originated by later 
 commentators, has been followed by almost all writers down 
 to the most recent times with a very few exceptions. They 
 disputed over special cases, which were by many impro- 
 perly ranked alongside of questions of capacity to act ; they 
 did not define accurately their conception of that capacity, 
 and thus, in their endeavours to unite a recognised system of 
 practice and all its detailed consequences with their theory 
 of the universal validity of the lex domicilii, they set up 
 inconsistent and capricious rules : but in these cases, which; 
 according to the theory we have laid down, belong to the 
 subject of capacity to act, they, and the courts too in their 
 judgments, made the lex domicilii the fountain, even 
 although, like J. Voet,'' and many of his followers, they 
 derived the general recognition of this law from the practice 
 of friendly intercourse among individual States, the so-called 
 Comitas Nationum, and not from logical considerations. The 
 Legislature in many cases attached itself to this theory.* 
 
 8 Of. Barthol. de Salic, ia L. 1, 0. de S. Trin., No. 14. Alb. Brunus, de 
 statutis, X, § 57. 
 
 '' De Stat., § 7, Of. witli tlie passages cited below in connection with the 
 different rules of law. 
 
 ' Besides the authors already cited, the following pronounce generally for 
 the validity of the kx domicilii : Titius i., c. 10, § 26 ef seq. ; Eeyscher, § 82 ; 
 Phillips, § 24, p. 187 ; Hofaeker, de eff. § 24 ; Prinoipia, § 139 ; Hauss, p. 
 25 ; Hommel Khaps. Cjuaest., vol. ii. obs. 409, No. 3 ; Eichhorn, § 35 ; Schaf- 
 
182 [§ 45. 
 
 The arguments adduced by some writers — and that 
 mainly in the practical treatises of England and America, 
 from a practical and a political point of view — to meet this 
 theory, cannot be recognised as universally applicable. It is 
 particularly well established that the rule, " Qui cum alio con- 
 trahit, vel est vel esse debet non ignarus conditionis ejus," 
 
 ner, § 33; Kliiber, 55 ; Eeinhardt, Erganzungen, i. 7, p. 130 ; Heffter, § 38, 
 1 : — " A foreign State may, no doubt, modify or disregard altogether " the 
 legal relations " (■i.e., status of citizenship, in which Heflfter includes capacity 
 to act) " when it is called upon to apply them to conditions, persons or things 
 in its own territory ; if, however, it does not do so, it implies that they are 
 to be left to be determined by the law of the domicile :" Thol., § 78 
 (although with the preliminary explanation that to treat foreigners by the lex 
 domicilii is only a statistical rule.) Wening Ingenheim, § 22 ; Miihlenbrnch, 
 72 ; Spangenberg, Dissertations, i. p. 149 (with a note that this theory has 
 been followed in practice by the Supreme Court of Appeal at Celle.) Mitter- 
 maier, § 31. The fourth article of the Statute Book of the Canton of Bern ; 
 1st and 3rd articles of the Statute Book of Freiburg ; § 10 of the Regulations 
 of 10th November, 1834, for the Papal States ; § 33, §§ 4 and 34 of the 
 Austrian Statute Book (on this cf. Savigny, § 363, Guthrie, p. 156 ; note on 
 linger, p. 163) expressly recognise that a foreigner's personal capacity to act 
 is to be determined by the lex domicilii, not merely in the case of subjects 
 who enter into contracts abroad, but also in the case of foreigners who enter 
 into contracts in the territory of these States. Codex. Maximil. Bavaricus 
 civ. i. 2, § 17. It is silently implied in the provisions of the Code Civil, art. 
 3. (So, too, the universal opinion of French jurists, confirmed by constant 
 judgments of their courts.) The same provision is to be found in the 12th 
 Article of the Sardinian Statute Book, Article 3rd of the Statute Book for the 
 Canton Wallis, Article 3rd of the new Statute Book for the kingdom of Poland, 
 Article 9th of the Statute Book of Louisiana. The 23rd, 34th, and 35th 
 'sections of the introduction to the AUgem. Preuss. Landrecht contain 
 express Recognition of the view defended here as applicable to foreigners who 
 deal in Prussia, although there are one-sided modifications in favour of native 
 Prussians. Prussian ordinance for Courts i. Tit. 1, §§ 5-6. See Savigny, § 363. 
 It is only the Statute Book of the Netherlands, art. 3rd and 9th ; the Statute 
 Book for the Two Sicilies, Arts. 6th and 5th ; and the Russian Statute Book 
 that apply the law of their domicile to natives who enter upon legal relations 
 in another country, but the law of the country itself to foreigners who con- 
 tract in it (cfi Foelix, p. 75). The transactions of Saxons in a foreign country, 
 and of foreigners in Saxony, are differently treated in the Draft Statute Book 
 for the kingdom of Saxony, § 7 : " These " (the laws of Saxony) " are to be 
 applied just as much to the transactions of Saxon subjects in a foreign 
 country ; " and § 8, " The personal capacity of a foreigner for legal relations, 
 is, as a general rule, to be determined by the laws of the State to which he 
 belongs ; but if he has entered into an obligation in this country in connec- 
 tion with affairs of ordinary commerce, the capacity that he has by the law of 
 
§ 45.] 183 
 
 cannot possibly be applied to those conditions of personality 
 whicb are created by unknown foreign rules of law. If tbe 
 court is not required to know the laws of another country, 
 and in every case may require proof of them, how can we be 
 entitled to presume that private persons have such know- 
 ledge ? It would appear simpler and more practical to apply 
 none but the law of the place where the transaction is con- 
 cluded, or where it is to be carried out ; because we may 
 assume that the parties have voluntarily betaken themselves 
 to these laws, and that everyone who trades in a foreign 
 country must know to what laws he thereby subjects 
 himself. 
 
 It must be confessed that the unquaHfied appHcation of 
 the lex loci actus has an unquestionable advantage in practice 
 over the application of the lex domicilii, if the latter is to 
 determine not merely the capacity to act in its narrower and 
 true sense, but also the so-caUed special capacities to act. 
 By this means an intolerable burden would, as a matter of 
 fact, be laid upon commerce. It would require the natives 
 of our country, in entering on a contract, to observe all the 
 formalities, which perhaps are strange, and in the country of 
 
 his own country leaves him, proTided that the laws of this country hold him 
 capable of acting." The result of the provision of the Statute Book of Baden, 
 art. 3rd, is not clear, if it adds to the provision of the Gode Civil the clause 
 that statutory rules as to the form and validity of acts entered upon in 
 Baden are to be applied alike to foreigners and natives ; for, as Foelix, p. 75, 
 appositely remarks, the exceptional rule of determining all the conditions as 
 to the validity of a legal transaction by the laws of the country excludes the 
 application of foreign laws as to the capacity of foreigners to act. 
 
 The authors of the Continent of Europe have hardly dealt with the view 
 that the lex loci contractus rules universally the capacity to act. Heineccius 
 however, Prselect. ii. c. 11, § 5, lays it down. He raises the question, what is 
 to be said if the contract is concluded at sea or on a desert island ? and wishes 
 in such a condition of things to have recourse to the law of nature, and to 
 inquire whether the parties, without respect to their age, have the necessary 
 understanding. But as there is no such thing as a law of nature in the sense 
 Heineccius means, this instance of a desert island, which can scarcely occur, 
 speaks against his theory. As to contracts concluded at sea, cf. infra, § 115. 
 Alef s view (No. 32), stands quite alone : " Quoties de habilitate personie est 
 d/isceptatio, toties prcevalet statutv/m quod actui resistit, ideoqwe quod agitw 
 effectu caret." As it is simply postulated it needs no refutation. 
 
 " Story, § 75 et seq.y Burge, i. p. 27, 28. 
 
184 [§45. 
 
 the other party to the contract have entirely lost their mean- 
 ing,^" a thing which it is often impossible to do ; or that the 
 special regulations for particular classes of society should be 
 Imown to the natives of a foreign country, regulations of which 
 they have no conception, since these classes of society do not 
 exist there. (We shall see that, even where, according to 
 the words of a statute, the capacity or incapacity of a person 
 to enter on legal transactions must apparently be universally 
 determined in accordance with the laws of his domicile, as 
 a rule such a provision is not applied to the so-called 
 particular capacities for acting.) The case is quite different 
 with incapacity to act in the sense in which we have 
 used it. The institutions that are connected with it are 
 to be found ia every country in one form or another, 
 because they rest upon the natural qualities of the persons 
 concerned." The native of a foreign country will, therefore, 
 more easily, in the case of such a person, reach the know- 
 ledge of the fact that the person with whom he is dealing is 
 by the laws of his domicile incapable of acting. Then, too, 
 the persons included by us in this class, just because they 
 have no power of disposing of any part of their property, or 
 at least of the capital of it, have no means in their hands for 
 carrying on business permanently in a foreign country. A 
 prudent man of business would not be Ukely to go deeply 
 with them into important undertakings. A man, however, 
 who embarks on transactions of credit with unknown persons 
 deserves no greater protection from the law, if he loses his 
 money by the incapacity of these persons, than if he had 
 done the same thing with insolvent persons. -^^ 
 
 w We may take the case of the guardianship of the female sex, still existing 
 in some countries, where a husband must merely Tpro forma concur with his 
 wife in entering upon a legal transaction. 
 
 11 We cannot, however, draw a distinction between personal qualities 
 which may and those which may not be presumed to exist, and determine 
 that the hx domicilii rules in the first case but not in the latter. So Phillips, 
 § 24, p. 187 ; for what is a quality the existence of which may be presumed, and 
 what one that cannot? Against this distinction see Wachter, ii. p. 168, note 287. 
 
 1" This consideration may also be urged against the universal recognition 
 of the law of the domicile in the so-called special incapacities. The persons 
 in question have all their fortune in their own hands, and may, with the 
 exception that they cannot deal with it in some particular way, make ducks 
 
§ 45.] 185 
 
 The cases in whicli the observance of the law of a 
 foreigner's domicile might unfairly affect the subjects of 
 any State are very much reduced by the principle which is 
 recognised by the laws of aU civilised nations — that no one 
 can appeal to his own fraud in legal transactions. Even the 
 Roman law refuses restitution to a minor who had fraudu- 
 lently represented himself as major. When a man is in his 
 own country, he can only carry out a deception of the kind 
 by falsely asserting for himself a greater age than is the case, 
 or falsely making claim to the venia cetatis ; but in a foreign 
 country he has the further opportunity of imposition by 
 giving up his age correctly, and asserting that, by the laws 
 of his domicile, that age is held as majority ; or by fraudu- 
 lently concealing what his native laws are, under circumstances 
 which require him to disclose them. 
 
 On the other hand, the principle by which the lex loci con- 
 tractus decides, apparently so convenient and simple a 
 principle for intercourse, leads to very grave consequences. 
 Strange results will, as matter of fact, happen : a man is 
 incapable in one place, but in another can bind himself in 
 every way. The ward would in many cases have to make 
 but a short journey to withdraw himself from his guardian's 
 authority, and there would be a great probability that this 
 power would be dishonourably used to damage the minor by 
 means of disadvantageous transactions. It is no answer to 
 this that, if majority is earlier attained with us, younger per- 
 sons have to take care they do not enter on prejudicial 
 transactions ; for one to whom the administration of his own 
 property has been regularly intrusted certainly stands in a 
 very different case, in such matters as these, from one who has 
 the power for a short time in a foreign country, against the 
 wiU of his guardian, to contract independent legal relations. 
 We must besides recollect that if the incapacitated person 
 were sued in the courts of his own country, these courts 
 would hardly, in judging of his capacity, take as the ground 
 of their judgment the laws of the foreign country ; and, on 
 
 and drakes of it as they like. An appeal to privileges whicli are only recog- 
 nised in particular legal transactions seems, in a foreign country, to be an 
 attack upon bona fides, an essential of commerce, that cannot be tolerated. 
 
186 1% 4:5, Note K 
 
 the other hand, it is probable that if a jurisdiction had been 
 exercised by the foreign country, they would refuse to 
 execute a sentence in collision with their own law on this 
 point.-'* 
 
 N'ote E. on §§ 42-45. 
 
 [The subject is so fully discussed in the text, and the refer- 
 ences to different authorities are so complete, that there is 
 little to add. Eeference may be made to the last chapter of 
 Lord Fraser's work on " Parent and Child," p. 570, et seq., for 
 an exhaustive discussion of the principles of international law 
 applicable to the present question. His lordship comes to the 
 conclusion that in Scotland the lex domicilii will determine 
 whether a person is to be considered a minor or of full age, 
 and will also determine what are the privileges of minority. 
 This rule needs no qualification in cases where the foreigner 
 alone is principally concerned : his personal and domestic re- 
 lations, his powers of managing his estate, and generally aU 
 questions other than questions of contract, will be solved, in 
 so far as they are affected by the minority of the foreigner, 
 according to his own personal law — i.e., the law of his 
 domicile. But when questions of contract emerge, the rule 
 must be quahfied : we have then to deal with the interests of 
 a Scot who has contracted with a foreigner, as well as with 
 those of the foreigner himself, and international law must deal 
 fairly with both parties. The question for solution in such 
 cases wiU always be, did the Scotsman know the condition 
 and status of the person with whom he contracted ; did he 
 use reasonable care and prudence ; was he put upon his 
 enquiry ; and has he by his own neglect placed himself in a 
 position of disadvantage 1 If he has acted prudently and 
 with reasonable care, and if there was nothing in the appear- 
 ance of the other party or the nature of the transaction to raise 
 enquiry, justice requires that the lex loci contractus should 
 govern the rights of parties, and that the foreigner should not 
 be able to shield himself by appealing to his own law of 
 status, of which the other party was ignorant, and to which 
 his attention was not directed. 
 
 13 Cf. Story, § 106. 
 
J!foteK\ 187 
 
 The riile admits, according to his lordship, of another ex- 
 ception ; obKgations in re mercatoria by a minor engaged in 
 trade, and debts for board and lodging, will bind a foreigner 
 as much as a native, and upon the same grounds. 
 
 These distinctions are nearly identical with the distinctions 
 taken by French law. The French law in its general state- 
 ment is that the term of minority is always to be ascertained 
 by reference to the law of the country of the foreigner's 
 nationahty ; and, for example, a Cuban, by whose native law 
 the age of majority is twenty-five, is held incapable of con- 
 tracting in France before attaining that age (Trib. civ. de la 
 Seine, Ferron v. de Santa Venia, 2nd July, 1878.) But 
 this rule is qualified by another — ^viz., that French courts wiU 
 protect French creditors, if they have acted in good faith and 
 without rashness. A Cuban of twenty-two years of age, who 
 by the law of his own country would not attain majority till 
 twenty-five, whereas in France twenty-one is the age of 
 majority, had accepted certain biUs, and had stated thereon 
 that he was domiciled in France ; the bank which dis- 
 counted these bOls had not been in direct communication 
 with him, but had made inquiries from one of his creditors 
 who had been the medium between them, and had been 
 assured of the fuU capacity of the acceptor. In these 
 circumstances, the plea of incapacity was repelled (Four- 
 geand v. Comte de Santa Yenia ; Cour de Paris, 10th 
 June, 1879). 
 
 In Belgium the rule is that the status of each person is 
 determined by the law of his own country : thus a Dutch 
 minor, who is by the law of Belgium major, cannot dispose of 
 his real property in Belgium without observing the precau- 
 tionary measures which Belgian law requires in the case of 
 the alienation of the heritage of minors. It wUl be noted 
 that the status of the person in this case is determined by the 
 law of his domicile, none the less that the subject of the 
 contract is real estate (Erambert v. Clerdent, Cour de Lifege, 
 31st December, 1879). 
 
 In Germany the ordinary rule is the same as generally upon 
 the continent — viz., that the status of the person is deter- 
 mined by the law of his domicile ; but by § 53 of the German 
 Code of Procedure, a foreigner who has no capacity to sue by 
 
188 [Note E,i 4:6. 
 
 the law of his own country, may yet sue in Germany, if the 
 law of that country allows natives of his age to do so. 
 
 In America the rule seems to be that laid down by Story, 
 as cited by the author — ^viz., that the lex loci contractus rules 
 (c£ the case of Saul and his creditors, cited supra, note 5, 
 and by Story). 
 
 In England there seems to be doubt whether minority and 
 majority are to be determined by the law of the place of the 
 contract in question, or by the law of the domicile of the 
 person : on the one hand, in Simonin v. MaUac, 1860, 2 S. 
 and T., 77, a learned judge says : " In general, the personal 
 competency or incompetency of individuals to contract has 
 been held to depend upon the law of the place where the 
 contract is made ; " whUe, on the other hand, the very high 
 authority of Lord Westbury sanctions the statement 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. For it is on 
 this basis that the personal rights of the party — that is to 
 say, the law which determines his majority or minority, his 
 marriage, succession, testacy, or intestacy — must depend" 
 (Udny V. Udny, 1869, L. K., 1 Sc. App. 457 and 7 MT. 
 H. of L., p. 89.) Westlake, pp. 45-6, inclines to the view 
 that the doctrine of Lord Westbury may be taken as likely to 
 be regulative of EngUsh law in the future]. 
 
 §46. 
 
 The following restrictions of the rule as to the universal 
 validity of the law of the domicile which have been made 
 by various authors seem to have no good basis : — 
 
 (1.) Many authors confine the rule to cases of collision 
 between different provincial laws.^ This distinction has been 
 already refuted (supi'a, § 28). 
 
 * Holzschuher, L p. 58 : " These provincial laws have all the sanction of the 
 sovereign of the country, and, therefore, all courts that are subject to that 
 authority are bound to recognise and apply them to the legal relations, the 
 transactions, persons, or things for which they are enacted." But the question 
 always is — for what legal relations territorial and provincial laws are enacted. 
 Holzschuher, in the case of foreigners, pronounces for the application of the 
 hx loci actus J Puchta, § 113, on the other hand, who lays down the same 
 distinction, for that of the lex fori. 
 
§ 46.] 189 
 
 (2.) Kori's theory, too (iii. p. 174), by whicli the lex 
 domicilii will rule only in cases concerned with property 
 that is situated in the country, is also without foundation. 
 As we haTO shown above .(§ 24, ad fin.), it rests upon an 
 inadmissible confusion between the subject of the judge's 
 sentence and the incidental possibility of carrying out that 
 sentence. 
 
 There is, lastly, a question that is variously answered by 
 authors, viz., whether, in cases such as we have discussed, we 
 must have regard to the laws of the country to which the 
 person belonged at the date of the transaction in question, 
 or to that to which he belonged at the date of his birth. 
 The majority of authors who have had regard to this speci- 
 ality have pronounced for the former,^ and undoubtedly they 
 are right. Laws whicK have to do with capacity to act take 
 as their object a permanent protective care for the person, 
 and they are made applicable to such persons only as belong 
 to the State. There is an end put to that protective care 
 if the connection of the person and the State is brought to 
 an end by a change of habitation into another territory ; then 
 the person stands under the protective care of the laws of his 
 new home. 
 
 Although some writers, such as Merlin,^ have expressed 
 themselves hesitatingly in favour of the opposite principle, 
 and others, like Bouhier,* following the lead of Froland,^ have 
 pronounced distinctly in its favour with important exceptions, 
 this difference of opinion may be thus explained, if we 
 examine more closely the deductions of these authors : — In 
 the first place, they turned their regard upon the rules of 
 law which regulate capacity to have rights in its true sense 
 (c£ supra, § 42), and by virtue of an universal custom, 
 
 2 Argenteus, No. 47-49 ; J. Voet, Comm. in Dig. iv. 4, No. v. 1, No. 101 ; 
 Burgundus, ii. No. 5, 6, 8 ; Rodenburg, ii. p. 2, c. 1, §§ 4, 6, Pothier, Gout 
 d'Orleans, c. 1, art. 1, No. 13 ; Hert, \y., No. 5-8 ; Brinckmann WissenschaftJ. 
 Bechtskunde, i. p. 20 ; Phillips, p. 189 ; Burge, i. p. 118-9 ; Story, §§ 59, 69 ; 
 Savigny, § 365 ; Guthrie, p. 169-70. 
 
 3 E6p. Autorisation Maritale, § 10, art. 4 ; Majority, § 4 ; Effet rdtroaotif, 
 §§3 and 2, art. 5 and 3. 
 
 « Chap. 22, §§ 4-10, 147-8. 
 
 8 On that question see Story, § 55a. 
 
190 [§§46,47. 
 
 in the conspicuous case of nobility, a nobleman wbo 
 leaves bis own country for another, as a rule retains in that 
 country the privileges of nobility. In the second place, these 
 authors draw into this connection rules of law which are 
 concerned not with the question of capacity to act but with the 
 rights of third parties over an entire estate, and the consequent 
 want of power of alienation, e.g., the rights of a husband to 
 the property of his wife. Lastly, however, they think it 
 absurd that one who has already attained majority at home 
 by his native laws, should again be made a minor by the law 
 of his new domicile, if it requires a more advanced age. 
 This result, however, as we shall see below, is removed by 
 means of another consideration.^ 
 
 (2.) Feeedom and Slavery ; Bondage. 
 
 §47. 
 
 It may be considered as admitted by all the authorities, 
 that any one who is in his domicUe a slave is recognised as a 
 free man, so long as he is in a country which does not recognise 
 slavery.^ The question, as to whether a man is a slave or free, 
 coincides with the question whether he is capable of any legal 
 rights or not, and that result immediately follows from what 
 we have said as to the legal rules upon capacity. We may 
 also refer to the consideration which is in the view of many 
 persons, viz., that slavery must be regarded in a country 
 which does not recognise it as a condition totally at variance 
 with the laws which are laid down for the government of that 
 country. It seems a more doubtful question whether one 
 who has become free will become once more a slave if he 
 shall return to his domicile. As we cannot proceed upon 
 any such hypothesis as that the slave by his stay in the 
 
 6 Of. infra, § 52. 
 
 1 Mornacius, ad L. 20, D. 4-6, ex quibus causis; J. Voet, Comment, in Dig., 
 i. 5, § 3; and so early as 1315, an ordinance of Louis X. of the 2nd July. See 
 Mass6, ii. p. 83-4. It was, however, permitted by some other older French 
 edicts that slaves might be temporarily brought to France from French colonies. 
 — Mass^. See, too, Groenewegen ad Inst., 1, 8, No. 3 ; Story, § 96 ; Wachter, 
 ii. p. 172 ; Savigny, § 349 and § 365 ; Guthrie, pp. 80 and 168. 
 
 2 Schaffner, p. 41-6. 
 
§ 47.] 191 
 
 other State acquires another personal status (see supra, § 43, 
 adfin.),^ we arrive at the conclusion which is recognised in 
 American practice, that a person returning home in this way 
 is again to be held to be a slave there if his stay in the other 
 State has been merely temporary.* In any case the slave 
 State would refuse to see any ground for freedom in the 
 merely temporary stay in another country, while the slave 
 could not appeal to the protection of the law of the free 
 State, since he does not belong to it. It is otherwise if the 
 slave acquires a domicile in the foreign State, and thereby 
 becomes attached to that State. The international principle 
 of the free right of emigration requires that he who was a 
 slave should be recognised as a citizen of his new country by 
 aU States, and, among them, by that in which he was once a 
 slave. Although it is not at variance with modem inter- 
 national law that slavery should exist in particular States, the 
 validity of this institution must, however, be firmly restricted 
 to these particular territories ;^ and no recognition can be given 
 to this merely local institution even by countries in which 
 rules that are universally recognised provide that the enact- 
 ments of a foreign legislature shall be applied and protected. It 
 is thus recognised as a well-established rule, even in the United 
 States of America, although every one knows that runaway 
 slaves may be pursued there even in the free States, that if a 
 slave, with his master's leave,^ Uves for a considerable time in 
 a free State, and acquires a domicile there, his freedom must 
 thereafter be recognised even in the slave State.'^ 
 
 All that has been said as to slavery must also be assumed 
 to be applicable to bondage, in so far as that does not merely 
 give right to certain services. 
 
 ' See the ground of decision of the court of Massachusetts, reported by 
 Story, § 96, note 6, p. 121 : " Not so much because his coming ■within our 
 territorial limits, breathing our air, or treading on our soil, works any altera- 
 tion in his status or condition." 
 
 * Story, p. 131. 
 
 5 Grotius, de J. B., ii. c. 22, § 11 ; Pufendorf, de jure Nat. iii. c. §§ 1, 2, 
 Ti. c. 3, § 2. 
 
 " This restriction is explained by the provisions with reference to the pur- 
 suit of runaway slaves. 
 
 7 Story, p. 135, Note ad Jin. [Slavery is no longer recognised in the 
 United States.] 
 
192 [§ 48. 
 
 (3.) Civil Death. 
 §48. 
 
 We have already {supra § 45) spoken of civil death. It 
 follo-ws, from the generaF principles as to the international 
 appHcation of rules that deal with the legal capacity of 
 persons, that a man who is declared to be civilly dead in one 
 country, is not recognised as civilly dead in another country 
 where the institution of civil death is not known ; most 
 authors recognise this rule as correct.^ Even although the 
 institution of civil death is in. some cases recognised in the 
 country in question, civil death which has been inflicted in 
 another State can only come into operation under the con- 
 ditions which are required by the laws of the State which is 
 asked to recognise it, and, in so far as it rests upon a criminal 
 sentence, its operation depends upon the effect which is 
 ascribed to a criminal sentence passed in a foreign country — 
 a question which must first seek its solution in criminal 
 law.^ The only doubt seems to be, whether the absolute in- 
 capacity of inheritance attaching to a member of a religious 
 order is to be recognised when a succession opens to him in 
 a foreign country. In accordance with what we have said 
 before, and on strict grounds, we must answer that it should 
 
 ^ See, e.g., Giinther, iv. p. 728 ; Mittermaier, i. § 30, note 13 ; Oppenheim, 
 p. 393 ; Wachter, ii. p. 184 ; Story, § 92. (Mailher de Chassat, No. 172, 
 would haye civil death, where it depends upon a religious vow, recognised in 
 a foreign country, but would determine its effect in accordance with the laws 
 recognised in the foreign State in question.) Savigny,§ 349 and § 365 ; Guthrie, 
 pp. 80 and 168 ; BouUenois certainly takes a different view, i. p. 64. See, too, P. 
 Voet, de Stat. iv. 3, § 19, "Si alicm interdictum est arte vel negotiatione sententia 
 nonvalebit extra territoriwm Principis." Amongmore modern writers,Schaffner 
 (p. 47) believes that it is impossible to establish any general rule as to the 
 international validity of civil death. As to the non-recognition in foreign 
 countries of acts done by a person civilly dead in the country where he has 
 incurred this sentence, see supra, § 45, and Story, § 92. 
 
 ' On the institution of civil death as recognised in Prance, see Savigny, 
 System ii. p. 151. The question as to whether the marriage of a criminal 
 who has been condemned in Prance, and by the laws of that country is civilly 
 dead, is to be held as dissolved in a country which does not know civil death, 
 is determined by the law of the domicile. There must always be an enquiry as 
 to what law would otherwise determine the question. Of. the general prin- 
 ciple laid down, supra, § 45. 
 
§§48,49.] 193 
 
 be: we may assume, since subjection to the regulations of 
 sucb orders is voluntary, tbat we have an implied renuncia- 
 tion of tbe succession (c£ Hert. iv. § IS ; Savigny, § 365, 
 note a; Guthrie, p. 167). Such a case as this, in Savigny's 
 opinion, does not belong to the ordinary class of incapacities 
 to act.^ 
 
 (4.) Loss OF Civil Honoue — Infamy. 
 § 49. 
 
 The enjoyment of social reputation or honour is an essential 
 condition of a number of different rights, which belong 
 partly to pubHc and partly to private law. Legal capacity ^ 
 is diminished if this is lost. It follows, therefore, 
 according to the general principles we have assumed, that we 
 can never fuEy recognise a loss of civil honour, for the simple 
 reason that a person is laid under it by some foreign country : 
 we must ask, whether the facts on which it proceeds are 
 calculated to work a diminution or loss of the reputation of 
 a citizen by our laws ? It might happen, if we are to 
 recognise the sentence of a foreign court making its object 
 infamous, that a sentence of infamy imposed in a foreign 
 country should really be put in force among ourselves, if, by 
 our law, infamy is the result of a sentence for certain crimes; 
 and if, by undergoing certain degrading punishments, the loss 
 of reputation is incurred in our country, then to have suffered 
 punishment in a foreign country under similar conditions 
 must also infer the withdrawal of the privilege of exercising 
 these rights among us. In this sense the more modern 
 authors express themselves.^ Although most of the older 
 
 ' [In an action brought before the Appeal Court at Turin on 12th August 
 1879, to vindicate the rights of the manufacturers of Chartreuse, and protect 
 their trade-mark, it was pleaded that the Italian law of 7th Feb. 1866, which 
 denies to religious houses or orders a persona standi injudicio, must be applied 
 to the pursuers, a religious house in France. The plea was not determined, 
 the convent suing in name of an agent or manager, whose title was sustained.] 
 
 1 Gerber, § 39. 
 
 2 Giinther, p. 731 ; Kori, iiL p. 14 ; Wachter, iL p. 182 ; Mittermaier, § 30 ; 
 Thol, Introduction, § 78, note 5 ; Cf., too, Berner, p. 166 ; Baden Criminal 
 Code,, § 9; Story, § 91 ; and infra, § 146. 
 
 O 
 
194 [§§49,50. 
 
 authors maintain the universal validity of the lex do7nicilii,^this 
 is to be accounted for, in the first place, by the indistinct con- 
 ceptions which these writers have of the laws of status, as they 
 term them, which were supposed to stamp inherent qualities 
 upon every person ; and in the second place, by the fact that 
 the question whether a sentence passed by the judex domi- 
 cilii in a foreign country had any effect upon the reputation of 
 the convict, was not properly separated from the question 
 whether a loss of reputation was to be recognised in our State, 
 upon the ground that it existed according to the law of the 
 domicile of the person concerned. Both P. and J. Voet, 
 however, declare in favour of the view we have taken.* 
 
 The special question, whether a restitution of status be- 
 stowed by the sovereign, in virtue of the prerogative of pardon, 
 is to be respected in a foreign country,^ depends upon the 
 circumstances under which a pardon bestowed in one State is 
 to be recognised in another.^ 
 
 (5.) Limitation of Capacity on the geound of Keligious 
 
 Belief. 
 
 § 50. 
 
 It is now undisputed that limitations of this kind, recog- 
 nised in one State, wiU not hold good in another.^ 
 
 ^E.g., Bald Ubald in L. 1, 0. de S. Trin., No. 100 ; Bnrgundus, iii. 12; 
 BouMer, cap. 24, Nos. 134-138 ; Boullenois, ii. p. 19. Baldus, however, 
 makes an exception of tlie case where the poena affects only an actus extrin- 
 secus, e g., appearance before a court of law ; and Bouhier gives the opinion 
 mentioned above, with the qualification that infamy resulting from a criminal 
 sentence will only then be generally recognised if it is in accordance with 
 Jus commune. 
 
 *P. Voet, iv. 3, No. 18 ; J. Voet, de Stat., § 7. 
 
 5 Hommel, Khaps. Queest, vol. ii., obs. 409, No. 3, " Famm restitutus a 
 principe domicilii omnino est restitutus." 
 
 « Of. vnfra, § 143. 
 
 1 The opposite assumption would have this effect, that if in one country 
 Protestants could acquire no landed property, the acquisition of hinded 
 property would be forbidden to the inhabitants of that country, even in a 
 Protestant State ; Savigny, §§ 349, 365 ; Story, §§ 91, 92 ; Wachter, ii. p. 173. 
 
§51.] 195 
 
 (6.) Distinctions of Rank. 
 § 51. 
 
 Special privileges of rank or position are determined, not 
 by the lex domicilii of the person concerned, but by the law 
 of the State to which the legal relation which may be in 
 question otherwise belongs.-^ (For the foundation of this 
 rule, see supra, § 45.) The only doubt on the subject seems 
 to arise in the case of the privileges attaching to what is 
 called nobility.^ 
 
 Some authors hold the privileges of nobility as confined 
 strictly to the territory in which they have their origin, either 
 by descent or by grant ; others make a distinction between 
 nobility which is enjoyed by virtue of descent and new 
 nobility conferred by the sovereign, recognising the first only 
 as universally valid.^ 
 
 Lastly, a large number of eminent authors consider nobility 
 as valid everywhere, whether it rests on descent or oh grant, 
 and make no exception from the rule unless the sovereign 
 should grant nobility to one who is not his subject.* 
 
 In fact, as Savigny remarks (§ 365 ; Guthrie, p. 168), no 
 general rule can be laid down. It depends upon the import of 
 the rules of law establishing the privileges of nobility whether 
 these privileges are to be conceded to native nobles only, or to 
 foreigners also. Where the only consequences of these rules is 
 to confer distinguishing marks of honour, then, by a general 
 international usage, which certainly cannot be disputed now-a- 
 days,^ these are conceded to foreign nobles also.^ Other special 
 
 iBeseler, i. p. 151 ; Wachter, ii. p. 172, et seq. ; Keyscher, § 82. 
 
 2Hert, iv. § 16; Alef, No. 41 ; Casaregis, disc. 43, No. 17. 
 
 3 P. Voet, de Stat. iv. 3, § 16 ; J. Voet, Comm. i. 5, § 3 ; Seger, p. 20 ; 
 Duplessis, ii. p. 456, " d, I'igard des itrangers de race hwr noblesse est un droit 
 de sang qui les suit pa/rtont.' 
 
 * Henr. de Oocceji, t. § 9 ; Boullenois, i. p. 67 ; Bouhier, chap. 24, No. 134 ; 
 Titius, i. c. 10, § 26 ; Gunther, p. 130 ; Walter, § 45 ; Kenaud, i. § 42, i. 
 
 5 Cf. Martens, § 98. 
 
 8 An exception must be made when a sovereign confers nobility on one 
 who is not his subject. Nobility is intended in its egsence to determine the 
 permanent social relations of a person, and these in relation to his fellow- 
 subjects ; it can, therefore, only be conferred upon subjects of the State, 
 
196 [i 51,52. 
 
 rights, on the other hand, can only be conceded to native nobi- 
 lity.'' We cannot carry the distinction between hereditary and 
 created nobility with us in this theory, and there is no theo- 
 retical ground for its adoption : one as well as the other 
 rests on the laws of the State.^ As far as Germany is con- 
 cerned, it may be noted that patents of nobiUty which 
 have existed since the days of the empire, or which were 
 conferred by the sovereign authority of the empire, are 
 recognised in aU German States, not merely from reasons of 
 international law, but because they had been recognised by 
 the older sovereign authority of these countries. 
 
 When one passes as an emigrant into another State, nobi- 
 lity conferred in the former domicile will be considered to be 
 tacitly recognised f but if nobility is not recognised at all in 
 the new domicile, it is held, according to the reasons already 
 adduced (note 8), to be lost.-^"' ^^ 
 
 (7.) Incapacity to Act on Accottnt of Minoeity. 
 
 §52. 
 
 We have already shown why this kind of incapacity to 
 act must be universally held to be regulated by the lex domi- 
 cilii} According to what we have already laid down, it is 
 
 ' Thbl, § 78, note 6 : "He who gets his nobility from us has such and 
 such lights ; he who gets it from a foreign power has such and such rights : 
 the latter has not in our country the rights called nobility." 
 
 ' Giinther goes too far in asserting that nobility cannot be withdrawn from 
 a person by any State, because it is recognised by the collective monarchical 
 States of Christian and European civilisation. Nobility really depends on 
 the law of the domicile of the person. This is the necessary condition of the 
 recognition of it in other States, and the latter must cease to recognise it if the 
 former withdraws its privileges. 
 
 » Thbl : " A foreign grant of nobility recognised by us gives all the rights 
 called nobility in our country." 
 
 w Eenaud, i. § 42, note 3. 
 
 " Older authors deal with the rights of illegitimate and legitimated 
 children in connection with the question of legal capacity. By modern legal 
 conceptions, which, as a rule, regard legitimate and illegitimate childreli as 
 of the same legal capacity, this subject belongs te Family Law. Cf. infra, 
 §102. 
 
 1 Molinaeus in L., 1 C. de S. Trin. ; Hnber, § 12 ; Argentr^ No. 7 ; 
 Hert, iv. § 11 ; Kodenburg, ii. §§ 1, 2 ; Abraham a Wesel, ad Nov. Const. 
 
§ 52.] 197 
 
 the lex domicilii, too, which decides whether, and if so, 
 what partictJar acts inter vivos,'' may as an exception 
 be done by minors.^ It is, therefore, only now necessary 
 to discuss some peculiarities in regard to which doubt 
 may arise. 
 
 (1.) By systems of territorial law it is in the power of the 
 sovereign to confer the rights of majority upon a minor 
 either in fuU or in part. This grant of majority is made in 
 virtue of the laws of that country, although it requires a 
 special provision of the authority of the State, and it has there- 
 fore the force of law ; such a case therefore is to be regarded 
 in the same light as if the lex domicilii appointed an earlier 
 
 Ultraj., art 13, No. 25 ; Henr. de Cocoeji, v. 3 ; Bouhier, chap, xxv., No. 1 ; 
 Boullenois, i. pp. 53, 54 ; Merlin, E^p. Majority, § 5 ; Hofseker, de eff. § 24 ; 
 Eicci, p. 522 ; Hauss, p. 27 ; Wheaton, § 84, p. 117 ; Walter, § 45 ; Gunther, 
 p. 727 ; Kliiber, § 55 ; Thol, §§ 81, 87 ; Eenaud, i. 42-4 ; Gerber, § 32'; 
 Schaffner, pp. 47, 48 ; Savigny, § 361 ; Fcelix, i., § 33, p. 85 ; Mass6, ii. p. 84 ; 
 J. Voet seems to hesitate ; cf. Comm., 4. 1, § 29, with 4.4, § 8. We have already 
 (§ 7) mentioned the remarkable distinction taken by Burgundus, i. § 6. 
 Grand, No. 482, 83, proposes that the lex rei sites should rule in cases as to 
 the disposition of real property. On the whole of this subject, however, he 
 proceeds very arbitrarily, and (506) lays down the proposition that the 
 foreigner who contracts in France subjects himself, in so far as his capacity 
 to act is concerned, to the laws of France. It is, however, obvious, that it 
 cannot be in the power of any person to determine his own legal capacity. 
 English and American practice, on the other hand — probably on the grounds 
 of expediency, which have already been refuted — ^pronounce for the lex loci 
 contractus (Story, § 182, § 103). Burge, i. p. 125, approves of this, and allows 
 the kx rei sUce to rule in questions as to the disposal of real property, be- 
 cause, by his view, it would encroach upon the sovereign rights of the indi- 
 vidual States if the lex loci contractus were taken as the rule for these cases 
 also (p. 120). According to Burge, i. p. 133, the lex loci contractus is to 
 decide if the person is by it a minor, but is by the law of his domicile of 
 full age. " For it would not be reasonable that two different laws should 
 be applied to one and the same contract," which is Barge's reason, must be 
 rejected as a petitio pri/iuApi/i. Burge, like many other authors, confuses the 
 rules of law on this subject with those which deal with the capacity to exe- 
 cute testaments, to enter on marriage, &c. Grotius, de J. B. ii. c. 11, § 2, 
 in the same way makes the Ux loci contractus rule. He argues from the posi* 
 tion that the foreigner becomes a suhdMus tempora/riu^ at the seat of the 
 contract. [Cf. supra, note 9, p. 186.] 
 
 ' Mortis causa deeds are not included. Cf. supra, § 44, Note 9. 
 
 3 On the distinction drawn by Wachter between a person's attributes and 
 their operation, see supra, § 44, Note 7. 
 
198 [§ 52: 
 
 age as the initial age of majority for all its subjects* From 
 this it follows that majority can be conferred by the sovereign 
 on none but his own subjects.^ 
 
 (2.) The capacity of a person to act is settled, as we have 
 seen, by the laws that are recognised at the place of the 
 domicile which that person had at the time of the transaction 
 which is in question. This rule appears to drive us to the con- 
 clusion we have already adopted (supra, § 46, note 9), in the 
 case of one who has attaiaed majority and changes his domi- 
 cile to a place where a more advanced age than that attained 
 by him is required for majority ; he becomes a minor once 
 more. Some authors have expressly drawn this conclusion.^ 
 Besides those who regard majority once attained as persistent, 
 in conformity with the general principle assumed by them, 
 to the effect that legal capacity is determined by the laws of 
 the first domicile and cannot be altered, many who hold an 
 opposite view of the general principle make an exception in 
 this case, either on grounds of expediency,'' which obviously 
 recommend such an exception, or because they regard the 
 majority conferred by the country of the first domicUe as a 
 vested right, and not to be lost by any subsequent change of 
 domicile.* 
 
 Apart from considerations of expediency, to which no force 
 can be given, if an accurate legal view contradicts their con- 
 clusions, we must recognise, that, as we saw before, and 
 as Savigny elsewhere admits, the theory of vested rights must 
 be thrown out of the system of international law, since its 
 
 * Hert, iv. § 11 ; Hommel Rhaps, vol. ii. obs. 409 ; Burgundus, i. 12. The 
 Eoyal Chancellory of Hanover at OeUe, on 17th January, 1820, removed a 
 guardian because of a venia <etatis granted in another country (Biilow and 
 Hagemann, Discussions, vol. viL No. 80, p. 244). Hagemann approves. Schaff- 
 ner, p. 48. 
 
 ° BouUenoisy L p. 55. 
 
 * Hert, iv. § 12, note 5 ; Walter, § 42 ; Gunther, p. 727. So, too, a judgment 
 of the Supreme Court of Appeal at Celle, on 14th October, 1831, in affirmance 
 of a decision of the Chancellory of Hanover. Biilow & Hagemann, vol. x. 
 p. 98. Of course, even according to this theory, obligations undertaten at the 
 period of the earlier domicile are not invalidated by the change. 
 
 ' Boullenois, ii. p. 12. 
 
 8 Especially Savigny, § 365 ; Guthrie, p. 170. 
 
§ 52.] 199 
 
 justification is rested on a circle of reasoniag. This capacity 
 to act does not belong to the category of vested rights ra the 
 ordinary sense.^ 
 
 Savigny thinks that his view receives special confirmation 
 by comparing it with the case of venia cetatis, acquired 
 specially at the place of the earlier domicUe. The conse- 
 quences of such a grant by the sovereign cannot, he says, be 
 afterwards withdrawn, and it would be unnatural and arbi- 
 trary to attribute less force to the majority established by the 
 law of the earlier domicile than to that established by grant. 
 This last argument rests also upon a circle of reasoning. 
 The special grant of the rights of majority is not any more, 
 or in any higher sense, a vested right, than the statutory 
 majority. If the latter were not recognised at the seat of the 
 new domicile, neither would the venia cetatis be recognised. 
 I believe, however, that I may confess I have arrived at the 
 same result i" on strictly legal grounds. It is necessary that 
 a person should have, in order to an independent and volun- 
 tary acquisition of a domicile, capacity to act, and that both 
 by the law of the domicile which he has and by that of the 
 country to which he intends to remove ; the former, that he 
 may be able to undo the tie which biads him to his native 
 country ; the latter, that he may be in a position to enter 
 into the new allegiance. The authority of the State which 
 permits one who is minor by her laws to establish his domicile 
 independently in her territory, silently recognises the capacity 
 of this person to act ; she silently concedes majority, if she per- 
 mits any one who is not yet major by her laws to estabhsh 
 his abode independently in her territory. To justify this 
 exception there is no need to appeal to the considerations of 
 expediency which we have mentioned ; they are quite inad- 
 missible as arguments. 
 
 (As to the ahenation of the real property of minors, which 
 some authors, who in other cases allow the lex domicilvi to 
 decide questions of capacity to act, refer to the determination 
 of the lex rei sitce, see i/nfra Law of Guardianship, § 106.) ^^ 
 
 ' Unger, pp. 130, 131. 
 
 1" This result is recognised in the practice of Prussia. Koch, Comment on § 23 
 of the introduction to the Allgem. Landrecht. Bornemann, i. p. 53, note 1. 
 1' The law of the restitution of minors is discussed, infra, § 56. 
 
•200 [§ 53. 
 
 (8.) CUBATOEY OF WoMEN. 
 
 §53. 
 
 The special curatory of women after majority, whicli we still 
 find in some legal systems, belongs, in accordance with the 
 general principles laid down by us, to the class of incapacities 
 to act, if the curator supplements the will of the woman, and 
 so may refuse his consent to the deed in question, while the 
 woman, without this consent at least, cannot in any way 
 make a complete disposition of the whole or of any part of her 
 estate inter vivos. If the curator merely advises the woman 
 in all her more important legal transactions, or in certain 
 specified transactions, then this curatory is only a formal 
 reqtiisite which exists for the protection of the woman, and is 
 subject to the rule " Locus regit actum ; " if the woman can 
 dispose of her whole estate inter vivos, and is only disabled 
 from certain legal transactions without the consent of her 
 curator, then this curatory belongs to the class of incapacities 
 which some call particular, which are more rightly termed 
 apparent. The differences of opinion that prevail,^ as to 
 whether the necessity of the assistance of a curator is to be 
 determined by the law of the domicile of the woman, or by 
 the lex loci contractus, are explained by the varieties of such 
 curatory corresponding to the categories given above; these were 
 in the contemplation of the authors who treat of the subject, 
 and from some one of them they constructed a general rule. 
 
 1 The universal Talidity of the lex domicilii is supported by Curtius Bochus, 
 destatutis 9, § 26 ; BouUenois, i. pp. 437-39 ; Gunther, p. 728 ; Foelix, i. § 
 89, p. 206. (This deliverance is sound so far as the requirement of the 
 Autorisation Maritale existing in the French law is concerned, C. civ. art. 
 217). The authority of the lex lei contractus is supported by Henr. de Ooooeji, 
 vii. 10 ; D. Mevius in Jus. Lub. proleg. qu. 4, § 17, because the assistance of 
 a curator is a mere formality attaching to the legal act — Bicci, p. 537; 
 Witzendorf, de statutis civitatatum provincialium, xx. No. 2 ; Alderanus 
 Masoardus, concl. 6, No. 111. Wachter ii. p. 180, although he considers that 
 to require the advice or consent of a curator is to limit the capacity of acting 
 (note 302), reaches the result, that we must determine the capacity of women 
 according to our own law, if they deal in our country ; this view springs from 
 the distinction between the legal qualities of a person and their operation, to 
 which we have referred. On the other hand, see Savigny, § 362 ; Guthrie, 
 p 151, who purposes apparently to apply the lex domicilii everywhere. 
 
§ 53.] 201 
 
 In more modern times sucli curatory exists only in the case of 
 married women, whose curator is their husband (Gerber, § 
 245-46), and it has the effect of making the woman altogether 
 or partly incapable of acting.^ If the advice of a curator is 
 required by the law of the place of the contract, but is not 
 required by the law of the woman's domicile, then a contract 
 concluded without such adyice is not invalid for this reason, 
 that the rule " Locus regit actum, " makes the observance of 
 the forms required at the place of the contracts, as weU as 
 other forms, optional to the parties ; but still, if the forms of 
 the domicile of the parties, and not those of the place of the 
 contract, are observed, there must, as in all such cases, be 
 circumstances to show the intention of the woman to enter 
 upon a binding contract, and, if the curatory of women 
 exists, the judge may, in accordance with his own law, sist 
 process until a curator be appointed, because the woman has 
 not the capacity of suing for herself.^ 
 
 2 Merlin's declaration, Edp. Vo., Autorisation Maritale — that the provisions 
 of certain French eoviumes, to the effect that a married woman can only 
 validly contract with the consent of her husband, constitute a personal law 
 which must be administered by the laws of her domicile — is therefore correct. 
 
 3 Mittermaier, no doubt, has this case in view, Archiv. vol. 13, p. 305, 
 when he proposes that the law recognised at the seat of the tribunal should 
 determine as to the necessity of such curatory. Judgment of the Supreme 
 Court of Appeal at Jena, 17th February, 1827 (Seuffert 4, p. 374): "The 
 curatory of women in Saxony was originally merely a curatory ad litem 
 (Procedure in Saxony, i. 43, 44, 46, 47 ; ii. 63) : there is no such thing as an 
 incapacity in unmarried women to dispose of their estate, and for extra- 
 judicial contracts they do not require a curator. The curator required for 
 proceedings in court is a mere adviser, who may be dismissed at pleasure, 
 and whose advice is a mere formality required to validate the transaction. 
 Such an external solemnity prescribed for judicial business is plainly to be 
 judged by the law of the place where the judicial contract was concluded, 
 
 ■ and cannot be required in places where it is not prescribed. The full 
 capacity of a woman who is not subject to curatory by the law of her 
 domicile must be recognised in every Saxon court, even without the advice 
 of a curator, and in the same way a woman who by the law of her domicile 
 is only to a certain extent fettered by the necessity of a curator's concurrence 
 can validly contract, where such curatory does not exist." Cf., too, the 
 decision of the same court, reported by Seuffert, 13, p. 255, of date 15th 
 December, 1831. 
 
202 [Note P, § 54. 
 
 Fote F. 
 
 [The law of England as to the capacity of women, i.e., 
 married women, belonging to a foreign country, to contract 
 is not settled. Westlake holds that it must be determined 
 by the same considerations as determine the same question 
 in the case of minors ; and as we have seen (supra, note 6, 
 § 45), the tendency of more recent decisions is to refer these 
 cases to the law of the domicile, or the personal law, for 
 determination. 
 
 The doctrine of Scots law is not reconcilable with the 
 principles laid down by the author, nor is it coincident with 
 its own rule as to the case of minors ; by the law of Scotland 
 the personal obligation of a married woman is nuU ; her in- 
 capacity is a case of general incapacity ; but yet the rule with 
 regard to the obligations of the wife of a Scotsman in a foreign 
 country, or of the wife of a foreigner in this country, is that these 
 are determined by the lex loci contractus; although the incapa- 
 city of a married woman in Scotland is perfect, yet if it is not 
 attached to her acts by the law of the place where these acts 
 are done, she wiU be bound thereby (Fraser on husband and 
 wife, p. 1317). "We have seen (p. 186) that the general rule 
 in the case of minority is that the lex domicilvi will rule. 
 
 In America, the rule laid down by Parsons (2. p. 600) is 
 that " it must depend much on the circumstances ; " i.e., the 
 length of the stay of the foreigner in the cotmtry, and the 
 quality of the contracts, what law shall rule.] 
 
 (9.) Incapacitt of Prodigals. 
 
 §54. 
 
 The judicial decree by which a person, in consequence of 
 his prodigal life, is declared incapable of acting, prescribes, 
 without doubt, a permanent protective care for him, and 
 receives effect all over the world in accordance with the 
 laws of his domicile. This view has been adopted by authors 
 on the continent of Europe almost without an exception.^ 
 
 ^ Alb. Brunus, de Stat. x. § 57 ; Barthol. de Salicetoin L. i. 0. de S. Trin. 
 No. 14; Alderanus Mascardus, condl. 6, No. 20; Argentr. No. 7; Bur- 
 
§54] 203 
 
 It has, no doubt, been objected that interdiction is really 
 a police regulation, although the decree is pronounced by 
 the courts, and accordingly must be limited in its operation 
 to the territory to which the person placed under curatory 
 belongs.^ But it is in no other sense a police regulation than any 
 other kind of guardianship. There is no ground for distinction 
 in this respect in the fact that it is only found in isolated cases, 
 while guardianship is a thing that occurs more frequently. 
 
 The contention that interdiction, resting, as it does, upon 
 the sentence of a foreign judge, can only receive effect under 
 the same conditions as are required for the appHcation of a 
 foreign decree, is more plausible.* But it is no act of con- 
 tentious jurisdiction to place a person under curatory, although 
 it may be that in some countries, in order to give the judicial 
 cognition more completeness, and to insure the person against 
 arbitrary and groundless attempts upon his liberty, the cura- 
 tory is issued under the form of a litigious proceeding be- 
 tween different parties, as is required by the law of France.* 
 
 What the judge here adjudicates upon is not a relation of 
 private law between different individuals ; he has simply to 
 pronounce a protective order for the iuterest of that person who 
 is about to be placed under curatory,^ in which, no doubt. 
 
 gundus, iii. 12; Eodenburg, ii. 1, § 4; Huber, § 12 (vouching for the practice 
 on this point) ; P. Voet, iv. 3, No. 17 ; Abraham a Wesel. ad Nov. Const. 
 Ultraj. art. 13, No. 26 ; Casaregis, disc. 43, No. 16 ; Hommel Khaps. vol. ii. 
 Obs. 409, No. 3; Nic. Everhardi, jun.. Cons. vol. ii. Cons. 28, No. 82; 
 D'Aguesseau CEuvres, iv.fp. 638; BouUenois, i. p. 603; Mass^ ii p. 87; 
 Foelix, i. p. 207. 
 
 2 Giinther, p. 729. 
 
 ' We have already remarked {supra § 45, note 6) that the older authorities, 
 partly for this very reason, justified the universal validity of the lex dom/icilii 
 in questions of incapacity to act. 
 
 * Code Civil, art. 513 et seq., art. 489 et seq. 
 
 ^ French jurists have not so much regard for the object of the procedure 
 as for the procedure itself, which does not affect the nature of the decree. 
 So Foelix, ii. p. 188. But the question whether we have to deal with an 
 act of voluntary or contentious jurisdiction must be determined on logical 
 grounds, and therefore on grounds that are applicable to every territorial 
 system of law. In French law itself, the provisions of article 491 — which 
 makes it the duty of the administrative authority of the state, as a subsidiary 
 resource, to move for interdiction — are evidence that to place a person under 
 curatory is no contentious proceeding of private law. 
 
204 [§ 54. 
 
 others may be interested, and with reference to which they 
 are entitled to make suggestions.® 
 
 If we are to refuse recognition altogether to foreign 
 judgments, then, in a strict sense, a declaration of prodigality 
 which has been made at the domicile of any person must 
 be held to be of no effect,^ as regards the legal character 
 of the acts which have been entered upon at the domicile of 
 the person under curatory, if they should afterwards come to 
 be matter of dispute before a foreign court.* Most authors 
 and courts of law, in their judgments, attempt to get rid of 
 this conclusion by asserting that they find in the sentence of 
 the foreign judge a 'proof of the existence of the condition 
 that justifies a withdrawal of capacity sufficient to meet their 
 difficulties.^ 
 
 This theory, however, is only applicable in the case of the 
 natural incapacity of lunatics, in which case the sentence of 
 the judge does not constitute the incapacity, as in the case 
 of the interdiction of a prodigal, but is merely a declaration 
 of an incapacity to act, which is already in existence and 
 in operation, made for the security of commerce.-^" 
 
 * It only needs such publication as is required at the domicile of the 
 person to be interdicted. Fcelix, ii. p. 32. 
 
 ' By French law, the judgments of foreign courts are, as a rule, disregarded. 
 
 * This result, which is at variance with all legal instinct (cf. supra, § 44, 
 note 3, Heffter's words quoted there), is certainly produced to some extent 
 by the modification suggested by Gand upon the decision to be pronounced 
 (No. 311), according as the suit is conducted by foreigners only, or by 
 foreigners and French subjects in France. But will it alter the rights of 
 parties if one of them should happen to be succeeded by a French subject as 
 his heir 1 
 
 9 Fcelix, ii. § 369, p. 113, et seq. A. judgment of the court at Douai, of 5th 
 May, 1836, affirming that of the inferior court (at Valenciennes, reported by 
 Sirey, 36, 1. p. 6Y3, declares that the representatiye of the bankrupt who has 
 been nominated in a foreign country has a good title to act in France 
 (" considArant que la qualiU du demandeur unefois dtablie, le titre qu'il prieente 
 dtant authentique"). On the other hand, a judgment of the Court of Cassa- 
 tion at Paris, on 29th August, 1826, reported in Sirey, 26, 2, p. 428, lays 
 down that a decree of disability pronounced by a foreign court can only be 
 recognised in France after it has been declared to be such as may be carried 
 out there. 
 
 w So, too, by the Code Civ. Art. 513 : " Les actes antirieurs b, I'interdiction 
 pourront Ure annvXUs si la cause de Vinterdiclion existait notoirement k Vipoque 
 oil ces actes ont itifaMs." 
 
§ 54, Note G.] 205 
 
 The incapacity of the prodigal has often been ranked with 
 the loss of disposing power which falls upon a bankrupt. 
 This is, however, incorrect. The bankrupt is not incapable 
 of legal acts ; he can certainly enter upon contracts, although 
 the other party does not thereby acquire any rights against 
 the sequestrated estate ; and by Eoman law he may enter 
 upon a succession that opens to him. The curatory that 
 exists in bankruptcy is also not merely for the benefit of the 
 bankrupt, but has for its end to protect the estate for the 
 creditors. ^^ 
 
 This distinction wUl be made clearer in discussing bank- 
 ruptcy. 
 
 NoU G. 
 
 [" Certainly, in this country no effect would be given to 
 any legal incapacity merely dependent on the decrees of a 
 foreign tribunal until those decrees were here produced. 
 When produced, they might be received as proof of in- 
 
 ^■^ The operation of a declaration of prodigality in a foreign country was 
 discussed in the decision on 16th January, 1836, by the Cour Royale, at 
 Paris, on appeal in the suit of the Duke of Cambridge — ^who had been nomi- 
 nated curator to Charles, Duke of Brunswick, by the joint nomination of the 
 King of England and William, Duke of Brunswick, by virtue of their right 
 as agnates, and in respect of their relative's prodigality — against various 
 persons in France, in whose hands Duke Charles had placed sums of 
 money. Counsel for the Duke of Cambridge contended (1) that the personal 
 statute now in question was universally valid ; (2) that the foreign deliverance 
 by the family had the effect of a satisfactory proof of the incapacity of Duke 
 Charles to manage his own property. On the other side, it was answered — 
 (1.) Foreign judgments are of no effect in France. (2.) It did not foUow from 
 the 3rd Article of the Code Civil that the datm and legal capacity of 
 foreigners were to be determined by the law of their domicile ; on the contrary, 
 another rule was recognised if, as in the present case, the foreign law was at 
 variance with the general principles of French legislation, in respect that the 
 forms prescribed by the Code Civil for procedure in interdiction, so as to 
 avoid abuses, had not been observed. (3.) The whole proceeding had a mere 
 political object — to prevent Duke Charles from entering on possession of his 
 dominions, and therefore, like a political statute declaring emigrants to be 
 civilly dead, could not be enforced in a foreign country. 
 
 The Tribunal of the Seine adopted the reasoning of Dnke Charles's counsel, 
 and the Court of Paris affirmed the judgment on 16th January, 1836, because 
 the question was as to a political rule which had no operation in a foreign 
 country. Cf. Sirey, 36, 2, pp. 70-78 ; Gand, No. 512. 
 
206 [Mte G, § 55. 
 
 capacity till redargued. But a foreign interdiction, even 
 when properly vouched here, can hardly have any effect in 
 this country till publication accol:ding to the forms of Scots 
 law." — Eraser, "Parent and Child," p. 588. The cases m 
 which Enghsh and foreign courts have exercised their juris- 
 diction in the interdiction of foreigners resident but not 
 domiciled in the territory of the court, or in the adminis- 
 tration of their affairs in case of lunacy, are noted below, 
 note on § 106.] 
 
 (10.) "Special" Incapacities. 
 § 55. 
 
 We have already attempted to show that cases of this 
 kind are not to be determined by the lex domicilii of the 
 person, but by the law to which the transaction in question 
 is otherwise subject. To estabUsh this theory more firmly, 
 we shall examine the opinions of the authorities upon the 
 most important questions of this class, but first we must lay 
 stress upon the following Umitation of the theory itself. 
 
 Although there is no real incapacity to act in any of the 
 cases of this class, yet we must admit that the provisions of 
 law concerned were enacted to ensure to particular persons 
 a protection against imposition. This protection might, no 
 doubt, be extended to all persons trading in the country, but 
 in the case of persons who had a mere temporary residence 
 there, it would obviously fall far short of attaining its purpose, 
 and comphcate in the highest degree the legal relations of 
 these persons, who would find themselves to their own pre- 
 judice at one time subject to these restrictions, and at another 
 free from them. For these reasons the rules of law, by 
 which particular classes of persons are excluded from various 
 legal acts, cannot be extended to foreigners, who are capable 
 of executing these acts by the laws of their own country. 
 We may add this further reason. The State to which 
 these foreigners as regards their personaUty permanently 
 belong, does not regard these protective restrictions as 
 necessary ; still less can a foreign State,-' which has no such 
 
 1 The following authors expressly pronounce in favour of the universal 
 validity of the lex domicilii in questions of '' special" incapacity : — Bouhier, 
 
§ 55.] 207 
 
 permanent care for foreigners, hold itself to be in a position 
 to apply such protective legislation to them.^ 
 
 (1.) As regards the limitations put upon women, and 
 specially upon wives, in Roman law by the 8. Cons. Velleianvmv, 
 the " Authentica si qua mulier,"^ the suretyship of a woman 
 is, as a rule null, unless a particular form,, viz., the execution 
 of a pubUc deed subscribed by three witnesses, be observed ; 
 besides that, it may be defeated by pleading the S. Cons. Vellei- 
 anum as an exception ; and in all cases, finally, the suretyship 
 of a wife undertaken for her husband is nuU. In practice, 
 however, this is so far modified that a cautionary obligation, 
 which was undertaken or ratified on oath by a woman, after 
 she had been instructed by a person learned in the law as to 
 its consequences (and, in the case of a married woman un- 
 dertaking such an obligation for her husband in his absence), 
 was held vahd.* According to the Roman law of modem 
 times the matter is reduced to this, — since a woman by ob- 
 serving the forms introduced by practice and the Canon Law, 
 
 cap. 22, No. 131 ; Thol., § 78 ; Savigny, § 364 ; linger, p. 163 ; Demangeat, 
 i. p. 204, note A ; Foelix approves (i. p. 43) of the restriction of the term. 
 statut personnel to rules of ]a,w that affect the whole status of a person, but 
 thereafter he proceeds in a way very inconsistent with this. Of. Demangeat, 
 ut supra.) Against the universal validity of the lex domiciUi : — Pardessus, 
 No. 1483 ; Gand, No. 295, ad fin. y Mass6, p. 81, No. 164 ; Wheaton, § 85, 
 p. 118. 
 
 From the great variety of views it follows that there is no general law of 
 custom, and therefore logical grounds only can determine the question, 
 
 2 Savign/s assertion, however, that the protective measures of each law- 
 giver are always limited in their effects to his own subjects, § 364 (Guthrie, 
 p. 164), goes too far. Cf. what is said infra, § 106, as to provisional cura- 
 tories. 
 
 ' There are special declarations as to the suretyship of women by Duplessis, 
 Consult. 26, CEuvres, ii. p. 156 (he is for the universal validity of the lex 
 domieilU) ; Bouhier, cap. 27, Nos. 5, 6 ; Boullenois, i. p. 187 ; Seuffert, 
 Oomm. i. p. 248, note 42 ; "Walter, § 45 ; Thol, § 85, note 7 ; Foelix, i. p. 
 204, and note thereon by Demangeat (as the latter remarks, Poelix's argument 
 is inconsistent). It may be observed that many of the older writers, such as 
 Bouhier, confuse the Senai/us Consvltwrn Vdleia/rvwm with entirely different 
 restrictions of German law upon the capacity of a wife. 
 
 * Of. Puchta, Pandect, § 407, The Hanoverian statute of 28th Dec. 1821, 
 for instance, requires for the execution of the cautionary obligation upon 
 oath, that the woman should be instructed by the court, and that the obliga- 
 tion should be published in the minutes of the court. 
 
208 [§ 55. 
 
 can always become surety, — that special protective forms exist 
 for women with reference to the assumption of cautionary 
 obligations. If, then, any recognition at all is to be given to 
 the rule, " Locus regit actum," a cautionary obligation under- 
 taken without the protective forms must be held to be valid, if 
 the woman had the power to become surety without them at 
 the place where it was undertaken, and that too in spite of 
 the assumption that all " special" incapacities are to be de- 
 termined in accordance with the lex domicilii. Conversely, a 
 cautionary obligation, which a woman is by the law of her 
 domicile capable of undertaking, is not invalid, although 
 these provisions of the Roman law are in force by the lex loci 
 actus. Thus, for instance, a woman domiciled in dominions 
 where Eoman law is the common law, can undertake a valid 
 obligation of this kind, where the Common Code of Austria,^ or 
 the Code Civil^ is recognised, and the cautionary obligation 
 of a woman domiciled in France or Austria is not invalid, if 
 she becomes surety without special instruction as to the law, 
 or ratification upon oath, in any country where the S. Cons. 
 Velleianum and the " Authentica si qua mulier" are in force 
 as part of the common law of the land.^ 
 
 (2.) By Eoman law (S. Cons. Macedonianv/m), the obliga- 
 tions incurred by persons stiU under paternal power by 
 receipt of a loan are, as a rule, of no effect.* We cannot here 
 
 5 § 1349. 
 
 ^ The Code Civil has tacitly removed the provisions of the Koman law. 
 
 ' The decision of the Oour Boyale de Paris of 15th March 1831 (Sirey, 33, 
 i. p. 665), condemned by Pcelix, but affirmed by the Court of Cassation, by 
 which the cautionary obligation of a Spanish woman, who had as surety for 
 her husband disponed in security her real estate in France, was declared 
 valid, is according to our view right in its result, but not upon the grounds 
 taken by the Cour Eoyale. These were — 1st, Because the property hypothe- 
 cated was situated in France, and therefore the personal capacity of the 
 female pursuer to incur obligations, and the effect of the obligations incurred 
 by her (which she maintained to be null) must be determined by French law ; 
 2nd, Because contracts and obligations which had been made and undertaken 
 in France, and for the performance of which a party was entitled to sue in a 
 French court, could be subject to no other law than that of France. 
 
 ' This limitation upon children in family plainly does not belong to the class 
 of oases of incapacity to act. If it were so, how would it be possible that a 
 demand for restitution by a minor creditor should prevail against a plea upon 
 the Seriatua Oonsultum (S. 11, § 7 ; L. 34 ; D. de minor, 4, 4), or that there 
 
§ 55.] 209 
 
 appeal to any such ground as was urged with reference to the 
 cautionary obligations of women, that by modern law the act 
 becomes vahd if certain forms are observed. Besides the 
 general grounds already adduced, we have the following ar- 
 gument in favour of the opinion we have adopted. Even by 
 the provisions of the Roman law if the lender did not know 
 that the borrower was under paternal power, and had a 
 reasonable ground for his ignorance, the S. Cons. Macedonia- 
 num could not be pleaded. According to the meaning and 
 the spirit of the whole enactment, this must be extended to 
 the case of the son who is in a foreign country, the inhabi- 
 tants of which are not required to know our laws, and, look- 
 ing to their own law, have not the possibility of such a plea 
 before their eyes.^ 
 
 An objection to our view might be raised upon the ground 
 that the inhabitants of a country where the Senatus Gon- 
 sultwm is in force would only have to take a journey into 
 some other country where it is not recognised ia order to escape 
 its provisions. But although we have laid it down that the 
 S. Cons. MacedonianuTTb is not to be apphed to every case in 
 accordance with the lex domicilii, we do not mean to say 
 that the validity of the loan is to be determined by the law 
 of the place where it is made. What we have said is that 
 the competency of pleading the Senatus Considtum wUl be 
 determined by the same law as wiU regulate the vaUdity of 
 the loan in other respects ; and that law, in the case sup- 
 posed of a transaction m fraudeTn legis wUl be, as we shall 
 show in connection with the law of obligations, just the law 
 of the domicile of the contracting parties.^" 
 
 Here, too, as in the case of the 8. Cons. Velleianwm, the 
 validity of the loan can be maintaiaed if it is made in con- 
 formity with the law recognised at the place of the domicile 
 of the debtor.^^ A son under paternal power, therefore, 
 
 should be no condidio of the money paid back by the receiver ? (L. 14 ; D. 
 de reb cred., 12, 1.) 
 
 ^ L. 3, § 1 ; D. ad S. Cons. Macedonianum, 14, 6. 
 " Of. infra, § 66. 
 
 11 Bouhier, cap. 27, No. 3 ; Walter, § 45 ; Thol., § 85, note 7 ; Savigny, 
 § 364; Guthrie, p. 158, pronounce for the universal validity of the lex domi- 
 cilii in reference to the S. Cons. Macedonianum. 
 
 P 
 
210 [§ 55, 
 
 who lias Ms domicile in Hamburg,^^ may validly iacur an 
 obligation by receiving a loan in a country where tbe common 
 law of Rome is recognised.^^ 
 
 The same principles that determined the validity of the 
 exceptio 8. Gi. Macedoniani wUl find application to analogous 
 cases — e.g., the invaHdity which particular systems attribute 
 to loans made to members of particular classes of persons. 
 
 (3.) By many particular systems it is provided, quite 
 apart from the essentials of general capacity, and from the 
 capacity to undertake obligations under contract,^* that cer- 
 tain classes of persons shall not have the power of binding 
 themselves by bills, or that certain classes alone shall have 
 this capacity.^^ 
 
 A large division of the authorities on the subject has 
 declared itself to be opposed to the general application, of 
 such rules, although they may rest upon the lex domicilii, 
 and asserts the validity of an obKgation depending on a bUl, 
 even in the face of such declaration of incapacity, if by the 
 law of the place where the obligation was undertaken the 
 same would have been valid. ^® 
 
 ^ The laws of Hamburg know nothing of the exceptio S. Ci. Macedoniani 
 (Baumeister's Hamburgisches Privatr., ii. p. 51). 
 
 ^^ The question how far the father is bound by the acts of the child still 
 under his power does not belong to this subject, but to the law of the family. 
 
 ■'■* Cf. Allgem. Deutsche Wechselordnung, Art. 1. 
 
 '^ E.g., officials are incapacitated, or only merchants, manorial land- 
 owners, and farmers of State lands, or any other persons who have the special 
 power given to them, are capable of binding themselves by bUls. Of., for 
 instance, the provisions of the Prussian law, iL 8, §§ '715-47, removed by the 
 Allgem. Deutsche Wechselordnung, 1st Feb. 1849. 
 
 1" Giinther, p. 741 ; Mass^, No. 64 ; Pardessus, No. 1413 ; Oppenheim, p. 404 ; 
 Liebe. Allgem. D. W. E., p. 226. We might name also all the authors who will 
 not decide the " special " incapacities according to the lex domicilii. It need 
 not be said that, according to the theory of the English and American prac- 
 tice, the lex dorrmilU does not rule. Savigny, § 364, Guthrie, p. 159, pro-- 
 nounoes for the rule of the lex dondcilii. Schaffner, p. 120, demands that 
 the obligant should be capable of acting by the law of the place of the trans- 
 action, as well as by that of his domicile. This is a result of the principle 
 laid down by Schaffner, which we have clearly refuted, that the laws of a 
 place where a legal relation comes into existence are to be appUed. Schaffner 
 cannot, however, support himself by reference to the Prussian A. L. E. ; for 
 the subject discussed in the citation he gives is the form of the bill. (See 
 Savigny, § 364, note c.) 
 
§55.] 211 
 
 There are weiglity practical considerations to recommend 
 this course. It seems to be intolerable in the interests of 
 commerce that a man who has bound himself by a bill, in a 
 country where all may do so, should be able to avoid the 
 liability which he has thus undertaken by making an 
 appeal to some quite exceptional provision which is to 
 be found in the statute book that is recognised in his own 
 country.^^ 
 
 From the fact that the capacity to contract an obHgation 
 by a biU is not always to be determined by the lex domicilii 
 of the person undertaking it, it is not a necessary conse- 
 quence that it is always to be settled by the law of the place 
 where the obligation was undertaken. The capacity is 
 rather to be determined by the laws that regulate the vali- 
 dity of the bill in other respects, since the rule " Locus regit 
 actum, " is not to be extended in aU its force to afifect the 
 substance of contracts,^^ and the question whether a person 
 can bind himself by a bill cannot be considered to be a mere 
 question of form, according to the definition we have given 
 of the form of a legal transaction.^® (The limitations that 
 are recognised at the place of the inception of the transaction 
 for the protection of the parties cannot be extended to the 
 subjects of foreign States.)^" 
 
 The General Ordinance upon Bills for Germany (Allgem. 
 D. W. 0.), art. 84, coincides with this result. ^^ It provides 
 that : " The capacity of a foreigner to undertake obUgations 
 by bUls shall be determined by the laws of the State to which 
 he belongs. But a person who is, by the law of his own 
 country, incapable of such obligations will bind himself by 
 obligations upon biUs in this country, in so far as he has 
 the capacity of doing so by the laws of this country." 
 
 ^' Liebe'; Orloff, Allgem. D. W. 0., with papers of the conference held at 
 Leipsic, art. 84. 
 
 18 See infra, § 66. 
 
 1' See supra, § 34. 
 
 ^ See supra, note 2. 
 
 ^1 Cf. a judgment of the Supreme Court at Berlin, 21st November, 1840 
 (Decisions, vol. vi. p. 286), and a decree of the Eoyal Prussian Council of 
 State, 16th January, 1834. Koch, on § 23 of the introduction to the Prussian 
 A. L. R., is of another opinion. 
 
212 [§ 55. 
 
 According to the strict letter of tlus ordinance, we might 
 understand the meaning to be, that not merely the special 
 capacity to bind himself by bills, but the general condition of 
 such . capacity, viz., the capacity of the foreigner for legal 
 acts of any kind, is to be determined by the law of this 
 country, on the supposition that the special obligation by 
 biU is by that law within his power. But although the 
 motion in favour of the introduction of this clause was 
 supported, according to the papers of the Conference on Art. 
 87, on grounds that would apply to the general question of 
 capacity to engage in trade, as well as to this particular 
 question of biUs, it is plain from Art. 1. taken in connection 
 with the fact that in Germany, — the country which was in the 
 view of the authors of the ordinance, — the greatest diversity of 
 law prevailed iu the different States as to general capacity to 
 act, that this was not the view intended to be taken by the 
 legislator. By the expression " this country " the authors 
 must have meant no single State of the German Confederation, 
 but the united body, into which the new ordinance was to be 
 introduced ; and this combination of States has no general 
 law as to what persons can bind themselves by contracts. ^^ 
 This article provides generally that obligations on bills, which 
 have been undertaken by foreigners in the territory to which 
 this ordinance apphes, are to be interpreted, iu so far as the 
 question of capacity to undertake obHgations by bills is con- 
 cerned, according to the provisions of this ordinance. But 
 in accordance with the view we have expressed, we must 
 allow an exception in the case of two foreigners, natives of 
 the same State, meeting in Germany upon such a biU trans- 
 action. This is simply explained by the consideration that 
 such a case could but rarely be brought before a court in 
 Germany, and that, as a rule, any process would proceed 
 before the forum domicilii of either party. 
 
 There is nothing in this ordinance as to the case of a 
 person who has not the capacity to bind himself by biUs, 
 domiciled in the territory to which the ordinance applies, but 
 in other respects of full capacity for undertaking such an 
 obHgation abroad. There was no need of providing for this 
 
 22 Of. the decisions reported by Borchardt on Art' 84. 
 
§§55,56.] 213 
 
 case, since, by Art. 1, it is provided that no person shall have 
 such special incapacity .^^ 
 
 In Integrum Restitutio. 
 §56. 
 
 In integrum restitutio is the reduction of a legal relation 
 that has been entered upon, or the restoration of a relation 
 that has been lost, by means of the decree of a judge upon 
 considerations of equity and expediency. It belongs to no 
 special division of our subject, and is rather a rule of univer- 
 sal application, for it may conceivably be appUed in every 
 institution known to private law, and even to many that 
 belong to public law, according to the provisions that may be 
 laid down by the law of each territory. The position we 
 have assigned to it at the close of the discussion on the law 
 of persons is justified in this way, that there is no room in a 
 treatise on private international law for what is called a 
 " general chapter," such as we find in the text books of par- 
 ticular territorial laws ; the purely logical development of 
 legal ideas, which supplies the material for such a chapter, 
 cannot from its nature be made the subject of a work upon 
 the conflict of laws ; while this in integrum restitutio, just 
 because it may be found in connection with most relations of 
 private law, is most aptly treated at the very beghming of the 
 system. 
 
 The special characteristic of this restitution is, that the 
 judgment of the court, instead of making a declaration as to 
 a legal relation already in existence, or what is to be assumed 
 as in existence by the representations of parties, — the ordi- 
 nary case in a civil suit, — here deUberately and consciously 
 reduces a legal relation that exists, or restores one that has 
 been lost.^ We might, by reversing the considerations which 
 in ordinary cases of civil suits exclude the application of the 
 lex fori because of the end that is in view ^ (setting aside the 
 
 23 The question of capacity to bind oneself by bill is not to be confounded 
 with the question whether summary diligence may be done upon a bill against 
 a particular person, or a special process is appropriate. 
 
 1 Savigny, Syst. vii. p. 100. 
 
 ^ Of. supra, § 44, p. 146. 
 
214 [§ 56. 
 
 class of suits wHch. the court holds to be immoral or in- 
 decent), hold that the lex fori is applicable in aU cases of 
 restitution ; and some authors do in fact take this view.^ 
 But although restitution has for its object to re-establish a 
 legal relation that has been lost, or to reduce one that exists, 
 it does both of these things upon grounds which were present 
 at the time when that relation originated or was lost ; in 
 other words, the competency of restitution implies an im- 
 perfect invalidity in the origin or extinction of the legal 
 relation which is concerned,* and the end in view is to 
 keep alive the opposite state of legal relation, which other 
 rules of law justify, by aid, first, of the special proviso that 
 the person who desires to avail himself of the invalidity in 
 question shall have to appeal to the judge, next, by the possi- 
 bility of renouncing the legal remedy and allowing prescription 
 to run upon that renunciation, and lastly, by permitting the 
 judge to pronounce a broad judgment, not hampered by any 
 particular narrow rules of law, in all such cases as it shall 
 appear to him to be for the interest, and in conformity with 
 ■ the requirements of legal intercourse to do so. As, there- 
 fore, there is no place for the appHcation of the lex fori in 
 questions involving substantial legal rights, the result is that 
 this in integrum restitutio falls under the same local law as 
 that to which the legal relation affected by the proposed 
 restitution belongs. This is the view which most authorities 
 take. The result of this is, that restitution against the loss 
 of a real right in immoveable property is determined by the 
 lex rei sitce,^ against the consequences of a binding contract 
 by the laws to which this contract is subject for other pur- 
 poses,® against the prescription of a suit by the laws by which 
 
 ' Walter. D. Privatr., § 44 ; Holzschuher i. p. 78. 
 
 * See the resolution of the Supreme Court of Berlin on 14th February, 1842. 
 (Dec. 7, p. 323) which gives expression to this theory in reference to the 
 applicability of new legislation as to restitution. 
 
 s So P. Voet, 9, 2 ; J. Voet, in Dig. 4, 1, § 29. 
 
 * P. Voet. I.e., J. Voet. I.e. ; Hert., iv. 66 ; Henr. de Cooceji, vii. 9 ; Barto- 
 lus, in L. 1, C. de S. Trin., No. 19 ; Bald. Ubald. L. 1, C. de L. Trin., No. 
 94 ; Baldus Perus, de statutis Vo. Territorium, § 1 ; Christiansens, Decis., vol. 
 i. drois, 283 ; Burge, ii. p. 844 ; Sayigny, § 374 ; Guthrie, p. 247 ; Mitter- 
 maier, Arch, fiir civ. Praxis, 13, p. 301. 
 
§ 56.] 215 
 
 it is itself to be decided, and against delays of process '^ and 
 judicial sentences by the law of the place where the process 
 is proceeding. 
 
 Many writers, however, make an exception in regard to 
 the restitution of minors. They hold that to be merely a 
 special mode of the operation of incapacity to act, and there- 
 fore they determine it according to the lex domicilii of him 
 who seeks the restitution.^ But although the restitution 
 which is ensured for minors may, as a matter of fact, have 
 consequences resembling those of incapacity to act, and 
 although in classical Koman law it served, as a matter of fact, 
 as a substitute for incapacity, so as to protect them against 
 prejudicial transactions,^ yet in a juristic sense they are quite 
 distinct from each other, just as much as a penal statute 
 against persons who take a dishonest advantage of a minor 
 is distinct from a stiatute prescribing the incapacity of 
 minors.^" Such a penal statute has a common object with 
 the other ; but it follows necessarily from the difference of 
 the path by which the object is reached, that there can be no 
 question in such a case of applying to both the lex domicilii 
 of the minor. 
 
 At the same time the following modifications of the general 
 rule we have expounded must be recognised as apphcable to 
 the restitution of minors in conformity with the lex domicilii. 
 
 (1.) The restitution of minors in modem law,^^ where they 
 have no capacity to act, rests upon the ground that because 
 of their minority they are not fit to attend to their own 
 affairs, and that they are from their minority under guardian- 
 ship ; but whether this latter fact is true or not depends, as 
 we have seen, upon the lex domAcilii, and so, therefore, must 
 the further question whether a person in a question of resti- 
 tution is to be treated as a minor. ^^ 
 
 ' The older authors say the laws of the place are to be applied in this case, 
 vJ)i contraeta est mora (negligenUa); cf. Bartolus, P. Voet, J. Voet ut cit. supra. 
 
 8 So Boullenois, ii. p. 469 ; Bonhier, cap. 25, Nos. 62-66 ; Merlin, E^p. 
 Vo. Majority, § 5 ; Decision of the Supreme Court at Berlin, on 25th March, 
 1833 (Simon & Strampff, i. p. 279). 
 
 5 Savigny, § 365 ; Guthrie, p. 168 ; vii. p. 146. 
 
 ^" So the Lex Plsetoria in older Boman law. See Savigny, I.e. 
 
 11 Otherwise by the older Koman law. ^' Cf. J. Voet, I.e. 
 
216 [i 56,57. 
 
 (2.) The restitution of minors rests upon a special protection 
 wMcli is extended to them. That, however, can only take 
 place where it is so extended by the lex domicilii of the 
 minor. If a foreign State proposed to afford such protection 
 to a miaor against the law of his own State, no benefit would 
 accrue to the minor,'^^ but his credit would much more prob- 
 ably be shaken, and his position as a person of property thrown 
 into confusion. No restitution, therefore, can be afforded by 
 a foreign court where it is excluded on the head of minority 
 by the lex domicilii}^ This is, perhaps, unimportant, since, 
 if restitution of minors is not recognised by the lex doTnicilii, 
 it may be assumed that the constitution of the administra- 
 tion by curators is such as to render this legal remedy 
 unnecessary or even prejudicial.-^^ 
 
 III. Law of Things. 
 
 A. General Principles. 
 
 §57. 
 
 No rule of private international law is less disputed than 
 that which holds that real rights are to be determined by 
 the law of the place where the property lies.^ 
 
 15 See the exposition given above in reference to the incapacity of minors. 
 
 "Huber,.§ 12; Eicci. p. 522. The Supreme Court of Appeal at Oelle 
 laid down, in a judgment of 1782, that a native of Magdeburg who sought 
 restitutio in integrum from the Court of Hanover must have suffered, the 
 lesion complained of before his twenty-first year (in accordance with the law 
 of his domicile). V. Biilow and Hagemann, Prakt. Erort. i. p. 150 (cf. 
 Kamdohr, Jurist. Erfahrungen, iii. p. 992). (In the older provinces of 
 Hanover Roman law is the common law). 
 
 15 Wachter, ii. pp. 174-179, is of the opinion that the judge can only give 
 the minor restitution in so far as the laws of the judge permit. This argu- 
 ment, however, would necessitate the application of the lex fori, not here 
 only, but in every other case. 
 
 1 Argentrseus, No. 2 ; Bartolus, in L i. 0. de S. T. No. 26-32 ; Mevius, in 
 Jus. Lub. Proleg. qu. 6, § 10; P. Voet, de Statut. Lib. ix. c. 1, No. 2; 
 Burgundus iv. 12; Bouhier, chap. 29, No. 2; Vattel, ii. chap. 8, §§ 103- 
 110 ; Merlin, E6p. Vo. Biens, § 20; Vo. Loi, § 5; Eichhorn, § 36; Gliick, 
 Comm. §. 76; Seuffert, Comm. i. pp. 246, 247 ; Goschen, i. p. 112; Mitter- 
 maier, i. § 32; Gunther, pp. 736, 737; Miihlenbruch, i. § 72; Kierulff, 
 pp. 80, 81; Mass6, ii. p. 92; Eeyscher, i. § 82; Philipps, i. p. 189; Burge, i. 
 
§ 57.] 217 
 
 We cannot, however, say that this concurrence of opinions 
 extends to the grounds upon which the law of things is 
 shown to be determined by the lex rei sitce. Most of the 
 authorities assume that these things are subject to the lex rei 
 sites as a law of nature, without troubling themselves to inquire 
 further. Others, again, infer from the conception of the 
 sovereignty of every State that none will permit the appH- 
 cation of foreign laws to things that are situated in their 
 territory.^ Savigny finds ground for the appUcation of the 
 lex rei sitce by assuming a voluntary subjection of themselves 
 thereto on the part of all who claim rights in these things.^ 
 Wachter and Thol deduce the application of the lex rei sitce 
 from the win of the legislature, but have no further explana- 
 tion to give why the will of the legislature should be what 
 they say it is. 
 
 In details the views of different authors are still more 
 various. A favourite subject for debate is, whether and how 
 far there is a difference in the proper treatment of moveables 
 and immoveables. In the meantime, we wUl overlook these 
 details, and give our attention to the law of things in general. 
 
 The first argument — ^viz., that which holds the treatment 
 of the law of things according to the lex rei sitce to be some- 
 
 p. 29 ; Foelix, i. p. 115-6 ; SchafFner, p. 65 and p. 82 ; Wachter, ii. pp. 99, 200 ; 
 Savigny, § 366 ; Gerber, § 32 ; Beseler, i. pp. 152, 153 ; Story, §§ 424 et seq., 
 and §§ 374 et seq. ; Thol, § 84; linger, p. 173. 
 
 2 Merlin, E^p. Loi, § 5, cites the ■words of Portalis : — " La souveraineti est 
 ■UTi droit a lafois riel et personnel. Consdquemment ancune partie du terri- 
 toire nepeut itre soustraite a V administration du souverain eomme aucune 
 personne habitant le territoire ne peut Ure soustraite h sa surveillance et b, son 
 autoriU. La souveraimete est indivisible. Elle cesserait de I'itre si les portions 
 d!une mime territoire pouvaient Ure rigies par des his qui n'emaneraient pas 
 du meme sowtierain." Cf. Schaffner, p. 65 : " The foreigner who wishes to 
 exercise rights oyer immoveable property in this country, enters the sphere 
 of this country's law by that very fact. He makes claim to subjects which, 
 by their very nature, can be under no other law than that of the State whose 
 corporeal basis they do to some extent constitute." 
 
 2 § 366, ad init. ; Guthrie, p. 174 : " For since the object of these rights in 
 things is cognisable by the senses, and occupies a determinate space, the 
 locality in space in which they are situated is the seat of the legal relation 
 whose object they are to be. Whoever wishes to acquire, possess, or exercise 
 rights over a thing, betakes himself for this end to their seat, and voluntarily 
 subjects himself, for this particular legal relation, to the local law that pre- 
 vails in that territory. 
 
218 [§ 57. 
 
 tiling in the laws of nature — ^is found, on further examination, 
 to be devoid of aU. foundation. It seems rather to occur to 
 one, on the first glance, that real rights in things should be 
 deternained by the lex domicilii of the owner or the possessor, 
 and, failing that, by the law of the tribunal, as Pfeiffer has 
 recently maintained.* The application of the lex rei sitce 
 cannot therefore be pronounced to be seH-evident if, at the 
 first glance, another view suggests itself. Just as little can 
 we concur in the second reason assigned. The sovereignty 
 of a State is just as strictly apphcable to persons who are 
 temporarily within its dominions, as to things which happen 
 to be there. There is therefore no speciahty apphcable to 
 the law of things to be found there ; and, ia any event, the 
 result of the abstract principle of sovereignty, and the non- 
 recognition of foreign laws, is the rule of the lex fori, and not 
 that of the lex rei sitce. 
 
 The voluntary subjection on which, according to Savigny, 
 the apphcation of the lex rei sitce rests, is a petitio principii : 
 on the one hand it must be shown that the laws recognised 
 at the place where the thing is situated will suffer no inter- 
 ference with their supremacy over rights connected with these 
 things, for otherwise a voluntary subjection to them would 
 not ensure the apphcation of the lex rei sitce ; and, on the 
 other hand, if it is true as a matter of fact that anyone who 
 wishes to exercise rights over a thing must betake himself tb 
 the place where it is situated, and may thereby be subjected to 
 the laws of that country, it does not by any means follow 
 that other States must recognise this subjection ; if, for 
 instance, a moveable thing be afterwards taken into the terri- 
 tory of another State, or if the question, who is the owner of a 
 thing, should emerge incidentaUy in the course of a process 
 in some other State as the foundation of a private right. 
 
 The last theory of the foundation of the rule, given by 
 Wachter and Thol, must no doubt be described as that theory 
 which is soimd in principle. But here, as in other cases, it is 
 not enough to appeal to the intention of the lawgiver without 
 assigning reasons for that intention. 
 
 ' Pp. 60, 61. 
 
§ 58.] 219 
 
 §58. 
 
 That a more accurate definition of the law of tilings 
 shows tliat the lex rei sitce is the only one that can possibly 
 be applied is thus demonstrated. 
 
 The law of things is commonly defined as the doctrine of 
 the legal dominion of persons over things. This is not quite 
 accurate, since aU laws must at bottom regulate legal relations 
 among persons, and things cannot in themselves serve to form 
 the corelative to persons in such relations : we only express 
 the negative side of the legal relations that fall under the 
 subject, by the proposition that if one who has the right to a 
 thing deals with it somehow by virtue of that right, no legal 
 relations arise, since it is at his command in the way in 
 question. 
 
 The most important and the most difficult part of the doc- 
 trine of the law of things deals with the protection which he 
 who has the right to a thing enjoys as against third parties 
 who have no such right, and with the mode of determining, 
 among several claimants of the right to a thing, to whom it 
 in truth belongs. This positive side is expressed by describ- 
 ing the law of things as the doctrine of the legal relations 
 which may arise from the actuaP existence of a thing, and 
 are necessarily conditioned by it.^ But the existence of a 
 
 ^ According to this definition, the law of things includes the doctrine of 
 possession. This might be justified on the ground that a possessory right is 
 reaUy a temporary right to the thing : one doctrine passes into the other at 
 many points ; and if considered closely, as may be seen from the ordinary de- 
 finition of possession and of a right to a thing, the one cannot be thought of 
 without the other. For the definition of property as a legal dominion can 
 only be understood by tacitly taking with it the complementary notion of 
 actual dominion ; while the definition of possession as actual dominion 
 requires the complement of legal dominion.] i [But an action for the price of 
 heritage may be brought at the domicile of the debtor (Girard Delorme v. 
 Bergeron, Trib. civ. de la Seine, 12th November, 1874.)] 
 
 2 From the fact that the existence of this right is conditioned by the 
 thing, and, therefore, ceases with it, we get the distinction between the law of 
 things and the other legal relations which merely have their origin in the 
 actual existence of things — e.g., the obligation of the possessor of a thing to 
 answer for its loss. This is a relation of obligation merely quasi ex contractu 
 or ex delicto. As, however, certain legal relations may be constituted by 
 special convention among those who have right to a thing and through the 
 existence of that thing, it is indispensable to add the word " necessarily." 
 
220 [§ 58. 
 
 tiling does not in itself found any legal relation ; ^ it is 
 necessary that it should become the subject of legal 
 commerce, and this occurs when some person actually 
 makes himself master of it.* All the modes of acquiring 
 rights in thiags originally — occupation, specification, the 
 combination of one thing with another, and prescription — 
 rest upon an actual dealing with the thing itself, and aU de- 
 rivative as well as original modes of acquiring rights in things 
 agree in this, that by them is determined the protection to be 
 afforded to him who is in right of them against the claims of 
 third parties. 
 
 There must, however, necessarily be a limit to the protection 
 which such a person enjoys, and beyond that limit persons 
 who have no right in the thing wiU, even in a question with 
 him who had the origirial right in it, to a certain extent, be 
 protected by law, either temporarily or permanently, in actual 
 dealings with the thing in question, or operations upon it. In 
 this way, for instance, a person who has no right at all in a 
 thing, may by actual appropriation and prescription rob the 
 former owner of his rights, or at least be protected to a cer- 
 tain extent in his possession of the thing as against the former 
 owner. If, then, the object of the law of things be to discuss 
 the legal relations which are necessarily conditioned by the 
 actual existence of a thing, and arise from the circumstance 
 that any person's dealings with it must be by means of 
 actual (interference with it ; and, further, if it is impossible 
 actually so to interfere with a thing except upon the spot 
 where that thing for the moment happens to be, we have then 
 this result for the subject tmder discussion, that the deter- 
 mination of the right in that thing must be carried out in 
 
 2 No private rights exist ia things' which have not yet been occupied. 
 
 * It may be objected that it does not require the act of man to originate a 
 right in a thing, but that, as in the case of adhesion, it may be done by an 
 operation of nature. But it is no proposition of law to declare that there can 
 not be any separate right of property in a thing which ceases to have an inde- 
 pendent existence, and that natural accession increases the property of the 
 owner of the principal thing ; it is merely a necessary rule of logic, and 
 therefore obtains in every legal system, just in the same way as the proposi- 
 tion that the air and the water, which are worked up by plants into fibres, 
 belong to the owner of the plants, from which latter proposition it follows 
 that the owner has right also to their fruit. 
 
§ 58.] 221 
 
 accordance with the laws of the land where it happened to 
 be at the time when it was dealt with in such a way that a 
 particular real right in it was acquired or lost. The law of 
 the place of the domicile of either of the parties cannot 
 decide, because the object is to determine the legal relations 
 of all the persons who have been brought into any kind of 
 relation with the thing, and therefore no weight can be given 
 to the fact of domicile. In the same way, if the place of 
 the transaction which affects the thing, and the place of 
 the thing itself do not coincide ; if, that is to say, a bar- 
 gain about the thing be made without any actual contact 
 with it, it is not the law of the place of the bargain that will 
 rule : for this reason, that if the right said to have been 
 created by this contract comes to be questioned as a real 
 right, and therefore to be tried with a third party, the dis- 
 cussion and decision will both turn upon the question whether, 
 and if so, what effect is to be given to some actual dealings 
 with the thing by a third person after the conclusion of the 
 contract : for instance, it is settled that if there be a . good 
 disposition of the thing in security by means of an informal 
 contract, then a subsequent tradition of it will not give the 
 new owner and possessor those rights which they would 
 have acquired apart from the disposition in security. The 
 law that is recognised at the seat of the court which is com- 
 petent for decision of any question, cannot in any view be 
 taken as decisive : the question is in every case, in so far as 
 the process deals with real rights, and not with mere matters 
 of penalties relating to the process — e.g., the obligations in- 
 cumbent on one who has fraudulently conducted his suit — 
 whether at some former point of time the one person had a 
 right as against the other : now, if the law of the place of the 
 court were to decide, that right would not be declared but 
 a new one would be created. This, however, is at variance 
 with the object of all civil process.^ The beHef that any 
 other law than the lex fori or the lex rei sitae can decide, 
 rests upon a tacit assumption of that which is the first thing 
 to be determined and settled. It is assumed that the person 
 on whose domicile stress is to be laid has already rights in 
 
 * See supra, p. 58. 
 
222 [§ 58, 
 
 tlie ihiag, be these mere rights of possession, or that some 
 particular transaction gives or transfers right in the thing, and 
 the question, as to what law is to rule a legal relation, is made 
 dependent upon the previous existence of another relation of 
 private law, or upon the belief that a transaction with refer- 
 ence to the thing has had some effects by private law, while 
 as yet, in so far as international law is concerned, we are not in 
 a position to postulate the existence of any definite right, but 
 merely to assume facts and circumstances : such, indeed, are 
 the place of the transaction, or of the tribunal, or of the 
 thing, or any such circumstances as, like domicile, belong to 
 international law or, if we take the case of the different pro- 
 vinces of one State, to municipal law. 
 
 If it is demonstrated that it is the wish of the legislature 
 that its provisions as to real property should comprehend all 
 things that at any time are found in its territory, it would, 
 no doubt, be conceivable that the State, while it claimed this 
 right for itself, should refuse the same right to other States, 
 at least in relation to things belonging to its own subjects, 
 and should therefore proclaim that rights in things which 
 belonged to one of its subjects should, even in a foreign 
 territory, be lost in accordance with its own laws, and that 
 the rights of others to those things should only be recognised 
 if they were acquired in conformity with the laws of the 
 domicile of these persons. This would, however, be a denial 
 of the sovereignty of the foreign State : for it is impossible 
 to dispute what necessarily foUows from the nature of legis- 
 lative power, and what is claimed by our State upon this very 
 ground, when it is claimed by another State within the limi ts 
 of its own authority. Civilised States permit intercourse 
 with each other, and, therefore, also permit moveables to be 
 brought from one territory into another, and further, mutually 
 concede that these things shall be subject to the system of 
 law of the country into which they may happen to have 
 been, brought. What monstrous uncertainty would be created 
 for trade, if one State were not obhged to recognise the 
 acquisition and loss of real rights in the territory of another 
 State in accordance with their laws, may be imagined. But 
 all the more impossible is it to coincide with the view 
 Savigny takes of a voluntary subjection of the individuals 
 
§§58,59.] 223 
 
 concerned : if strictly taken up, this would lead to tlie result, 
 that in any case the application of the lex rei sitae could not 
 be maintaiaed, if the thing in question were taken into 
 the territory of another lawgiver against the will of the 
 possessor.^ ^ 
 
 The attempt to determine rights in. things according to the 
 laws recognised by the law of the domicile of the person, has 
 been shown to be impracticable, as Wachter * and Savigny ^ 
 have already demonstrated. While the whole object is to 
 show who has a particular right in a thing, it is assumed 
 that some one already has either one right or another, but, 
 although the one or the other real right — e.g., property or 
 possession — is always laid down as being the leading right, and 
 that which is to settle the question, we always fail to find a 
 principle for decision when two persons come to be in dispute 
 about that very right. 
 
 §59. 
 
 It must, therefore, appear all the more surprising that far 
 the larger number of the older authors, and even many 
 modems, especially English and French, take a distinction 
 in this respect between moveables and immoveables, and lay 
 down a rule, that while rights in immoveable property are to 
 be determined by the lex rei sitae, rights in moveables are to 
 be determined by the lex domicilii of a person.^ Most of them 
 
 ' In Biccius, p. 592, we find this strange theory which destroys the security 
 of all commerce, and cannot be reconciled with the conception of territorial 
 sovereignty. 
 
 ' In times of war, the belligerent powers recognise that a ship which has 
 actually fallen into the enemy's hands belongs to him, and is subject to the 
 law of his country, and if it should be re-captured, the right of the original 
 owner does not revive, but the prize falls to the captor. Grotius, iii. c. 6, § 3, 
 No. 1 J Massfe, L No. 417 ; Vattel, iii. § 196. The English Government 
 alone, in such circumstances, gives the ship back to the former owner. 
 
 8 i. p. 293. 
 
 9 § 366 ; Guthrie, p. 175. 
 
 1 BarthoL de Salic, in L. 1. C. de. S. Trin. No. 14. Argentrseus, No. 31 ; 
 Burgundus, i. 41, 42 ; iv. 26. Eodenburg, ii. p; 1, c. 2, § 1 ; iii. p. 1, c. 4, 
 § 1 ; ii. p. 1, c. 5, § 16. Mevius, Proleg. qu. .6, § 23. P. Voet, iv. 2, § 2 ; 
 ix. 2, § 8 ; X. § 2. Cocceji, De fund. viii. 4. Jo. a. Sande, Decis, iv. tit. 8, 
 defin. 7. Matthseus, i. 21, no. 35, 36. Christianseus, vol. i. ; Decis. iii. 5, 
 No. 1 ; GaUl, ii. obs. 124, No. 17. Witzendorf, de statut., xv. No. 11 ; xxiv. 
 
224 [§ 59. 
 
 do not expressly say to what person they refer, but they mean 
 the person of the owner.^ The view that holds the domicile 
 of the possessor as regulative, — a view which is more easily 
 carried out in practice, because the rules for determioiag the 
 possession of a thing are more generally ahke among different 
 peoples than those which determine property, — is rare.^ 
 
 The reason assigned for this view is, that moveables must 
 be held in a legal sense, to be at the place where the person 
 has his domicile,* because it is quite accidental where they may 
 be, and it is in the absolute power of the owner to take them 
 from one place to another. (According to the theory of 
 statuta personalia realia and mixta, it was assumed that 
 the laws which dealt with rights in things were statuta realia, 
 but as the laws recognised at the domicile of the owner were 
 said to rule the case of rights in things, these laws were, for 
 shortness, described as statuta personalia when they referred 
 to moveable things.)^ But even putting out of sight the 
 impossibility of carrying out in practice the rule of determ ining 
 rights in moveables according to the lex domicilii of one of 
 the parties concerned, this ground cannot be considered as 
 apposite, since the existence of a right is very often due to 
 accident ; while the provisions made by the owner or possessor 
 for his property may be of little importance, siace in the law of 
 things the actings of third persons who, in a question with 
 the good right of the owner, have no right at all in the 
 thing, can often disturb or encroach upon the owner's rights. 
 
 No. 6 ; Colerus, proc. execut. i. c. 3, No. 253. Chassenaeus in consuet. 
 Burgund. Eubr. ix. § 16. BouUenois, i. p. 121, p. 833. Bouhier, cap. 24, 
 No. 177 ; cap. 25, No. 1. Pothier, Des Choses, § 2, No. 3 (in his posthumous 
 works, ii. p. 650). Hofaeker, principia, § 140. Danz. i. § 53, p. 178. 
 Hommel. Ehaps. vol. ii. obs. 409, No. 4. Titius, i. c. 10, § 43. Oppenheim, 
 p. 396. Thihaut, § 38. Schweppe. Eomisches Privatrecht, i. p. 52. Mauren- 
 brecher, i. § 144, ad fin. Mittermaier, § 31. Maasi, p. 93. Mailher. de Chassat. 
 No. 63. Foelix, i. p. 125, § 61. Burge, i. p. 81. Story, § 374. Holzschuher, 
 i. p. 63. Heffter, § 38, p. 73. 
 
 2 Cf. Savigny, § 366 ; Guthrie, p. 175. 
 
 ' Hauss, p. 26, 34 ; Story, § 383 ; and Kierulff specially declare themselves 
 in favour of the rule of the law recognised at the domicile of the owner. 
 
 * The older writers say, "MoUlia ossibus mhcerent," or " Mobilia personam 
 sequvmtur" English and American authors and courts say, "Personal pro- 
 perty has no locality." 
 
 ^ So for instance, Foelix, loc. cit. 
 
§ 59.] 225 
 
 It is still less possible to lay stress upon the principle recently 
 laid down, that the person acquires a power of attraction 
 over the thing ; « by such means anything could be proved.'' 
 If we enquire more closely what import the older authors 
 mean to assign to the rule, we can scarcely find one instance 
 adduced of a real right to a particular article as an illustration 
 of the theory, although facts lay so near at hand. On the 
 contrary, as a rule, they take the relations of the law of 
 inheritance and of the property of married persons, cases in 
 which the rule is applied in order to avoid the result that 
 would ensue from the consistent determination of their 
 problems by the lex rei aitce — ^viz., that a different law of 
 inheritance or of matrimonial rights might apply to each 
 single moveable article that belonged to the estate. This 
 result seemed so absurd and impracticable, that it was 
 thought necessary to avoid it by the introduction of a special 
 rule of law ; and, as in these two departments of law, no 
 stress was put upon the cardinal point — viz., whether and to 
 what extent the different legislatures looked upon the estate 
 as a whole,^ or upon each asset that belonged to it separately, 
 and at the same time these departments were universally held 
 to supply a separate class of rights in things, whUe the lex 
 rei sitae was declared to be supreme over rights in things as 
 a general rule, the only way to extricate matters without a 
 contradiction was to set up the fiction that moveables were 
 to be held to be present at the domicile of the owner or the 
 possessor without consideration of their actual situation. In 
 these two categories the question that must inevitably arise in 
 the apphcation of any rule dealing with rights as to particular 
 things, whether the domicile was the domicile of the owner 
 or other person who had the real right or of the possessor. 
 
 ^ Holzschuher, p. 63. 
 
 '' Passages from the Eoman law have been cited in proof of this, L. 32, 
 D. de pign. 20 ; 1 L. 35, D. de hered. instit. xxviii. 5. These passages refer to 
 the interpretation to testamentary settlements, and have nothing to do with 
 a conflict of different laws. Cf. Wachter, i. p. 250-51, and supra, p. 13. 
 
 * Older German law treated succession in moveables as a universal succes- 
 sion, the theory of modern English law ; one who falls heir to the moveables 
 is liable for the debts in so far as these are not expressly laid upon the landed 
 property. 
 
 Q 
 
226 [§ 59. 
 
 could not be raised. Since in any dispute as to inheritance or 
 the property of married persons, all those who took part therein 
 founded their rights upon a succession to the estate of one and 
 the same person, or upon a right to represent one and the same 
 person, it is only the domicile of this one person that can 
 come into question ; the suit as to the inheritance or the estate 
 of the spouses will not touch the real rights of any other 
 persons, apart from and independent of the rights of 1;he 
 deceased, or of either of the spouses. Some writers, who 
 determine the capacity to act by the lex rei sites, use the rule 
 for the purpose of confining their theory, which if applied to 
 moveables would lead to results that could not be carried out 
 in practice, to the power of disposing of immoveables.^ 
 
 This is confirmed by the many exceptions taken by authors 
 of foresight. Mevius points to the case of an arrestment 
 laid upon a moveable as a case where it would not be possible 
 to apply the law of the domicile of the person to whom the 
 thing arrested belongedj^" and J. Voet will only sanction the 
 rule in the restricted sense of a practical regulation, and not 
 of a legal principle, so that it would be necessary to inquire 
 into the practicability of its application in every case.^^ 
 Among the modern authors who defend the theory in 
 general, FoeUx and Mass^ except from its operation the law 
 of things in the narrow and proper sense,^^ and the judicial 
 decisions, reported by Story,^^ expressly declare that the pro- 
 perty in goods sold only passes to the buyer, if the method of 
 transference be in conformity with the laws of the place where 
 at the time of the transaction in question the goods as a 
 matter of fact were, and in the same way the law as to pledge 
 and inora connected with moveables is determined by the 
 law of the lex rei sitce. The reasons which require the 
 
 8 Cf. Unger, i. p. 156. The cases reported in §§ 3, 7, 9, et seq of Story, in 
 which the rule " JPersonal property has no locality," was taken by American 
 and English courts as the basis of their judgments, appear without exception 
 to refer to cases of succession or of property of married persons. 
 
 " Proleg. qu. 4, § 27. If the rule were consistently carried out, arrest- 
 ments, depending upon the fact of the owner being a foreigner, would be 
 inconceivable, for no man is held to be a foreigner by the law of his domicile, 
 
 " Comm. ad. Dig. i. tit. 4, p. 2, No. 10-13. 
 
 " Mass6, p. 96, No. 70 ; Foelix, i. p. 134. 
 
 " §§ 385 et seq. 
 
§ 59.] 227 
 
 application of tlie lex rei sitce in these cases, and exclude all 
 regard to the lex domicilii of the owner as opposed to the 
 general security of trade, could not in fact be better laid down 
 than they were in a decided case reported by Story (388- 
 389)." If, however, the opinions of the more approved 
 authors as to the meaning of the rule " mobilia personam 
 sequiuntur " do not go the length of affirming that all real 
 rights in individual moveable things must be determined by 
 the law of the domicUe of the person, we need not assume 
 that the Legislatures that have expressly adopted the rule ^^ 
 mean to affirm this. 
 
 It is the piurpose of these Legislatures to estabhsh the rule 
 only in the sense of a logical result from the nature of rights 
 in moveable things, and not in any sense by which it might 
 come into conflict with logical priaciples, and in any event 
 to estabhsh it in the sense ia which the views of the day 
 regarded it. We have already shown that these never con- 
 sidered the exclusive determination of the lex domicilii to 
 be right or proper.^* 
 
 Already a large number of modem writers have taken it 
 as a priaciple that rights in moveables should be determined^^ 
 
 '* Story seems to think that, if the lex rei sitce were at the bottom of the 
 acquisition and loss of real rights in moveables, rights vested in one country 
 would be lost if the thing were subsequently brought into another country, 
 and the mode of acquisition sanctioned in the one country did not correspond 
 with that of the other. This is, however, by no means the case according to 
 the theory of the text. 
 
 15 E.g., Preuss. A. L. E., Introd. §§ 28 e« seq. ; Oester. G. B., § 300. 
 
 1^ Unger thinks differently of the Austrian Code, but concedes that, in 
 cases whose complications cannot be resolved by the principles therein as- 
 sumed, the principle of the application of the lex rei sitce as in the nature of 
 things must be adopted. Koch, in his notes to the paragraphs of the Prussian 
 A. L. K. cited, shows that they cannot be carried out in practice. 
 
 1' Besides Savigny and Waohter, ii. p. 383 ; Reinhardt, p. 31 ; Giischen, i, 
 p. 112 ; Miihlenbruch, § 72, ii. 1, p. 194 ; Philipps, p, 246 ; Beseler, i. p. 
 152 ; Schaffner, p. 82 ; Eichhom, § 36 ; Thol, § 84 ; Gerber, § 32, declare 
 themselves opposed to the establishment of any general rule at all as to real 
 rights in moveables. If Gerber proposes to find the principle of determina- 
 tion in the import of each legal relation, he should have explained how that 
 is to be ascertained. This, however, he has not done. The ground which is 
 assigned by Miihlenbruch for the view taken here proves nothing. See, on 
 the other hand, Foelix, i. p. 129. 
 
228 [§§59,60. 
 
 by the lex rei sitce, and some Legislatures^* have expressly- 
 adhered to it. 
 
 § 60. 
 
 Savigny thinks the following modifications of the general 
 rule must be made. 1st, In the first place, says Savigny, 
 (§ 366, Guthrie, p. 179), the position in locaHty of the move- 
 able thing may be so indefinite and fluctuating as to exclude 
 the possibility of knowing where that position is, and conse- 
 quently what is the territory the local law of which applies, 
 and therefore, too, the assumption of a voluntary subjection 
 to that law ; to this class belong a traveller's luggage or goods 
 in transit. 2nd, A moveable article may also be so dedicated 
 that it becomes attached to some permanent resting-place, as 
 for instance the stocking of an estate or the fumitiu-e of a 
 house. 3rd, Between these two opposite classes of moveables 
 there he many intermediate cases in the most various grada- 
 tions. The general rule of the supremacy of the lex rei sitce 
 will be applied to real rights in things of the second class, as 
 is admitted by many authors, who in other respects take the 
 rule "mobilia sequuntur personam" as their principle.'' With 
 regard to the first class, to which belong the cases of a 
 traveller with his baggage passing through several countries 
 in one day in a mail coach or in a railway train, and that of 
 a merchant despatching goods upon a long sea voyage, the 
 lex domicilii will always rule. Savigny thinks it impossible 
 to lay down a general rule for the intermediate class. It 
 depends on circumstances whether the lex domicilii or rei 
 sitcB is to rule ; and it is not merely the longer or shorter 
 
 18 So the Codex Maximil. Bavaricus, P. 1, C. 2, § 17, and the 4th article of 
 the Code of the Canton of Berne (Foelix, p. 139). The code civil has an article 
 which provides, " Les immeubles mime cewx possddis par des itrangers sont 
 rigis par la loi frangaise." We cannot, however, deduce from that a tacit 
 sanction of the rule " mobilia personam sequuntur" in the sense of an exclu- 
 sive application of the lex domicilii to moveables, but merely infer that the 
 application of the lex rei dtw prescribed by the Code for immoveables is not 
 to be extended to moveables, unless there are logical reasons to justify it. 
 The judgments cited by Foelix, p. 132, all refer to the law of succession, and 
 Ao not, therefore, touch the view taken here. 
 
 1 E.g. Mevius, Proleg. qu. 4, 20 ; Carpzov. Jurispr. for P. iii. const. 12, 
 defin. 15 ; Story, § 382 ; Pothier, Des. Choses, § 1. 
 
§ eo.] 229 
 
 duration of the tlimg in one place that is to be considered; 
 but also the nature of the legal category with the application 
 of which we may be concerned. For example, a very short 
 period will be sufficient to determine the question as to the 
 appropriate form of alienation of a thing, e.g., whether it 
 shall be tradition or mere contract, to the effect of making 
 the lex rei sitae the rule, whereas, on the other hand, as Savigny 
 remarks, prescription may be considered in another hght. 
 
 The principle on which this distinction rests, is the theory 
 of Savigny already mentioned, according to which the appHca- 
 tion of the lex rei sitce results from a voluntary subjection of 
 the persons concerned to it. Although there is no occasion 
 to draw back on this account from the universal vaUdity 
 claimed for the lex rei ditce, in order to allow the modifications 
 of that rule (which Savigny himself says is the general rule) 
 to have their operation, his remarks are, with the following 
 limitations, true : — 
 
 1st, If the acquisition of a real right in. a thing rests 
 Gpon a voluntary transference on the part of the owner, or 
 of any other person who may have the right to it, the inten- 
 tion of the party making the transference (apart from the 
 other requirements of the law in cases of transference or 
 grant) to make that transference or grant must be clear ; 
 and there may be a doubt as to this intention in case it 
 should happen that the requirements for the constitution or 
 transference of the right in question are different at the place 
 of the domicile of the granter from those of the place at which 
 the thing happens for the moment to be. li, then, as is 
 assumed in the instance given in illustration by Savigny, of 
 the traveller's luggage, or the cargo upon a voyage, the owner 
 does not know where the thing is, or what the law of the 
 place is, his intention cannot be ascertained if, in the trans-- 
 action that is in question, the forms required by the lex 
 domicilii of the owner or other person having right to the 
 thing are not to be observed. As, however, the right in 
 question cannot be transferred unless that intention exists, 
 the alienation of the thing, although conceived in a form 
 that is recognised as valid by the lex rei sitce cannot receive 
 effect. For instance, take the case that, by the law of the 
 domicile of a merchant who sends a cargo of' goods through 
 
230 [§ 60. 
 
 different countries, tradition is required to transfer property 
 in moveables, but is not required by tbe law of the place wMch 
 these goods at the moment of the contract happen to have 
 reached upon their transit. It cannot be asserted, so long 
 as tradition has not taken place, that there was any intention 
 of transferring the property.^ 
 
 It is, however, to be noted that, by international law, a 
 ship, upon the high seas is held to be a part of that territory 
 whose flag it is entitled to carry ; and that therefore, on 
 this ground, if the owner has placed his goods upon a ship 
 belonging to his own country, the lex rei sitce and cUymicilii 
 coincide until the ship has reached a port of some other 
 country.* The length of time during which a thing remaias 
 in a particular place determines, therefore, the intention of 
 the contracting parties, but does not rule the objective re- 
 quirements of the transference or constitution of real rights. 
 
 2nd, In the case of a legal category which can only be appHed 
 to the permanent possession of a thing, it cannot from its very 
 nature be applied to moveables which are only accidentally and 
 temporarily in the territory to which that rule belongs ; but, 
 conversely, it must be appUed to all such things as are ordi- 
 narily considered to be present in that territory, and are in 
 some other country for a short time only — that is to say, to 
 all . moveables possessed by subjects of the State, in so far 
 as the possessor has made no special dedication of them, 
 whereby they are permanently attached to a foreign seat. 
 The possessor has the actual dominion over the thing ; and 
 it can be of no importance, where the question is as to the 
 effects of a permanent legal relation, that he has not as yet 
 used the powers which he has in virtue of his dominion to 
 bring the thing to his own domicile. In these cases the lex 
 dovnicilii of the possessor must be held to rule, a result which 
 is possible just because the question who is the possessor may 
 be certainly determined without contradiction ; and it is 
 admitted for this reason also, that to determine this per- 
 
 2 A similar observation must be made in reference to the rule " locus regit 
 actwm" sijupra, p. 139. 
 
 5 In this way are resolved the doubts expressed by Story, § 377 ai fin, 
 and ur^ed by him against the application of the Ux rei sitce, and the decision 
 of the Supreme Court of Lousiana cited by him in § 391 is explained. 
 
§§ 60, 61.J 231 
 
 manent relation according to tlie laws of aU those places 
 where the thing may happen to be at any single moment of 
 this long period, necessarily involves difficulties that cannot 
 be unravelled. This is of special importance for questions 
 of prescription in moveables, and the prescription, too, of 
 actions directed to the delivery of particular articles. By 
 the term possessor is to be understood he who actually 
 determines the situation of the thing, and therefore, as a 
 general rule, the legal possessor, since the custodier merely 
 carries into effect the instructions of the legal owner. If 
 anyone, without leave from the legal possessor or the owner, is 
 exercising some right of use upon the thing, and for this pur- 
 pose has it in his possession, he determines the place where 
 the thing must be, and his domicile therefore supplies the 
 legal rule. 
 
 §61. 
 
 We have agaia to remark that the rule, " locws regit 
 actum," does not apply to the rules for the constitution and 
 transference of real rights. That is the result of the proof 
 we have already attempted to adduce for the universal 
 validity of the lex rei sitce. 
 
 But we have also the following grounds to support it. 
 In the Middle Ages, to acquire landed estate in property or 
 in feu was held equivalent to being received into the com- 
 munity or feudal union under whose authority that estate lay. 
 This explains how, at first, such rights had to be transferred 
 in presence of the community, and afterwards before the judex 
 rei sitce,^ and how the application of the lex loci actus was 
 excluded. Although this rule disappeared in many districts 
 as the Roman law advanced, yet the rule of customary law, 
 " locus regit actum," was never applied to real rights to 
 landed estate.^ The grounds upon which this exception 
 depends are the very same as those which compel the re- 
 
 1 Of. Beseler, ii. p. 78. 
 
 ^ TWs, too, is undisputed. For instance, we may name the foUowiDg 
 authors who specially reject the rule, "locus regit actutm," as regards the 
 acquisition of landed property and other real rights in the soil : — Argentraeus, 
 No. 3 ; P. Voet, c. i. § 9, No. 2 ; Alef, No. 44 ; Cocceji. vii. 14 ; Ziegler, 
 Dicastice, Cond. 15, No. 12; Boullenois, i. pp. 501-503; Eeinhardt, i. 1, 
 p. 31; Mittermaier, § 32; Burge, ii. pp. 843-871; Waohter, ii. p. 383; 
 
232 [§ 61. 
 
 cognition of tlie lex loci actus for other acts by the force of 
 an universal law of custom. If it be the case that this rule 
 is advocated as applicable to contracts or testamentary dis- 
 positions, because it would not unfrequently be impracticable 
 to observe any other forms than those recognised at the place 
 of the transaction, and without such a rule it would be neces- 
 sary to observe the forms prescribed by more than one system 
 of legislation, we may lay down exactly the converse for the 
 transference of real rights in landed property. All enact- 
 ments which, in order to protect the rights of landed pro- 
 prietors, have introduced forms of execution, would be illusory 
 if it were possible to escape from these forms for the acquisi^ 
 tion of real rights by a journey into another country. It 
 is the public interest which would suffer by such an elusion 
 of these forms, and not the individual, as in the case of obli- 
 gatory contracts.* 
 
 Just as httle can the rule " loctis regit actum " be applied 
 to the transference of real rights in moveables.* We could 
 
 Story, §§ 435, 363; Savigny, § 381; Guthrie, p. 320; linger, p. 176. 
 Although Story, in the passages cited by him, § 439, finds a large number of 
 authors who take the opposite view, the reason of that is that these authors — 
 viz., Eodenburg, tit. 2, c. 3 ; Vinnius ad Instit. 2, 10, § 14, No. 5 ; Molinseus, 
 Consilia, 53, § 9 ; Huberus. i. tit. 3, § 15 ; J. Voet, ad Dig. j. tit. 4, p. 2, 
 §§ 13, 15 — discuss the validity of a testament executed ascording to the forms 
 of the lex loci actus to afifect immoveables situated elsewhere ; and that this ques- 
 tion must, no doubt, be answered in the affirmative as regards those territorial 
 laws where there is an universal succession, and the immediate right to the real 
 estate is not considered as the subject of the disposition; while, according- 
 to English law, from which Story starts, the notion of an universal succes- 
 sion has no application to immoveables, and therefore there is no distinction 
 between the acquisition of a landed property by testament and acquisition by 
 a conveyance inter vivos so far as the question of form goes. In spite of 
 other recognitions of the rule, "locus regit actum," all the German State 
 treaties given by Krug mate an exception of rights of real property, and 
 subject them to the lex rei sitm. Krug, pp. 50, 51. 
 
 [The French courts cannot itiquire into the inducing causes of deeds granted 
 in American form for the conveyance of heritage in New York, although 
 they have been executed by a Frenchman in France (Leray de Chamont, 
 Trib. civ. de la Seine).] 
 
 3 0f. Story, §440. 
 ' *See, too, ■Wachter,ii. 383; Savigny, § 366, Guthrie, p. 179. So, too, the 
 Convention between Bavaria and Wiirtemberg of 7th May, 1821, § 22 ; and 
 the other South German Conventions founded on it, cited by Krug. The 
 others speak of immoveables exclusively. ■ 
 
•§ 61.] 233 
 
 scarcely point to a case in the older authorities where a real 
 right was determined by the lex loci actus, unless this hap- 
 pened to coincide with the lex rei sitce; and whereas the general 
 recognition of the lex loci actus, as regards obhgatory con- 
 tracts and testamentary provisions referring to an universal 
 succession, serves to give security to legal intercourse, if 
 extended to the acquisition of real rights in moveables it 
 would produce the greatest confusion. No one can, for ex- 
 ample, assert that if iu our country a right of pledge in 
 moveable articles can only be created by delivery of thesie 
 articles, and can only exist by continued possession of them, 
 these provisions, which substantially affect the security of all 
 such rights in our country, do not need to be observed in a 
 transaction entered upon abroad. It is quite possible, 
 although not necessary, that a defective attempt to constitute 
 or to transfer a real right may contain enough within itself 
 to constitute a binding obligation to transfer or to grant a real 
 right, in spite of the nullity of the grant or transference as not 
 being in conformity with the lex rei sitce ; ^ the form of such 
 an obhgation is determined by the rule " locus regit actum." ^ 
 
 ^ The question depends upon — 1st, Whether the persons concerned in- 
 tended at the same time, or, at least, intended eventually to originate a bind- 
 ing obligation ; 2nd, whether they have observed the form recognised at 
 the place where the contract was concluded or the form that would 
 otherwise prevail. The first must be determined according to the circum- 
 stances of each particular case, and in particular cannot be assumed offhand 
 in cases which are founded upon gratuitous considerations. Burge, i. p. 24, 
 ii. p. 865 ; Story, § 436 ; P. Voet de Statut., c. 1, § 9, No. 2; Burgundus, i. 
 15, 16, 37 ; Eodenburg, ii c. 5, § 9 ; Wachter, iL p. 383, note 181. By the 
 ordinance of 18th December, 1843, in Hanover, § 3, bargains concluded in 
 different provinces, by which full or limited property, or a long lease of landed 
 property is divided, conveyed, or surrendered, need a public deed in order to 
 give them formal validity. No real right is conveyed by a bargain concluded 
 in a foreign country without such a public deed ; on the other hand, the pro- 
 vision of § 6, by which a private deed subscribed by both parties is essential 
 to constitute a binding obligation to transfer one of these real rights, is not to 
 be extended to contracts of this kind concluded abroad, in so far as the in- 
 tention of parties to execute a binding contract is clear. [Cf. Erskine, iii. 2, 39.] 
 * This distinction is often not sufficiently attended to. In the judgment 
 of the Supreme Court of Appeal at Liibeck, on 30th December, 1839, reported 
 by Seuffert, 8, p. 2, it is rejected upon the ground that a binding obligation 
 does " vvrtualiter " contain a conveyance of property. In this sense the con- 
 traction of debts may always contain an alienation of property " virtucditer." 
 
234 [§ 62. 
 
 §62. 
 
 Many writers, lastly, liave asked, and answers of very 
 different kinds have been given to the question, what law is 
 to decide whether a thing is to be held moveable or immove- 
 able in such a case as that where rents, or stocks, or a right in 
 security is counted as immoveable by the lex rei sitce, but by 
 the lex domicilii of the creditor or the debtor moveable ? ^ 
 
 This question may be easily answered by the following 
 consideration : the mobihty or immobility of a thing is in 
 itseK a natural quality, which is independent of every positive 
 rule of law, and this quahty cannot be ascribed to incorporeal 
 things. The meaning of a law, by which certain moveable 
 things or certain incorporeal things — e.g., interest upon 
 particular bonds, or rents of property — are to be treated as 
 immoveables, can only be that to a certain extent those rules 
 of law which apply to immoveables, should be also appHed to 
 things which in their nature are moveable, or to incorporeal 
 rights which do not fall under this distinction at all. In this 
 way the different views of authors on the point are explained. 
 Foi instance, if this question arises as to the acquisition of a 
 
 The rule locus regit actum may in tliis case also (cf. supra., p. 139) be ex- 
 cluded by special provision. The form of the binding obligation is to be 
 determined by the lex rei sitm, if it is declared that such an obligation can 
 only be validly contracted before the competent judge. Cf. the Prussian 
 Statute of 24th May, 1853, § 2 : "If landed property is to be divided by sale 
 and purchase, or other contract of alienation, the contract must be concluded 
 before that tribunal, which keeps the register of encumbrances." § 3 : "If 
 these provisions are not observed the contract is null, and therefore has no 
 legal operation between the parties." 
 
 ^ According to BouUenois, i. p. 358, 360-4, in so far as the law of succes- 
 sion is concerned, the lex domicilii of the ancestor decides this question. 
 Bouhier, chap. 29, No. 41, takes the domicile of the spouses as regulative of 
 property belonging to them, in so far as the rights of third parties are not 
 concerned. Christiansens (vol. i. decis. 252, No. 7), takes the lex domicilii 
 creditoris as his principle, in case the legal relation in question concerns 
 "favorem et utilitatem ipsius creditoris vel eorum qui ex ejus capite causam et 
 successionem asserunt." General answers are attempted by Eodenburg, tit. 2, 
 No. 1 ; Burgundus, ii. No. 29 ; Dumoulin, in vet. Consuet. Paris. § 11, No. 10, 
 No. 28 ; Burge, ii. p. 78 ; Story, § 447 ; Demangeat (note to Foelix, i. p. 137, 
 § 64) ; Beseler, i. p. 154 ; Eenaud, i. § 42, p. 106. These writers propose 
 to regard the lex rei sitm only. Foelix involves himself in a contradiction ; in 
 § 64 the lex domicilii is to decide universally, in § 61 the lex rei sitce. 
 
§§62,63.] 235 
 
 rigM to rents by way of succession, then, if there is, according 
 to the provisions of the legislations in question, a universal 
 succession, the lex domicilii of the person in right thereof, 
 ■whose succession is in question, prevails, and the lex rei sitae 
 in case succession to the immoveables, from which the rents 
 are drawn, is held to be a singular succession by the laws 
 recognised at the domicile of the ancestor or at the place 
 where the thing is.^ If, on the other hand, the question is as 
 to the vahdity of an assignation as against the debtor in a 
 bond, then the lex domicilii of the debtor wiU rule, if the 
 assignation is, with a view to his protection, made to depend 
 upon the observance of the forms that regulate the convey- 
 ance of real right in immovables. 
 
 The view here adopted is specially supported by the fact 
 that many systems of legislation give the quahty of immobility 
 to certain moveable or incorporeal things expressly for certain 
 specified legal relations alone — e.g., for the question as to 
 whether they fall under the community of goods in marriage.' 
 
 We shall, then, apply the rule thus developed to the 
 different rights in things ; * that rule being : — 
 i " Eeal rights are to be determined by the laws of the place 
 where the thing was at the time when the act or the event 
 occurred by which the right to the thing is sought to be 
 affected." 
 
 B. Possession. 
 
 §6.3. 
 
 It will scarcely be questioned that the possession of a 
 thing is to be determined by the lex rei sitce, even when 
 
 2 [So decided in Monteith v. Monteith's Trs., June 28, 1882, 19 S.L.E., 740.] 
 The question is to be decided in the same way as to the property of spouses. 
 
 ^ Of., e.g.. Frankfurter Keformation, ii. 3, §§ 1 and 2 (Kraut. Grundriss, § 82), 
 cf., too, No. 49. 
 
 * Many writers here, too, apply the rule resting upon a petitio principii, 
 that vested rights must be considered. By the form which we have given to 
 the general principle, it is self-evident that things which a man has acquired 
 in another country do not cease to be his property by being brought into the 
 territory of some other legislative authority, which lays down different rules 
 for the acquisition of property from those which are observed by the legis- 
 lature of the former territory. For the acquisition of property is judged 
 according to the laws of the place where the thing was at the date of the 
 
236 [§ 63. 
 
 that tiling is moveable. The foundation of possession is 
 the physical control of the thing, and that can only be exer- 
 cised where the thing is.^ The following remarks are all 
 that need be made : — 
 
 1st, As Savigny suggests, the questions as to whether 
 recompense is due, and if so, what, and what penalties can 
 be enforced by private persons for illegal encroachment 
 upon their possessions, are to be determined by that law 
 which is applicable to relations of obhgation arising from 
 delict or quasi delict.^ 
 
 2nd, A legal category which deals with the rights that 
 arise from a protracted possession cannot, as we have 
 aheady mentioned, be applied to things which are only found 
 temporarily in the territory of a State. The right of the 
 possessor to the fruits of the thing, by reason of his trouble 
 expended on it, and the requisites of prescription, are, in the 
 case of moveable things, to be determined by the lex domir 
 cilii of the possessor. An exception is recognised when the 
 moveable thing, by the will of the possessor, has been per- 
 manently settled in a place. Here we recur to the general 
 application of the rule of the lex rei sitce. 
 
 Srd, Special restrictions often arise as regards the com- 
 petency of possessory actions. The French " Code de pro- 
 cedure civile " contains, for instance, this provision (Art. 23) : — ' 
 " Les actioTis possessoires ne sont recevables, qu'autant qu'elles 
 auront d4 formies dans I'annee, du trouble par ceux qui, 
 depuis une annee au moins-itaient en possession paisible par 
 eux ou les leurs, d, titre non pr^caire." We must separate the 
 enactment merely referring to procedure from that material 
 enactment which touches the right of possession ; this article 
 provides : 1st (and this is a material provision as to the law 
 of possession), That a right of possession, unless the posses- 
 sion has lasted for a year, cannot be vindicated by action. 
 This appHes only to things situated in France, but to them 
 without exception. 2nd (and this is a mere rule of process), 
 That unprofitable suits as to possession of shorter duration 
 
 acquisition, and not according to the laws of somei other place to which it 
 tnay afterwards have been brought. 
 
 1 Savigny, § 368 ; Guthrie, p. 193 ; Burge, iii. p. 126 ; Unger, i. p. 175. 
 
 ^ That is not always, however, the lex fori. See infra, §§ 87, 88. 
 
§§C3,64.] 237 
 
 are to be avoided^a provision tliat applies to all suits 
 brought before French courts for the possession even of 
 things that are situated abroad. If, in obedience to this rule 
 of process, a suit for possession of a thing situated abroad 
 be thrown out, it does not bar an action for the same end in 
 the country where the thing is, if the laws of that place do 
 not require the same length of possession, unless the judg- 
 ment in France specially bore that the pursuer had no pos- 
 session at all. 
 
 C. Property. 
 
 §64. 
 
 Isf, The capacity of a person to acquire property is deter- 
 mined by the lex rei sitae. Incapacity to acquire landed 
 property is not a limitation of capacity to act, but of capa- 
 city to enjoy rights, and, therefore, is not subject to the lex 
 domicilii of the person who acquires, but to the law to 
 which the relation in question is subject for other purposes.'^ 
 Those authors who do not make a clear distinction between 
 the capacity to act and the capacity to enjoy rights are com- 
 pelled in this instance to make an exception from the rule of 
 the lex domicilii, which naturally should be preferred ;^ but 
 they cannot justify the exception on the score that they are 
 here dealing with a case of a strictly compulsory law of a 
 pohce character (of. supra, § 33). Not to mention the 
 entirely indefinite conception of a compulsory law, to adopt 
 this view would make it necessary to apply the lex fori, and 
 not the lex rei sitce.^ 
 
 Capacity to act is to be determined, even in reference to 
 immoveables, by the lex domicilii. The view of many 
 
 » Story, § 430 ; Foelix, i. § 58, p. 118 ; Schafifner, p. 68 ; Savigny, § 367 ; 
 Guthrie, p. 182. 
 
 2 Cf. Savigny, loc. cit. 
 
 3 The lex rd dtx is, according to what we have laid down, the only rule for 
 determining the capacity of legal persons to acquire, especially the capacity 
 of ecclesiastical bodies ; and in the same way, the capacity of foreigners 
 to acquire landed property. Judgment of the Supreme Court of Appeal of 
 3rd September, 1836, at Cassel (Henser, Annalen, ii., p. 752): "The Prus* 
 sian laws can only serve as a rule, if the capacity to acquire landed property 
 is restricted to certain classes of persons in Hesse." 
 
238 [§ 64. 
 
 writers, wlio desire that tiie lex rei sitae shall determine 
 such, questions also, is the result of too broad a conception 
 of the capacity to act,* and a consequent confusion between 
 the capacity to test, which under certain circumstances is 
 dependent on the lex rei sitce alone,^ and the capacity to act 
 in the true and narrower sense. If a man is still a minor by 
 the lex rei sitce, but major by the lex domicilii, he could 
 certainly, in any case, incur a personal obligation as to his 
 right of property in estate situated abroad. The purchaser, 
 to take that case, would only require, in such an event, to 
 bring an action for completion of the contract, and then, 
 since decree would fall to be pronounced in that action, the 
 matter would stand in precisely the same position as if the 
 sale had from the first been completely in the power of the 
 owner. The apphcation of the lex rei sites is in this case 
 undoubtedly impracticable. In the converse case, if the 
 seller is major by the lex rei sitce, but minor by the lex 
 domicilii, by applying the former law we should be led to 
 this absurdity, which we have already refuted, that a person 
 who is incapable of incurring an obligation to transfer a real 
 right is yet in a position to transfer this real right itseK 
 (cf.§7). 
 
 'ind, In the same way, the lex rei sitae must determine 
 questions as to the capacity of a thing to become the subject 
 of private ownership ; and also whether that which has no 
 owner becomes the property of him " qui occupat " ; that 
 which is newly constructed the property of him who con- 
 structed it ; or that which is found the property of the 
 finder.^' '' 
 
 * So, Story, § 431. See on the whole question supra, p. 161 et seq. 
 
 ^ That is to say, if succession in immoTeables does not inyolve an universal 
 succession, infra, § 107. 
 
 8 Savigny, § 367 ; Guthrie, p. 183 ; so too the question whether a trea- 
 sure-trove becomes the property of the finder or of the public treasury. 
 
 1 The Prussian Allgemeines Land Eecht, i. 9, § 299-303, 315-323, 304-6, 
 makes considerable deviations from the doctrine of the Boman law as to 
 the requisites for acquiring property by specification (Koch, Preussisches 
 Privatr., i. § 251). It cannot be doubted that if a thing is sold in a place 
 iDy the laws of which it becomes, under the existing circumstances, the pro- 
 perty of the buyer, irrespective of whether the seller was owner or not — 
 for instance, if it is sold in the open market, or in an open shop — this 
 
§ 64.] 239 
 
 Confiscation, too,, whicli has taken place in conformity 
 ■witli the lex rei sitce must be recognised by a foreign State, 
 •without regard to the reason for which it was carried out.* 
 It may be, for instance, failure to pay State duties. Every- 
 thing that is brought into the territory of any State lies 
 under its protection and the power of the laws there recognised. 
 
 Conversely, however, confiscation can only receive effect as 
 regards things situated in the territory of the State itself,^ 
 So, if, at the date of the judgment imposing the penalty of 
 confiscation, the thing in question is not in the country, then, 
 in spite of that judgment, any ahenation by the possessor 
 remains good, and must be recognised even by the State 
 whose officers have decreed the confiscation of the property. 
 If anything shall have been adjudged to the person who 
 found it, this mode of acquisition must also be recognised in 
 a foreign country. 
 
 3rd, The forms of the voluntary transference of property 
 are to be determined by the law of the rei sitce alone, as we 
 have already shown. By French law,^" for instance, a con- 
 tract of sale and purchase produces of itself, without delivery, 
 the transference of the property in the goods sold : by com- 
 
 aoquisition of property must be recognised even by the State to which the 
 real owner belongs, although there may be no such law in existence there. 
 [So L. J.O. Moncrieff and Lord CraighiU in Todd v. Armour, June 8, 1882, 
 19, S.L.k 656.] 
 
 ' The public treasury may vindicate in a foreign country goods which were 
 imported contrary to regulations, and are liable to seizure and confiscation 
 (Hert, iv. 18). It is another question whether the State has a right or a duty 
 to carry into operation a sentence of confiscation pronounced by another 
 State. Cf. infra, § 146. 
 
 ° So Bartolus in L. 1, C. de S. Trin. No. 51 ; Chassenseus Comment, in 
 Consuet.; Burgund. Ruhr. ii. tit. des Confiscations, No. 11; Mevius, proleg. qu. 
 6, § 14 ; Petr. Peckius, de Testament, iv. c. 8, § 8 ; Bouhier, chap. 34, No. 
 28 ; Eiccijp. 553 ; Casarejis disc. 43, No. 17; Danz, i. § 53, p. 179. Although 
 the oldest writers make an exception in the case of confiscation imposed in 
 terms of the JMS commune, this is explained by the idea which prevailed in 
 the Middle Ages, and frequently comes into notice in later times, that the 
 Eoman law was dejure good aU over the world,- and all other systems were 
 mere deviations by statute from it. They do not, even in that case, claim the 
 confiscated property for the sovereign whose courts have imposed it, but for 
 him who is supreme at the place where the thing is situated. 
 
 1" Code Civil, art. 1138. [So too in England.] , 
 
240 [§ 64;. 
 
 mon Koman law delivery is necessary. The property in 
 things moveable or immoveable which are situated in a country 
 where the Eoman law is the common law is therefore not 
 transferred by a contract concluded in France among French 
 people.'^^ But the property will pass, — if the will of the parties 
 remains the same, and if the thing in the meantime, before 
 a third party has become its owner by tradition, is brought 
 into France, — at the very moment when it reaches the terri- 
 tory of French law. Conversely, however, if the thing is 
 situated in France, and the contract is made, say in Hanover, 
 the property will then pass without deUvery if the will of the 
 parties would so have it.^^ 
 
 , According to the principles here assumed, it is a necessary 
 result that, if property has once been validly acquired by the 
 laws of the place where, at the time of the conveyance, the 
 thing was, then that acquisition is not thereafter rendered 
 invalid by the removal of the thing to another place. Accord- 
 ing to Savigny's principle, which holds the place of the thing 
 as the locality of all its legal relations,, it is impossible in 
 strictness to protect rights which have been acquired in any 
 other way than by the rule that vested rights shall be respected 
 — a rule already condemned by him. 
 
 Mh, The acquisition of property by prescriptive possession 
 is plainly connected closely with the prescription of actions for 
 the vindication of property ; the latter will be discussed here- 
 after in this connection and with reference to moveables. Pre- 
 scriptive acquisition must be determined by the lex rei sitce ; 
 this is the universal opinion of the Jurists,^^ and must 
 
 " So, too, Bluntschli D. Privatr. i. § 12, ii. : Burge, iii. p. 751 ; Savigny, 
 § 367 ; Guthrie, 183-4. As to the validity of the contract in spite of the nullity 
 of the transference or creation of the real right, see supra, § 61, note 5. The 
 judgment reported by Seuffert, 6, p. 161, of the Supreme Court of Appeal at 
 Liibeck, on 2lst Oct. 1850, lays stress alone upon the lex loci actus. Cf. 
 judgment of the Supreme Court at Berlin of 6th Feb. 1858 (Striethorst, 20, 
 p. 141) : " When a commission is given in a foreign country, the person giving 
 it is assumed to have wished to subject himself to the laws of that foreign 
 country." 
 
 12 That is to say, if it were sold there by a mandatory living in France, and 
 he not specially forbidden to sell upon credit, or if the price is paid. See 
 supra, § 61, note 5. 
 
 12 Molinseus in L. 1, C. de S. Trin. ; J. Voet, Comment, in Dig. 43-4, § 12 ; 
 
§ 64.] 241 
 
 obviously follow from the principles we have laid down. If, 
 however, the law of the place where the property is gives 
 minors privileges, by which any estate belonging to them 
 cannot be made the subject of prescriptive possession in the 
 ordiaary way, then, no doubt, we are to assume that a law of 
 the kind is meant to be for the advantage of all persons who, 
 by reason of their minority, are under guardianship, and, 
 therefore, even of those who, being resident abroad, are 
 minors there, although by the lex rei sitcB they would be of 
 fuU age.^* 
 
 5th. Questions as to actions relating to property present 
 more difficulties, and a more careful investigation is of 
 importance on this head, both because there is so much 
 difference among the different systems of law as to the duties 
 and obhgations of the possessor as against him who claims 
 the property, and because special restrictions with regard to- 
 moveables have often been introduced in the interest of com- 
 mercial security in general. Very many of these rules, which 
 seem merely to affect the process for the acquisition of the 
 legal right, are truly, as Savigny remarks,-^^ part of the legal 
 relation itself. In strict accuracy an action for property is 
 nothing but the right of property under the special shape 
 which the judicial claim requires it to take. The conse- 
 quence is that, as the right itself is subject to the lex rei sites, 
 so is the action, and the law that prevails at the seat of the 
 court only steps in to regulate the duties of the parties in 
 so far as these are mere matters of procedure. 
 
 The distinction which exists between the nature of move- 
 ables and immoveables is nowhere seen so clearly in operation 
 as in the Rei Vindicatio and actions of the same kind. In 
 the meanwhile we shall first consider the simpler case of 
 immoveables. 
 
 Bouhier, chap. 35, Nos. 3, 4 ; BouUenois, i. p. 364 ; Merlin, E^p. Prescrip- 
 tion, sect. 1, § 3, No. 7 ; Pothier, de la Prescription, Nos. 247, 248 ; Hauss, 
 pp. 33, 34; Giinther, p. 737 ; Miihlenbruch, i. § 73; Massd, pp. 102, 103 ; 
 Gand, Nos. 731-3 ; Burge, iii. p. 221 ; Wheaton, § 86, p. 118 ; Wachter, ii. p. 
 386 ; Oppenheim, p. 398 ; Schaffner, p. 75 ; Foelix, i. § 63 ad fin.j and 
 Demangeat's note. 
 
 1* Of. the remarks with reference to restitution (pp. 172-73). Gand, Nos. 
 731-733, is of a different opinion. 
 
 15 § 361, pp. 146, 147 of Guthrie. 
 
 R 
 
242 [§ 64, 
 
 The lex rei sitce is tlae rule not merely as to the essentials 
 of an action claiming property, or any action on thg same 
 model founded upon some particular kind of possession {e.g., 
 the Actio Publiciana of Koman law), but also determines the 
 obhgation of the possessor to keep the subject of the action 
 scatheless, or to answer for its loss ; to account for the increase 
 and not to part with it fraudulently ; and at the same time 
 the right which he has to demand reimbursement of his 
 expenditure on it, and to enforce this by detention ; to take 
 certain of the increase for himself, or to demand repayment 
 of the price he paid for the property. This view derives 
 special support from the consideration that, if possession and 
 the rights arising from it are to be determined by the lex rei 
 sitcB, the view which assumes this, but makes the lex fori 
 decide the questions we have suggested, falls into a self- 
 contradiction ; for if the possessor, for instance, has a right 
 to consume the increase before the action is raised, or before 
 any mala fides arises, without being boimd to make repara- 
 tion, the result is that the pursuer can have no claim to it.^^ 
 Accordiag to the view which takes the lex fori as regulative, 
 the pursuer wUl have a dangerous option iu his hands, assum- 
 ing that a real action can be brought iu the forum rei sitce 
 and in the forwm domicilii of the possessor as weU.^' 
 
 An action for damages, or for the value of the article vindi- 
 cated, against a person who, to prevent the success of a claim 
 made against another, maUciously, and in spite of having no 
 right of possession in the thing, throws himself into the action 
 
 '' Savigny is of the opposite opinion, § 367 ; Guthrie, pp. 186, 187. See, 
 on the other hand, Burge, iii. p. 126 ; Hokchuher, i. p. 66 ; and the essay 
 in Seuffert's and Gliick's papers, for the application of law, vol. xiv. p. 187, 
 there cited. 
 
 " This is of special importance if, in different provinces of one country, 
 the Prussian A. L. E. and the common Boman law are recognised, and at the 
 same time it is possible to institute actions in foro domicilii for recovery of 
 immoveable property — e.g.,in Hanover (Allgem. biirgerl. Processordnung of 8th 
 jSTov. 1850, §§ 5, 8). For instance, by the Prussian A. L. R. i. 7, § 210, it 
 is only the hona fide possessor who has the jus tollendi in relation with the 
 Im^ensm Volwptua/rim, by Roman law the mala fide possessor has it also 
 (L. 37, D. de R. V. 6, 1) ; on the other hand, by the Prussian law, i. 7, § 189, 
 the hona fide possessor has right to all the increase during his possession 
 (Koch, Privatr. i. § 170). Other important differences are to be found in 
 the Prussian A. L. R. i. 7, §§ 191, 192 and § 219. 
 
§ 64.] 243 
 
 (Uti se obtulit), is a pure question of a fine for a matter of 
 procedure arising quasi ex delicto, and consequently to be 
 determined by the lex fori. But it is different with the 
 obUgation of him qui dolo desiit possidere, in so far as his 
 possession was given up before litis-contestation.^^ We find 
 confirmation of the latter statement in the fact that, by the 
 general theory of the Middle Ages, the forum rei sitce con- 
 stituted an exclusive jurisdiction, and in more modem systems 
 has been retained, especially ia State treaties for insuring 
 mutual legal remedies.^' If, therefore, an action shall be 
 raised ia some other court than that where the thing is 
 situated (which is quite exceptional), all the less can we 
 assume that the laws recognised at the seat of the court are 
 to have any effect upon the material relations of the possessor 
 who is pursued.^" 
 
 With the vindication of moveables it is quite the reverse. 
 The possessor can take these from one place to another at 
 pleasure, and the stay of any article in any particular place 
 seems, as a rule, to be merely accidental and temporary. 
 Therefore, without any regard being had to the temporary 
 stay of the thing in another place, the forum domicilii is 
 always recognised and considered as regulative.^^ 
 
 " L. 25-27, D. de Bei Vin. 6, 1. 
 
 ^' See the numerous citations in Wetzell, p. 355, § 41, notes 47, 48 ; cf. 
 J. Voet, Comm. in Dig. 5, 1, No. 77; Vattel, ii. ch. 8, § 103; Burge, iii. 
 pp. 125 and 397. (The courts of common law in England and America 
 declare that they are incompetent to deal with real rights connected with pro- 
 perty that is not within their jurisdiction. Wheaton, § 86, p. 118; Story, 
 .§§ 551, 552.) Code de Proc^d. Civ. art. 59. German treaties collected by Krug, 
 pp. 40, 41. [Civ. Proc. Ordn. for the German Empire, § 25, is to the same effect.] 
 
 2" It is the natural result of this reasoning that the lex rei sites determines 
 the prescription of actions in the case of immoveables. As a rule, too, it will 
 coincide with the prescriptive acquisition. Yet some — as, for instance, Story, 
 §§ 576 a;nd 582 — although they would determine prescription for the pur- 
 poses of acquisition by the lex rei sitae, would have the lex fori rule the case 
 of negative prescription. Against this, see infra, note 33 and § 79. Yet, 
 since by English law actiones in rem, which have to do with immoveables, 
 can only be brought m foro rei sitie, this view in its result coincides with 
 that taken by us, in so far as English and American tribunals are concerned. 
 — Story, § 581 adfm. 
 
 21 Even according to Koman law in its modern form, the forum rei sites is 
 to be limited to such moveables as are to remain in some particular place, 
 according to the intention of the possessor, either expressed or reasonably to 
 
244 [§ 64. 
 
 This circumstance is important for the interpretation of 
 laws as to the vindication of moveables to this extent, that 
 all limitations of the vindication introduced for behoof of the 
 possessor, and not those alone which belong to a permanent 
 relation of possession, are applicable in all real actions for 
 delivery of moveables raised in foro domicilii. E.g., the 
 rule, " One hand must help the other," must be applied in 
 the forum domicilii, although the thing claimed may be 
 temporarily situated in some other country where this rule 
 is not in force ; and in the same way the exclusion of 
 the right of recovering papers . from the possessor. But 
 besides these limitations, those, too, which, limiting the right 
 of action, are inseparably involved in the acquisition of the 
 possession according to the laws of the place where it was 
 acquired, may be invoked by the possessor. (Such rights 
 often appear. in the form of limitations of the right of action, 
 by way of regulations as to procedure ; e.g., " Things sold in 
 open market are not, as a rule, subject to vindication." 
 If one has bought an article in open market abroad where 
 this rule is in force, he may appeal to it im, foro domicilii, 
 a,lthough there is no such limitation to be found there.)^^ 
 
 be inferred, and therefore cannot be extended to goods upon a journey or 
 ships put into port. It is only of things of the first kind that it can be said 
 they are " res in aliquo loco constitutes." It cannot be said of the latter 
 kind, and that is the test demanded by L. 3, C. ubi in rem actio, 3, 19, the 
 passage by which the forum rei sitce was introduced. (Nov. 69, c. 1, applies 
 only to the forum delicti commissi, and under this fall cases of disturbance 
 of possession. The forum rei sitce is good for immoveables only, according 
 to the Hannov. allg. biirgerL Processordn. § 8. Cf. too. Code de Proc^d. Civ. 
 art. 2). 
 
 ^2 The notion that such limitations upon the right of action as, " One hand 
 must help the other," or, " You must look for your credit where you left it," 
 are given to the possessor of the thing claimed as material rights, is confirmed 
 by the shape which these rules — belonging originally to German law, and 
 arising from the peculiar shape which the process in such cases assumed — 
 have taken in modem systems of legislation, where they bind the bona fide 
 possessor to restore the thing only upon payment of the price he himself 
 gave, or assign him the right of possession altogether. (Cf. Prussian A.L.B. i. 
 15, § 25 : " If any person comes into possession of a thing that has been lost 
 by the proper owner or possessor, through an onerous bargain with a person 
 who is not open to suspicion, he must restore it." § 26 : "He may, however, on 
 the other hand, claim in return aU that he gave for it." Austrian Statute- 
 Book, § 367 : " There is no action against a bona fide possessor of a move- 
 
§ 64] 245 
 
 That is in consequence of the rule given ahove (p. 235) as 
 of universal application in tlie law of things. This rule is 
 the only one that can be applied, too, if the action for 
 recovery of the thing happens purely by accident to be in 
 foro domicilii — i.e., if the thing is intended to remain per- 
 manently ia some particular place (res in aliquo loco consti- 
 tuta, L. 3 ; C uhi in rem actio, 3, 19). It is also true in 
 cases where the possessor cannot appeal to the restrictions 
 imposed upon such actions by the laws of his domicile — when, 
 without any volimtary prorogation, or any jurisdiction given 
 revindications, the real action for delivery of the moveable 
 article can be, and, as a matter of fact, is, brought in foro rei 
 sitcB. In such cases he cannot appeal to the Umitations of 
 the lex domicilii, because the plea that a vindicatio is, as a 
 rule, brought in foro domicilii, and that, therefore, these 
 limitations must have place, is rejected by the lex fori ; but 
 if the lex fori makes provision for the conflict of territorial 
 laws, the judge must foUow its instructions (cf. supra, p. 61) ; 
 {e.g., if a thing is stolen from a person in country A, where it 
 is competent, as in the common law of Eome, to bring a 
 vindicatio of any moveable against any third party who may 
 be in possession of it, an action may be brought in country 
 A while the thing is still there, as in the forum rei sitae, 
 without the necessity of any voluntary prorogation or juris- 
 diction revindicatione ; and if this is done, the possessor 
 cannot appeal to such Kmitations of the vindication as are 
 recognised only in his domicile and not in land A). 
 
 On the other hand, the defender cannot avail himself of 
 any such limitations of the right of action, if they are not 
 recognised either at the place where the thing was acquired, 
 
 able thing if he can show that he came into possession of it either at a public 
 auction, or from a tradesman dealing in things of that kind, or paid a price 
 for it to anyone to whom the pursuer himself had intrusted it for use, or for 
 custody, or for any other purpose. In these cases, the hona fide possessor 
 has acquired the property of the thing.") The object of such restrictions 
 upon vindication is the special security of the traffic of the country where 
 they exist. They comprehend, therefore, all moveable things which are sub- 
 ject to commerce in that country — i.e, everything the possession of which is 
 acquired in any such way in that territory. (To this head belongs the pro- 
 vision of the Code Civil, art. 2279 : " En faU de meuhhs, la posseision voMt 
 atre.") [Cf. Todd v. Armour, cit. sup. p. 239.] 
 
246 [§ 64- 
 
 or at the place of his domicile, although they may be recog- 
 nised at the place of action. The rule, that under certain 
 circumstances it is incompetent to vindicate moveables, does 
 not mean that the law will hold such an action, if it be raised* 
 as inadmissible on grounds of morahty or pubUc interest, as 
 an actio injuria/nmt, cestimatoria is declared inadmissible 
 because no one should allow his honour to be salved with 
 money ; the simple object of limiting the right of vindication 
 is the security of the bona fide possessor of a thing that does 
 not belong to him, and can in reason only be applied to things 
 that have been the object of legal commerce in the country. 
 
 The view now taken by us will in many cases give results 
 in conformity with that which takes the lex fori as its 
 groundwork, for actions for delivery of moveables are as a 
 rule brought in foro domicilii. It differs from it, however, 
 in so far as it assigns no weight to the purely accidental 
 circumstance what court may be competent, in consequence, 
 perhaps, of the right of revindication, or by a voluntary pro- 
 rogation of jurisdiction ; and it also avoids the contradiction 
 that takes place when the lex fori as such is expressly 
 applied, viz., that the rights of the pursuer and the possessor, 
 wMch stand in indissoluble connection with each other, 
 should be determined by different laws, the former by the 
 lex fori, the latter by the lex domicilii or the lex rei sitce.^ 
 
 The laws of a place where a moveable was acquired are 
 never applied as such in questions of prescriptive possession 
 and the prescription of action (cf. supra, p. 230). In the 
 case of those which have a permanent situation in some 
 particular place, the lex rei sitae rules ; in all others, the lex 
 domicilii of the possessor.^* 
 
 There are, however, most discordant opinions on this 
 question. According to one, the lex domicilii of the possessor 
 always rules. This view ^^ will in most cases coincide in its 
 
 ^ The limitations upon vindication are also material rights of the possessor. 
 Cf. sujyra, note 16. 
 
 2* So too, Mass6, pp. 102, 103. 
 
 25 J. Voet in Dig. 43, 4, No. 12. Pothier, Traits de la Prescription, No. 
 242. Merlin, E^p, Vo. Prescription, sect. 1, § 3, No. 7. Hauss's theory 
 (p. 34), that the lex dorrviciUi of the owner rules, has very little influence. It 
 can only proceed upon the untenable assumption that the owner can only be 
 
§ 64.3 247 
 
 results witli our own. Others -would apply the lex rei sitae 
 universally.^^ This view is based upon the consideration 
 that the foundation of prescription is enduring possession, 
 and this must be determined according to the lex rei sitcBp 
 It is true that it is a permanent possession that is the 
 foundation of prescription ; the laws therefore which regulate 
 prescription, must have reference to some other possession 
 than that which is merely for a time exercised in our 
 country.^* If a thing has been temporarily in different places, 
 then, according to the opposite view, there must be a separate 
 calculation of the proportional time during which the thing 
 remained in each of these different places, and this, then, must 
 be brought down to the period of prescriptive acquisition or 
 the prescription of actions required at the place where the 
 thing happens to be last of all, just as was required by 
 Eoman law in the prescription of landed property, in case the 
 pursuer and defender happened to have Hved in different 
 provinces during part of the period of prescription ; ^® e.g. in 
 the place where the thing happens to be at last, three years 
 is the prescriptive period, in a place where it was before that, 
 two years are required, and one year in a third, where the 
 thing was for some time. In such a case, two thirds of a 
 year during which the thing was in the one place, and one 
 third of a year during which it was in the other, must each 
 be reckoned as fully a year as that one year which we will 
 suppose to have passed since the thing was brought to 
 the country where the prescriptive period is three years. 
 This calculation makes it indispensable that all the places in 
 
 deprived of his property by the operation of the laws of his domicile. By 
 this means, it might be that, under certain circumstances, an intolerable 
 privilege might be conferred on foreigners, e.g., if it should be that there was 
 no such thing as prescription by their law, or only under conditions very hard 
 to realise. 
 
 28 So Molinseus in L. 1, C. de S. Trin. ; Giinther, p. 737 ; Miihlenbruoh, 
 i. § 73 ; Oppenheim, p. 398 ; Wachter, ii. p. 385. 
 
 ^ Savigny, § 367 ; Guthrie, p. 186 ; Unger, p. 176. But both of these 
 authors speak of prescription only, and not of limitation of actions. 
 
 ^ The question, whether at a particular moment of time one became 
 possessor is of course to be settled by the law of the place where the thing 
 then was ; and the lex rei sitce may indirectly be of great importance. 
 
 2» L. 12, C. de pr«sorip. 7, 33, Nov. 119, c. 1. 
 
248 [§ 64 
 
 •which the thing has been should be known, and also the 
 length of time during which it was in each, and, therefore, is 
 in many cases {e.g., in the case of goods on a Toyage, or 
 travellers' baggage) impracticable. Those authorities who 
 propose that the lex rei sitae should rule, almost all take the 
 legal system of the place where the thing was last situated 
 as decisive ; but in that way that system has an influence 
 attributed to it for the period during which the thing was 
 not within its territory,^'' and it would be possible that an 
 article, which had not yet been fuUy acquired by prescription, 
 by a capricious removal to some other place, might be at 
 once transferred into the property of the possessor. It may, 
 no doubt, be necessary, according to the view we have adopted, 
 to reckon up the different periods, if the possessor should 
 change his domicile, or the thing be removed to another 
 place, in those exceptional instances where the lex rei sites is 
 to be applied. But, on the one hand, the^e changes will be 
 far less common ; and on the other, the point of time at which 
 a man has acquired a new domicile, or a thing permanently 
 settled in one place was removed to another, can, as a rule, 
 be accurately determined. 
 
 Lastly, there is a theory by which a marked distinction is 
 drawn between the limitation of real actions and the pre- 
 scriptive acquisition of a right ; while the latter, according to 
 the character of the thing, is to be determined either by the 
 lex doTnicilii of the possessor or the lex rei sitae, the former, 
 as being a rule in hmitation of an action, and touching 
 merely the question of procedure, is subject to the law of the 
 place where the process depends.^^ But we have seen already 
 that very many material rules of law are disguised as mere 
 rules of procedure, and this is the case with the hmitation of 
 , actions. It is not by any rules of process that it is made 
 incompetent to raise an action after a certain period. If it 
 were so, the limitation would first come into existence with 
 the action, and it would not be for the judge to say by his 
 
 5" For the same reason we cannot agree with Schafifner's view (pp. 84, 85), "by 
 which these laws only are considered in whose territory the conditions of 
 prescription first came into existence. 
 
 21 Story, § 576 and § 582. This view is adopted by many with special 
 reference to the prescription of personal claims. 
 
^64,65.] 249 
 
 sentence, as is the case, whether it had ahready heen estab- 
 lished.^^ There is accordingly a rule recognised by the older 
 authorities : " prcescriptio pertwuet ad decisionem litis, non 
 ad ordinationem, causce." ^^ 
 
 B. JURI IN EB AlIENA. 
 
 §65. 
 
 The lex rei sitce is the general rule for all other real rights, 
 just as for the right of property. But there also, just as ia 
 the case of property, there are exceptional cases in which the 
 lex domicilii of the possessor is appHcable.^ Jura in re 
 aliena are merely limitations upon the right of property, and 
 therefore depend on the same law as determines that right. 
 Any exception can be of but little importance. Jura in re 
 in single moveable articles can constitute but rarely the 
 subject of an action in which there can be any discussion of 
 the questions of international law.^ It is only the law of 
 pledge that wiU require a more thorough discussion, while 
 the rules as to praedial servitudes, the personal servitudes 
 over moveables and immoveables, emphyteusis, and superficies 
 are clear.^ 
 
 Savigny notices also the peculiar real rights which the 
 Prussian law gives to the hirer, or the possessor on a similar 
 title for his own behoof, of things belonging to others, even as 
 against third parties in possession of them ; and he is of the 
 opinion that such a right in a moveable can only validly 
 arise while it is within the territory of the Prussian A. L. E., 
 and that in any other coimtry which does not recognise such 
 real rights the thing could not be vindicated against third 
 parties in possession of it. The first proposition must, no 
 doubt, be conceded, but not the second. Common Roman 
 
 ^^ This is the consequence of the nature of an action, its object being to 
 declare rights already established, not to create new rights. 
 
 33 Of. infra, § 79. 
 
 * See supra, p. 231, on the question who is to be held as possessor in the 
 sense here meant. 
 
 " See infra, in the subject of family law as to ususfrudus over an entire 
 estate. 
 
 3 Cf. Savigny, § 368 ; Guthrie, 187, 188. 
 
250 [§ 68» 
 
 law assuredly recognises servitude rights of use in individual 
 moveables, wliich can be followed out as against third parties 
 in possession. The acquisition of possession in a country 
 where the Roman law prevails gives no protection against the 
 action brought by one in right of such a servitude, and does 
 not defeat the right that originated in the territory of the 
 Prussian A. L. R. The matter, however, would stand differ- 
 ently if the thing were subsequently possessed in a country 
 where the rule as to moveables is possession vaut titre." 
 In this case no real right can co-exist with that of the pos- 
 sessor, and so aU are wiped out. Savigny's reasoning would 
 end in the result, which he himself rejects, that if property 
 can only be transferred in our country by delivery, then no 
 action will lie upon a right of property acquired abroad by 
 virtue of a mere contract without delivery, since our law 
 knows nothing of property originating in a contract without 
 a contemporaneous delivery. 
 
 The right of pledge is the real right in a thing that can be 
 made good against a third party in possession, with the object 
 of compelling satisfaction of a personal obligation. A right 
 of pledge is, therefore, dependent on — 1st, the existence of a 
 valid obligation, and that by the law to which the obUgation 
 is subject ;* 2nd, the law of the place in which the thing 
 happened to be at the time of the legal transaction or occur- 
 rence on which the right of pledge is founded. The first of 
 
 * The law of obligation recognised at the place where the thing is is only 
 of moment in so far as it may be impossible, by reason of the theory of that 
 law that it is Ulegal to satisfy the obligation in question, to constitute a right 
 of pledge, although by the lex loci contractus the obligation may be quite 
 valid ; if, for instance, a security should be given over an estate in this country 
 in satisfaction of a gambling debt. The cases are the same as those in which 
 it would be incompetent to raise action in our courts (Burge, iii. p. 390). 
 As the pledge seems to secure the obligation, it is only valid in so far as the 
 personal obligation is legal according to the law regulating it ; and in the 
 same way, it only covers such interest as is permitted by the lex loci con- 
 tractus, although by the lex rei sites a higher rate might be allowed (Burge, 
 iii. p. 395). See, too, the judgment of the Supreme Court of the United 
 States, reported there. No doubt the case is different, if by the lex rei sites 
 the validity of the pledge is declared to be independent of the validity of the 
 obligation. In that case we have not to do with any true right of pledge, 
 but with a right to a determinate or indeterminate return from the estate, 
 Cf. Baumeister, Hamburgisches Privatr. i. p. 173. 
 
§ 65.] 251 
 
 these conditions belongs to the law of obligations ; it is the 
 latter only witli which we propose here to deal.* The pre- 
 vailing view, then, is, that the existence of the right of pledge 
 is in general determined by the lex rei sitce, although many 
 authorities, simply on the ground of the fiction of the situa- 
 tion of moveables at the domicile of the owner or possessor,* 
 make an exception in the case of moveables, and judge of the 
 conditions of the origin of the right by the lex domicilii of 
 the pledger.^ 
 
 There is no reason for departing from the general rule as 
 to the application of the lex rei sitce, since it does not 
 require any permanent relation of possession to originate the 
 right of pledge.* In many cases, however, the view we have 
 taken wiU. coincide in its results with that which makes the 
 lex doTnicilii of the debtor the rule ; for moveables can be 
 brought into the territory of that country to which the 
 debtor personally belongs, and then, if the legal relation 
 from which the pledge takes its rise continues, these move- 
 ables will come within its scope in obedience to the lex domi- 
 cilii. The following example may be taken : It is competent 
 by Roman law for a man to pledge his whole estate — i.e., 
 everything which is in bonis of him at the present time, and 
 everything which may come to be his. By common Prussian 
 law such a universal pledge is invalid. If, then, a person 
 domiciled, let us say, in Hanover, where the common 
 Eoman law is recognised, pledges his whole property, present 
 and future, and owns a picture gallery in Berlin, the credi- 
 tor can make no claim in virtue of the pledge over that 
 gallery at the time ; but so soon as it is brought to Hanover 
 
 ' See supra, § 61, note 5, as to the question whether a contract of pledge, 
 that does not by the lex rei sitce create a real right, gives a personal claim to 
 the executrix of such a right against the other party to the contract. The 
 provision of the Prussian A. L. E., i. 20, §§ 402, 403, does not negative it. It 
 is only meant to apply to the ordinary case of a contract concluded between 
 natives at home. 
 
 8 So J. Voet in Dig. 20, 2, No. 34 ; BouUenois, i. pp. 833, 4 ; Matthseus 
 de Auctionibus, i. cap. 21, No. 41. 
 
 ' As to the application of the lex rei sitce to immoveables, see, besides 
 the authors named, Kodenburg, ii. p. 1., c. v. § 16 ; and those cited in Note 8. 
 
 8 Wachter, too, iL, p. 389 ; Giinther, p. 737 ; Mass6, ii. p. 96 ; Foelix, i. 
 p. 134. 
 
252 [§65. 
 
 it falls under the general pledge, if the pledger is still owner 
 of it.s 
 
 Doubts have also arisen in connection with the so-called 
 statutory or tacit rights of pledge — i.e., these instances in 
 which a right of pledge is by the law of the land declared to 
 arise at the origination of the legal relation, and independ- 
 ently of any declaration of will by the parties. Does, then, 
 such a right come into existence if the lex rei sitce attaches 
 it to the particular legal relation in question in every case, 
 and without regard to the lex loci contractus or the lex 
 domicilii of the parties ? Or does it arise only when the 
 lex loci contractus, or the law that has to determine the legal 
 relation in other aspects, conjoins a tacit right of pledge 
 with the legal relation in question ? Or does it only arise 
 Tvhen both systems, both that of the lex rei sitce and that 
 which regulates the legal relation, for the security of which 
 the pledge is given, are at one upon the point ? 
 
 Each of these theories is adopted by different authors. 
 The first is supported by the universal application of the lex 
 rei sitce in the law of things ;^'' the second upon a tacit 
 contract of pledge between the parties.^^ We cannot adopt 
 either of them. We reject the second, because a tacit con- 
 tract is something quite different from the contract which is 
 said by a fiction to take place here. The tacit contract 
 always depends upon a declaration of wiU, although that may 
 only be inferential from the transactions of the parties. The 
 statutory right of pledge, however, arises spontaneously, 
 although neither of the parties knew that such a right was 
 
 9 A. L. R., i. 20, §§ 411, 412, 402-8, 109-11. 
 
 i» Cf. Rodenburg, ii. pars i. c. 5, § 16 ; J. Voet in Dig. 20, 2, No. 34 ; 
 Giinther, p. 737. Cf., too, the judgment reported in the official journals of 
 the judge of the Supreme Court of Baden, vol. xiii. (1852-53). By this 
 judgment a foreign married woman was refused the statutory right of pledge 
 in real estate belonging to her husband in Baden, because married women 
 who are foreigners can only make good a right of pledge under the same con- 
 ditions as a native married woman can ; and these conditions, among which 
 was an antenuptial marriage contract in public form, were awanting in the 
 case under consideration. 
 
 ^^ It is a condition of this second theory that there shall be no special form 
 laid down by the lex rei sitw as essential for the origination of a right of 
 pledge — e.g., delivery of a moveable article or registration in public records. 
 
§65.] 253 
 
 involved m their contract, or even although they believed 
 that the contrary was the case.^^ 
 
 If this right of pledge were to be referred to a tacit con- 
 tract, it might always be defeated by means of the same legal 
 remedies as those by which the dissolution of a contract is 
 brought about. That, however, is certainly not the case — 
 e.g., with reference to the statutory right of pledge given by 
 the Koman law to persons under guardianship over the 
 estate of their guardians, or to children over the estate of a 
 parens hinuhusP But it is just as unsatisfactory to hold 
 that the lex rei sitae alone shall give a statutory right of 
 pledge as an accompaniment of the legal relation in question. 
 The statutory right of pledge depends upon this considera- 
 tion, that the law holds the relation in question worthy of 
 special protection, and in need of it. If, then, that relation 
 does not fall under the lex rei sitae, but under a different law, 
 which does not consider this protection necessary, it is not 
 to be assumed that that protection was intended to have 
 been given by the lex rei sitae in spite of the other law 
 — e.g., if the law which regulates the administration of a 
 ward's estate limits the power of the guardian, so that the 
 fiction of a statutory right of pledge over his estate is unne- 
 cessary, it would seem strange that the law of another country 
 should add a statutory right of the kind to the other safe- 
 guards which it provides ; and it would be specially incon- 
 venient if, for example, the law of the domicile required a 
 special bond of caution from the guardian,^* while at the same 
 time his estate abroad was burdened with a general statu- 
 tory pledge, from which the law of his domicile released him.^^ 
 
 ^2 But there must be no declaration of will excluding the right of pledge. 
 
 » Cf. PucMa Pandects, § 200. 
 
 ^* Cf. judgment of Court of Appeal for the Ehine Provinces at Berlin on 
 20th February, 1843 (Volkmar, p. 118) : " The 2135th Article of the Code 
 Napoleon requires that a native guardian's administration should be accord- 
 ing to native laws. If a foreign country recognises the right of pledge, but 
 confines it to his own territory, it is not to be extended over the boundaries." 
 
 1* Fcelix, i. p. 150. If the transaction in question falls under the lex rei 
 sitcB — as is generally the case, for instance, if one has lent money to repair 
 a house that has fallen into ruin — it is enough, of course, that the lex rei 
 sitce should give a statutory right of pledge. The foreign lender has the 
 statutory right of pledge necessarily involved in such a loan by the provi- 
 
254 [§ 65, 
 
 But tlie right of pledge tliat is given by the lex rei sitcB can- 
 not be thrown out of account altogether merely because the 
 person for whose behoof it exists belongs to another State. 
 For instance, the claim of a married woman who is a 
 foreigner, over her husband's estate, on account of what she 
 herself has brought as dowry, cannot be resisted if this right 
 of pledge exists also by the lex domicilii of the spouses.^® 
 
 Statutory rights of pledge over moveables are to be deter- 
 mined by the same rules, and the only speciality to be noted 
 is, that a statutory right of pledge does not then cease to 
 exist if the moveable is taken into a territory whose system 
 of law does not recognise a right of pledge at all or at least 
 in the circumstances that exist ; it does, however, cease if 
 within the limits of the latter territory, and by its laws, any 
 
 sions of Eoman law (L. 1, D. 20, 2), if the house is in a country that 
 recognises the common Roman law. Cf. infra, Law of Obligations, § 66, 
 note 26. 
 
 18 French practice (cf. the judgment of the Royal Court at Amiens on 18th 
 August, Sirey, 34, p. 2, page 482) and many French authors, such as Gand, 
 No. 716, Mass6, 331, refuse wives and minors who are foreigners the statu- 
 tory right of pledge given to such persons over real property belonging to the 
 husband or guardian situated in France, on the ground that the hypothhque 
 .legale belongs to droits civils, to which no foreigner can make any claim. 
 We must, however, throw aside this exception to the rule, adopted univer- 
 sally for international commercial relations, that foreigners and natives have 
 jequal capacity for rights in the eye of the law ; and in more modern times 
 authors of repute have declared against it — e.g., Demangeat, in his note to 
 Foelix, i. p. 151 ; The Repertoire of Merlin and Troplong (see the quotations 
 in Mass^, loc. cit). The enactment of the 2128th Article of the Code Civil 
 Tests upon a confusion between the executorial force of a deed and the 
 ■establishment of a right of pledge by means of a deed. By older French 
 law, every assignation in security contained in a deed attested notarially, and 
 also in any private document adopted before a notary, created, ipso jure and 
 without the necessity of any special stipulation, a pledge over the whole 
 estate of the debtor, in consequence of the general executorial force of the 
 deed (Zacharia, ii. § 204, note 6). One does not see why the owner, who can 
 alienate his property and burden it with servitudes by a legal transaction 
 abroad, is disabled from granting a security over it by means of a deed pub- 
 licly executed abroad. Cf. Demangeat in his note on Foelix, ii. p. 221, We 
 must not confound this case with that where, in order to constitute a right of 
 security over a husband's property, an entry in the register is required to give 
 publicity to the marriage. (Of. the judgments of the Royal Court at Montpelier 
 .flf 15th January, 1832, Sirey, 23, 2, p. 301 ; and of the Court of Appeal at 
 Paris of 16th January, 1824, Sirey, 35, 2, p. 482, note I. p. 483.) 
 
§ 65.] 255 
 
 person acquires a real right in the thing {e.g. by possession, 
 if the rule "possession vaut titre " obtains there), that is incon- 
 sistent with the antecedent right of pledge. This doctrine is of 
 special importance in the case of ships, since there is a statu- 
 tory right of security given by many legal systems in respect 
 of services done for the ship's benefit, ^^ to enable those 
 who have rendered these services to recover ; other systems 
 do not give it. According to the opposite view,^^ any imr 
 pledging by maritime law would give the creditor no security, 
 and our view is, therefore, recommended by the exigencies of 
 commerce.^' 
 
 Savigny ^^ calls attention to the following case : by the 
 Prussian A. L. R., a right of pledge in moveables arises only 
 by delivery of them to the creditor; by the common law 
 of Rome, it is created by an informal contract. A move- 
 able thing has then been pledged by an informal contract 
 in a country where the common Roman law is the rule, but 
 is subsequently brought into another country, where Prussian 
 law is in force ; according to Savigny that thing can not be 
 claimed by the creditor, because the right of pledge created 
 by bare contract is quite a different legal institution from 
 that which may be created by dehvery of the thing itself, 
 and the two institutions have nothing more in common than 
 their name and their general object, and therefore the 
 creditor would be appealing to a legal institution unknown 
 to the law of Prussia. If this reasoning were sound, then, 
 if we suppose that some system of law held that a ship 
 could not be vaHdly impledged except by a written docu- 
 ment, a contract of pledge vaHdly concluded by word of 
 mouth in some other State whose laws permitted it to be 
 
 " Cf., e.g., Code de Commerce, art. 191-4. 
 
 18 The view taken in the text is confirmed by the judgment of the Supreme 
 Court of Louisiana reported by Story, § 327a. The case of vindication of 
 goods sold (" stoppage in trandtu," as it is termed in England) is analogous, if 
 by the law of the country where the thing was at the time of the sale the 
 property is not passed, and the goods are then claimed by the seller at a place, 
 by the law of which the property is passed. See the decision of an English 
 court upon this point in conformity with the view in the text. Story, § 402, 
 note. [IngUs and Underwood, 1, East. 515]. 
 
 19 Cf. Story, § 402a. 
 
 2" § 368, Guthrie, p. 191. 
 
256 [§-65: 
 
 so constituted, would not be recognised in the former State, 
 But, putting aside the very dangerous consequences of this 
 doctrine, Savigny's whole reasoning rests, as we have noted, 
 upon that ambiguous rule, that a right which could not have 
 been created by the law of our country in the foregoing cir- 
 cumstances, should not be recognised by us. There can 
 always be found in one State legal institutions analogous to 
 those of others, although they may differ from them widely 
 in details.^^ Are these institutions then identical or entirely 
 different, and not to be mutually recognised ? This question 
 is not to be answered thus, that wherever you have any 
 difference at all, there is to be no recognition,— a result which 
 would lead to that general exclusion of all foreign rules of 
 law, a result which Savigny himself attacks. It is not easy 
 to see wherein lies the distinction between the present case 
 and that in which property is passed in one country by 
 delivery and in an other by a bare contract, in which latter 
 case Savigny recognises that the property acquired by virtue 
 of the bare contract is to be treated as operative in the other 
 country also ; ^ in the one case, as much as in the other, we 
 are dealing with various forms of the constitution of real 
 rights. But it is true that in the case put the view we have 
 adopted will in its result coincide with that of Savigny. The 
 Prussian A. L. R. provides besides,^' that by a voluntary 
 surrender of the possession of a corporeal thing given in' 
 pledge the real right is absolutely lost. If any one acquires, 
 or has the possession of a moveable thing, which has been with- 
 drawn not involuntarily from the possession of the person 
 who had right to it, the right so acquired is irreconcilable 
 with the right of pledge, and therefore does away with it. 
 
 In this way, too, we can dispose of a remark of Thol,^* who 
 thus attacks the general application of the lex rei sitoe to 
 real right in moveables : " Two Prussians contracting, who, 
 for instance, wished to constitute not a pledge (Faustpfand) 
 but an hypothecation over a thing, a right which Prussian 
 
 *i For instance, paternal power gives in one country different rights over 
 the child from what it gives in another. 
 
 22 § 368, Guthrie, p. 192. ' 
 
 23 I. 20, §§ 253-5. 
 
 2* Introd. § 84, note 9. 
 
§ 65.] 257 
 
 law does not recognise, need only take the thing for a short 
 time over the frontier." ' But if a system of law recognises 
 only a pledge in moveables, then any third person in posses- 
 sion has a right that absolutely negatives their right. ^^ 
 
 The intention of the parties will rule in a question with the 
 pledger as to the material subject of the pledge. We must 
 have recourse to the same principles as are recognised in the 
 interpretation of obligatory contracts to determine the mean- 
 ing of accessory provisions,^" e.g., questions as to what profits ' 
 the creditor may claim.^" If we are dealing with immove- 
 ables, the lex rei sitce must, in general, rule. 
 
 The special limitations of actions upon pledge, and the 
 pleas competent to the possessor, are subject to the same laws 
 as determine the competency of the rei vindicatio. This is 
 specially true of the plea of retention on account of other 
 claims competent to the creditor. ^^ 
 
 The priority of rights of pledge is determined by the lex 
 rei sitae ; and as regards immoveables there can be no ques- 
 tion of this. In moveables the law of the place where 
 the thing was at the moment the competition toot place 
 decides ', this is a result of the rule, that in so far as one ac- 
 quires a new right in a thing in one territory, the right which 
 was previously acquired in it in another territory is limited 
 or destroyed.29 (Cf. § 128, note 9a). 
 
 ^ Cf. Wachter on the laws of Wiirtemberg, ii. p. 388. 
 
 215 E.g., according to the A. L. E., i. 20, §§ 26, 225, 227, the agreement 
 that the pledgee shall not have a right to part with the pledge is so inter- 
 preted that he can satisfy himself by the fruits and by the use of it, or, if in 
 the circumstances this cannot have been the intention, that the thing shall 
 not be sold unless there be a concourse of diligence upon the debtor's estate, 
 although that does not prevent a personal action against the debtor. The 
 agreement in question is intended, according to Roman law, to prevent a sale 
 without three intimations, 1. 4, 5, D. de pignor. art. 13, 7. 
 
 ^'' See infra, the law of obligations, § 66, note 26. 
 
 28 By Prussian law, A. L. E., i. 20, §§ 171, 173, the plea of retention is only 
 competent to enforce claims by the pledgee arising out of the transaction of 
 pledge, but by Eoman law it does not matter to what the claims have reference. 
 
 29 Of. judgment of ii. Civil Senate of the Supreme Court of Appeal at Celle, 
 on 17th April, 1861 (Seufifert, 14, p. 445), "The writing which forms the 
 foundation of the pursuer's contention cannot give him the right of preference 
 which he claims in relation to the impignoratfid vessel, for a claim of 
 bottomry, according to our law, does not involve any privileged right of 
 security, and the privileges which are accorded to it by the law of Hamburg, 
 
 S 
 
258 [§ 65. 
 
 Rights, as well as corporeal things, may be made the sub- 
 jects of pledge. To pledge a right is simply to assign it 
 conditionally, in the event, that is to say, of the debtor failing 
 to pay or to pay timeously. Such pledges are ruled by the 
 law to which the right so impignorated is otherwise subject ; 
 e.g., when personal claims are pledged, the law which is 
 applicable to the assignation must be respected ; and when 
 rights carrying with them a disposition in security are 
 pledged, the lex rei sitae as well, since the right of pledge, 
 and consequently the conveyance of such a right are subject 
 to the lex rei sites. 
 
 Eeal rights of purely Germanic origin, such as the right 
 of sporting, of fishing, and the Uke, or peasant proprietary 
 rights, rights of entail, or feu rights,^" must be determined by the 
 lex rei sitce, and no doubt as to that has ever arisen except 
 on the following point. ^^ It is possible that, in the case of a 
 feu right, the feudal court should have a different law from 
 that which prevails at the place where the fundus serviens 
 is situated. Is the lex rei sitae or the law of the court to 
 decide ? This question is much debated, especially among 
 French jurists.^^ There is a preponderance of practice in 
 favour of regarding the law of the place where the feu lies 
 as regulative, in so far as there is no question of the inten- 
 tion of the overlord or of the formahties to be observed in 
 the feudal court.'^ And this is sound, since the days are gone 
 when the feus belongiug to a particular court constituted a 
 separate territory.^* ^^ 
 
 9 : 
 
 cannot regulate the order of preference of real- rights in a competition in this 
 country, although the contract that gave rise to the real right may have been 
 under the regulation of the law of Hamburg." 
 
 ^ Hert., iv. 62 ; BouUenois, i. p. 500 ; Bouhier, chap. 30, note 8 ; Kicci, 
 p. 599 ; Hommel Ehaps, vol. ii. obs. 409, No. 4 ; cf. Beseler., ii. § 125, ii. 
 
 2' Savigny, § 368 ; Guthrie, p. 193 ; Holzschuher, i. p. 80. 
 
 32 Cf. BouUenois, i. p. 880-885 ; Bouhier, chap. 25, No. 33. chap. 26, No. 
 220 ; Molinseus in Oonsuet., Paris, tit. i., Des fiefs, § 12, No. 37 ; and Bur- 
 gundus, vii. 6. 
 
 S3 Cf. Bouhier, chap. 29, No. 13, 7, 54 ; Eodenburg, ii. pars. i. c. 5, § 17 ; 
 P. Voet, 9, 1, § 56 ; J. Voet, Digressio de feudis in the Comm. ad Dig. Lib. 
 38. 
 
 =* Seuffert, Comm. i. p. 258, note 17. 
 
 3" The judgment of the Supreme Court of Appeal at Jena, on 11th May, 
 852, lays down that the form of the renunciation of a feu-right is to be 
 
§ 66.] 259 
 
 IV. Law of Obligations. 
 
 A. General Principles. 
 
 §66. 
 
 Obligatio is the name for that legal relation whereby one 
 person, the creditor, has a right to compel another, the 
 debtor, to do some act. The one, then, is bound to the 
 other to do something which, as a rule, implies a pecuniary 
 or patrimonial result, or may be reduced to such a result.^ 
 
 In the case of such a relation of obligation, the following 
 local laws may present themselves for consideration : — 1st, 
 the law of the place where action is brought ; 2nd, the 
 law of the place where the obhgation had its origin, 
 whether that consisted in a declaration of the will of the 
 parties — a contract or legal transaction — or arose immedi- 
 ately by virtue of some statutory provision as to a par- 
 ticular state of facts, without reference to the will of the 
 parties (quasi ex contractu, ex delicto quasi ex delicto) ; Srd, 
 the law of the place where the obligation is to be performed ; 
 4th, the law of the creditor's domicile ; and 6th, the law of 
 the debtor's domicile. 
 
 The opinion that the law of the place in which the action 
 is raised is to decide exclusively as to the relation of obliga- 
 tion between the parties is only adopted by those who reject 
 entirely the application of foreign law, and give the judge 
 as his sole guide the law that prevails at the seat of his 
 court. This opinion we have already impugned in discussing 
 the general principles of private international law. It is 
 unnecessary to repeat the arguments that were then urged. 
 
 determined by the lex rei sitae (Seuflfert, 13, p. 161). A distinction, however, 
 would be made between the case where there was a transference of a real right 
 in a feu by the person renouncing it in favour of another person who was 
 under the same feudal allegiance,— where the lex rei sitm would rule, — and 
 the case where an exceptio ex pacto might be set up against the person who 
 tendered the renunciation, where the rule " Locus regit actum " must rule. 
 The distinction is, that by observing the forms of the lex rei sitm all succes- 
 sors, by observing those of the lex loci actus all heirs of the person renouncing 
 are excluded. 
 
 1 Cf. Puchta Pandects, § 219 ; Arndt's Pandects, § 201. 
 
260 [§ 66. 
 
 A more popular and undoubtedly a better-founded theory^ 
 is that which takes as its guide the law of the place where 
 the obligation arose, or, more accurately, of the place where 
 the act was done, or the event happened out of which the 
 obligation took its origin. It has been urged in support of . 
 this theory that every person who treads the soil of a country 
 subjects himself to the law that prevails there, and must acquire 
 some knowledge of it. As a matter of fact, there is an undeni- 
 able expediency to recommend the application of the lex loci 
 contractus in many cases. For instance, how could trade pos- 
 sibly be carried on at fairs, markets, and exchanges if every 
 one who made a contract there could appeal to the unknown 
 law of his domicile, or of the place where it might so happen 
 that payment was to be made 1 
 
 But yet we cannot, for the following reasons, assent to this 
 theory. In the first place, it seems absurd that, as would be 
 the result of this theory, if two natives of this country happen 
 to make a contract abroad which they intend to fulfil in this 
 country, foreign law, which may be entirely unknown to both 
 of them, should regulate it. That would open a door of 
 escape from every law of the country. The parties would 
 only require to make a journey abroad in order to withdraw 
 themselves from all prohibitive statutes, such as usury laws. 
 And quid juris if the place of the completion of the contract 
 could not be ascertained, because it took place during a journey 
 by coach or rail ? Is the transaction in such a case always to 
 be void ? Lastly, how could a contract concluded between 
 persons abroad be brought to determination at all, since 
 we are landed in this circle — that the question in what place 
 the contract was originated could only be answered by a 
 rule of law, and it is ex hypothesi undetermined what law is to 
 be applied 1^ 
 
 A third theory, which is also adopted by a large number 
 
 2 Bartolus, in L. 1. C. de S. Trin. No. 13; Burgundus, iv. No. 7, 29; Hert, 
 iv. 10; Holzschuher, i. p. 71. Of. too, Wachter ii. p. 44-6, p. 396, wlio 
 declares himself in favour of this theory in so far as the point of the 
 autonomy left to parties is concerned. Yet most of the adherents of this 
 theory allow the place of fulfilment to decide sometimes. Kori, iii. p. 25. 
 
 3 Thol, § 85, note 2. 
 
§ 66.] 261 
 
 of jurists, regards the place of performance as regulative.* 
 This theory is just as unsound. No doubt it must be 
 allowed that performance is the end and object of the obli- 
 gation to which the whole view of the parties is directed.* 
 This does not by itself, however, justify the subjection of the 
 obligation exclusively to the law recognised at the place of 
 performance. All that one can infer is, that in points de- 
 pendent upon the agreement of parties there is foundation 
 for a voluntary subjection to the law of the place of perform- 
 ance, by virtue of that expectation of parties which is 
 directed to that end ; while the law of obhgations consists to 
 a large extent, although not exclusively, of rules which may 
 be avoided at the pleasure of parties. But even with this 
 hmitation, it is impossible, without a revolt against the general 
 logical rules of interpretation, to carry out the theory of the 
 rule of the place of performance in regard to obhgations ; for 
 even if we leave out of account that, since parties are ignorant 
 of the law that prevails at the place of performance, we 
 cannot assume them to have subjected their contract volun- 
 tarily to its application,^ an alteration in the place of per- 
 formance made subsequently to the conclusion of the con- 
 tract must alter the contract in each and every point, if the 
 law of the new place of performance differed from that of the 
 old ; and if there are several places of fulfilment, we are at 
 a loss for any rule of interpretation.^ 
 
 ^ P. Voet, 9, 2, No. 12; J. Voet, in Dig. 22, 1, § 6; Seuffert, Comm. i. 
 pp. 254, 255 ; Savigny, 372; Guthrie, p. 223 ; Walter,, § 48 ; Unger, p. 179 ; 
 Bluntschli, D. Privatr. i. § 12; Burge iii. p. 757. 
 
 * Savigny, § 370 ; Guthrie, p. 199. 
 
 ° JE.g., The obligation of a native of Hamburg, who takes in Hamburg a 
 loan from another native to be repaid to him in China, would have to be de- 
 termined by the law of China. Cf. the judgment of the Supreme Court of 
 Liibeck reported by Goldsohmidt, Zeitschrift fiir Handelssrechtj ii. pp. 139, 
 140. The defender had pleaded that it was customary in Constantinople not 
 to reckon the first and second days after a ship's arrival among the lay-days. 
 The court held that a custom of the kind could not regulate the case under con- 
 sideration, where the question was as to the meaning and legal result of a 
 contract concluded in an English port. The defender would have required to 
 aver and prove a custom of the kind in England. 
 
 ' Where, for instance, are we to say that the place of performance of the 
 obligation of the carrier is ! Perhaps the answer would be, at the destination 
 
262 [§ 66. 
 
 An appeal is made to the fact that by Roman law the forum 
 contractus was set up in the place where the obligation was 
 to be performed f and Savigny especially tries to make out 
 that the local jurisdiction, as well as the local law of the 
 obHgation depends upon a Toluntary submission of the 
 parties, and therefore that the rules which regulate the 
 former are to be applied also to the latter.® But, in the first 
 place, the Romans, in determining the jurisdiction, had no 
 intention of laying down what the law of the obligation was 
 to be. Further, by Roman law the forum, contractus was 
 not exclusive, but concurrent with the forum, domicilii of 
 the debtor. This could not be the case if the Roman law 
 had conceived the place of performance to be the seat of 
 the obligation. In the third place, it is at variance with the 
 general principles adopted by Savigny himself, and by far 
 the greater number of authorities, to conclude from the com- 
 petency of a court that the law recognised at its seat is 
 uniformly appHcable. By a similar deduction, we should hold 
 that the law recognised at the seat of the court which had 
 to decide any case must rule the case in all its bearings.^" 
 Lastly, we shall show (cf. § 120, note 8) that it is not by 
 any means the case that the Roman law unconditionally set 
 up the forum, contractus in the place where the obligation was 
 to be performed. 
 
 We have left, therefore, the domiciles of the creditor 
 and of the debtor to choose between, and the latter is no 
 doubt to be preferred as regulative. The person of the 
 debtor is without doubt more closely bound up with the 
 whole legal relation than that of the creditor. The person 
 of the creditor may vary without destroying the obligation, 
 but a change in the person of the debtor is equivalent to 
 
 of the goods. But the carrier has to perform the obligations laid upon him 
 at every moment of the transport. 
 
 8 L. 19, § 4, D. de judic. 5, 1 ; L. 1, 2, 3, D. de rebus, auot. jud. 42-45 ; in 
 particular, L. 23, D. de 0. ct. A. 44-47. " Contraxisse unusquisgw in eo loco 
 intelUgiiur, in quo ut soheret se ohligavit." 
 
 » Savigny, §§ 369 and 370 ; Guthrie, pp. 196 and 198. 
 
 1° Against the application of the law recognised at the place of per- 
 formance, see Waohter, ii. p. 42; Thol, § 85, note 3; Kori, Disc. iii. 
 pp. 22, 23. 
 
§ 66.] 263 
 
 the extinction of the old and the establishment of a new 
 obligation ;^^ and although the will of both parties may have 
 equal weight at the origin of the obUgation,^^ the performance 
 depends in the main upon an act of the debtor, and any- 
 active step on the part of the creditor is either altogether 
 unknown or, at aU events, quite subordinate to the other. -^^ 
 Neither the decisions of the courts nor the voice of the 
 authorities has adopted the view that, as a rule, the law of 
 the creditor's domicile should prevail. 
 
 On the other hand, Molinseus," and lately Thol," have 
 taken the debtor's domicile as their principle. 
 
 We are of opinion that the last is the correct theory, 
 and that on the following grounds, as well as upon those 
 already adduced : — The State allows its subjects to undertake 
 obligations to foreigners, and in a foreign country, but, as a 
 rule, only under the same regulations as govern their domestic 
 intercourse — to release them from all the restrictions which are 
 set upon such intercourse in their own country would be a 
 concession to foreign countries and to foreigners not easily 
 justified.^^ The absolute rules of the law of obligation, 
 which do not give way to the caprice of private individuals, 
 are, as a rule, established in the interest of the debtor. It 
 is not to be supposed that this care will cease if the subject 
 of a State should happen to have contracted, or should be 
 obliged to perform, a contract abroad. In so far as the 
 interpretation of the wUl of the parties is concerned, how- 
 ever, we must undoubtedly proceed from the position that 
 every man expresses his wiU in conformity with the law and 
 statutes which he knows, and therefore has had in view the 
 statutes of his own domicile. This rule of interpretation is 
 applied to unilateral transactions, especially testamentary 
 dispositions, even by those who propose to determine contract 
 
 11 That the person of the debtor is changed by the substitution of his 
 heirs is apparent only. The heir represents the person of his predecessor in 
 patrimonial relations. 
 
 1^ Obligations ex delicto arise from the act of one person. 
 
 13 Savigny, § 369 ; Guthrie, p. 195. 
 
 1* In L. 1. C. de S. Trin. 
 
 15 § 85. 
 
 i» Cf. Thbl, note 9. 
 
264 [§ 66, 
 
 obligations according to the lex loci contractus, or according 
 to the law recognised at the place of performance.^'' 
 
 Lastly, the view we have here maintained is supported 
 by the circumstance that, in the great majority of cases, 
 action to compel performance of a personal obligation, with 
 a view to the possibility of forcing compliance therewith, is 
 brought at the domicile of the debtor. The judex domicilii 
 must feel himself all the more bound to apply the lex domi- 
 cilii that, as we have already noticed, a consistent application 
 of the lex loci contractus, or of the law that is recognised at 
 the place of performance, seems irreconcileable with the main- 
 tenance of the law of the judge's own country. For instance, 
 if one desired to evade the laws as to the maximum rate of 
 interest, he would require merely to stipulate for a foreign 
 place of performance, in order to be able to secure payment 
 by an action in his own country. We must, however, keep 
 in view that if the domicile be changed after an "obligation 
 has been undertaken, it has no influence upon the import 
 and validity of the obligation, for this reason, that otherwise 
 there would be a retroactive force attributed to the domicile. 
 It applies not to obligations undertaken by subjects of the 
 State before they became subjects, but only to such as they 
 have undertaken while they have been subjects. ^^ This is 
 scarcely likely to be disputed, and is only specially mentioned 
 in order to avoid misunderstandings. 
 
 The following difiSculty has been raised in reference to the 
 case that the contracting parties have not the same domicile. 
 The essence of the contract, it is said, consists in a concurrent 
 declaration of will upon either side {duorum pluriumve in 
 idem placitum consensus)}^ If we should interpret the declara- 
 tion of both parties according to the law of their respective 
 domiciles, then we could never reach the notion of a consen- 
 sus ; and on the other hand, there is, it is said, no ground at 
 all for conceding an absolute authority to the laws of either 
 of the parties. If the parties to a contract, have in contem- 
 plation a law that will give effect to their contract, they will 
 
 w Cf. Foelix, i. p. 159 and p. 227. 
 
 18 Por exceptions -which, however, apply to the annulling of obligations, 
 however they may be conceived, see infra §§ 78, 80. 
 " L. 1, § 2, D. de pactis. 
 
§ 66.] 265 
 
 generally proceed on the footing that one and the same law- 
 should regulate the whole of it, so that it should receive its 
 fuU effect, just because the contract is meant effectively to 
 reconcile their opposing relations. Apparently, then, it is 
 said, there is no course left but to assume the law of the 
 place of the contract as regulative.^" 
 
 Against this argument we have, in the first place, to 
 remark that in the law of obHgation there are considerations 
 other than the will of the parties. Besides that, however, 
 this train of reasoning not being able to discover a law 
 common to both parties, and desired by both, substitutes 
 therefor a law which neither desires, since every person 
 declares his wiU in conformity with the laws which are known 
 to him — that is, the laws of his domicile. Instead of the 
 real contract of the parties, then, it substitutes an imaginary 
 contract. 
 
 On the other hand, the difficulty can be simply solved by 
 the following considerations. Every bilateral transaction 
 may be resolved into two unilateral obligations — sale, for 
 example, into the obligation of the seller to deliver the thing, 
 and the obKgation of the buyer to pay the price ; and in- 
 deed it was customary among the Romans to conclude 
 bilateral obligations in the form of two unilateral stipula- 
 tions.^^ Both seller and buyer give each other such per- 
 formance as may be prescribed by the law of the domiciles 
 of the one and of the other respectively. That is what each 
 has promised, and this promise the other party can only 
 have understood in the sense of the law of the domicile of 
 him who promised, because the assumption that every man 
 declares himself in the sense of the law which he knows, is 
 founded on considerations of general applicability and of good 
 sense. But if the laws of the different domiciles give a 
 discrepant result — if, for instance, in the case put the law 
 of the buyer's domicile throws upon him the risk of the 
 subject sold, while the law of the seller throws it upon him, 
 a contradiction seems to arise. We have, however, precisely 
 the same difficulty if two express provisions at variance with 
 
 2« Merlin, R6p, Vo. loi ; Foelix, i. p. 227 ; Waohter, ii. p. 44. 
 21 Of. Savigny, § 369 ; Guthrie, p. 195 ; and Wachter, ii. p. 45. 
 
266 [§ 66. 
 
 eacli other find their way into a contract, and no interpreta- 
 tion sought from other circumstances can give exclusive 
 validity to the one or to the other. The decision must be 
 in favour of the defender, since the pursuer has certainly not 
 made out his case. In the case of an agreement by letters, 
 or if the . place of the conclusion of the contract cannot be 
 ascertained, those who regard the place of the contract as 
 regulative have no resource left except to fall back upon the 
 law of the domicile of both parties.^^ An objection to the 
 application of the laws of the different domiciles seems to 
 lie in this, that one party might often be entitled to demand 
 performance, while he himself was not bound at all. But 
 in every contract the undertaking of the one party depends 
 upon that of the other : the one has only bound himself in 
 so far as the other is bound to carry out his undertaking. 
 He can therefore, if he is called upon to do his part, demand 
 that the other party shall either do his first (if this is suffi- 
 cient, as it often is, to bar any subsequent challenge of the 
 transaction), or bind himseK in some way that is recognised 
 by the law of his domicile. If, however, the party who is 
 truly bound has already performed his part, and if, by the 
 law of the domicile of the other party, it is not enough to 
 set up the contract that performance so made has been 
 accepted, then all that is left is an action to recover what has 
 passed.^* (Condictio indebiti sine causa in Eoman law.) 
 
 That the lex domicilii of the debtor is always to be the 
 ruling principle, without any exception, cannot be affirmed. 
 
 In the first place, the provisions of the law of obligation 
 often rest upon the consideration of circumstances that are 
 purely local. If it was proposed to apply these provisions 
 uniformly to the contracts of subjects into which they had 
 entered in a foreign country, and which were to be per- 
 formed abroad, the purpose of the legislature in making these 
 provisions would be far overstepped, and natives living for 
 
 22 Cf. Story, § 284. ■ Judgment of the Court of Appeal from the Ehine 
 Provinces at Berlin, 21st September, 1831 (Volkmar, p. 141). 
 
 23 There is an analogous case in Eoman law, where a person contracts with 
 a pnpil without the sanction of his guardian. The guaxdian can take up 
 or reject the contract, but cannot enforce the undertaking in his ward's favour 
 without recognising the obligation undertaken by him. — Savigny, iii. p. 40. 
 
§ 66]. 2C7 
 
 a time abroad would find it very difiGicult, and often im- 
 possible, to carry on trade and commerce. No one, for 
 instance, would hold that a tax imposed upon the sale of 
 particular articles of subsistence in one country should be 
 leviable in the case of these goods being sold in a foreign 
 market by a native of the former country. The like, too, must 
 in reason hold good of limitations on the rate of interest. 
 If, in some foreign country where a subject of this country 
 has an estate or a trading house, a higher rate of interest 
 than ours is allowed and is in use, by reason that capital is 
 more scarce, or the security is not so good, then the foreign 
 lender with whose money the estate has been improved, or 
 the trading concern extended, is entitled, even in our courts, 
 to demand his higher rate of interest as was arranged. The re- 
 strictions on the rate of interest are local taxes upon the price of 
 money. The opposite theory, instead of benefiting our citizens, 
 would destroy their credit, since the foreign judge would cer- 
 tainly pay no attention to our law upon this head.^* It is of 
 much more consequence whether the money lent has been 
 expended here or abroad. In the first case, the local hmita- 
 tions upon interest receive effect, but not in the second, for 
 the interest is the price paid for the leave to spend the 
 
 ^* Cf. Stephen, ii. p. 82. He says, in reference to the limitation of the rate 
 of interest : " The statutory prohibitions, it will be observed, hare always 
 been confined to English transactions, for if a contract which carries interest be 
 made in a foreign country, our courts will direct the payment of interest according 
 to the law of that country in which the contract loas made. Thus Irish, American, 
 Turkish, and Indian interest have been allowed in our courts to the amount of 
 even 12 per cent, {though by Statute 13 Geo. III. cap. 63, § 30, British subjects 
 in the East Indies are prohibited from taking more than 12 per cent.), for the 
 moderation or exorbitance of interest depends on local circumstances, and 
 the refusal to enforce such contracts would put a stop to all foreign trade. 
 And by Statute 12 Geo. III., cap. 79 ; and Geo. IV., cap. 47, all mortgages 
 or securities for money lent of lands, tenements, or hereditaments in Ireland 
 or the West India Colonies, bearing interest above 5 per cent., but not above 
 what is allowed by the law of the place, shall be valid although executed in 
 Great Britain, and whether the interest be made payable in Great Britain or 
 in the country where the property is situate." The words in italics are quoted 
 from Blackstone. In this we have the express testimony of a system of law 
 much concerned with the interests of commerce, to the effect that native 
 rules of law are not to be applied even to the subjects of that country them- 
 selves. Of., too, infra, § 71. 
 
268 [§ 66. 
 
 money. Thus too it is the law of the foreign country as to 
 interest, and not ours, that decides a question where one 
 native of this country lends another a sum for the improve- 
 ment of an estate in a foreign country. On the other hand, 
 our law on the subject must be applied if a foreigner lends 
 one of our subjects money for the improvement of an estate 
 in this country, or for the extension of a business carried on 
 here. It is plain what an advantage this theory has over 
 that which rests upon purely external characteristics, by 
 which the law of the place of performance or of the execution 
 of the contract is applied in every case. The appHcation of 
 our laws is fully ensured, while they are not allowed to 
 hamper foreign trade by their interference. Our task will 
 partly consist in testing the different rules of law, with a view 
 to determining whether they rest upon local considerations 
 such as we have mentioned, and what these considerations are. 
 In the second place — and here we shall find the second 
 part of the task furnished for us by the law of obUgation — 
 it is among aU civilised peoples of the present day a rule of the 
 law of obligations, that all such relations are to be determined 
 in the ultimate resort by bona fides ; even in such a case as 
 the law of bills, where apparently considerations of strict 
 law decide, this very strictness, which protects the person 
 who has acquired his rights bona fide by means of the litera 
 scripta, rests upon the principle that every one may rely upon 
 this litera scripta without having to fear the many objections 
 that may be taken by the debtor. In cases, then, where the 
 appUcation of the law recognised at the domicile of the 
 debtor would do violence to bona fides, while other local 
 laws would indubitably support it, then the latter and not 
 the former is the law which, by the unanimous voice of all 
 systems of legislation, must decide. We have already seen 
 that no trade could go on at fairs, markets, or on exchanges, 
 if both parties could appeal to the law of their domiciles to 
 regulate the ordinary contracts of these markets, &c. The 
 difference in the laws which prevail at the domicile of this or 
 that seller would make it impossible for a buyer to determine 
 which offer was the more favourable, taking into account the 
 possible loss or deterioration of the goods, as well as the time 
 allowed for payment and delivery. Commerce demands that 
 
§ 66.] 269 
 
 there shall be one law that shall necessarily determine the 
 import of all contracts for all buyers and sellers alike, and the 
 only possible one in such cases is the law of the place where the 
 contract was concluded.^* If appeal is made to another law, 
 violence is done to the principle of bona fides. The follow- 
 ing cases may serve as illustrations : A person owns a trading 
 establishment abroad; he cannot suppose that the law of his 
 domicile can be applied to contracts concluded abroad in 
 connection with that establishment. Anpther contracts debts 
 for his subsistence abroad, or opens an hotel ; he cannot 
 avoid liability by an appeal to the law of his domicUe. 
 Another deUvers goods abroad to a railway company for 
 carriage ; the law that is recognised in the country where 
 the railway is situated determines the meaning of the con- 
 tract of freight.^^ The managers of a railway cannot make 
 different contracts with each individual, according to his 
 caprice or his probable intention. A person who uses the 
 railway in the ordinary manner must be subject to the law 
 that is recognised at the place where it is situated. In this 
 connection the place of performance, too, is of importance. 
 In the first place, it has to be ascertained whether the whole 
 transaction, from its nature, must be developed and carried 
 out where it was entered upon. If, without special agree- 
 
 ^* Cf. a judgment of the Supreme Court at Berlin of the 26th September 
 1849. " Contracts made by our subjects abroad, which are to be put in force 
 in this country, will, in ordinary circumstances, lead us to the conclusion that 
 the parties meant to subject themselves to the law of this country. But this 
 conclusion cannot be drawn in the case of contracts as to moTeables, which 
 are at once performed by both parties, as, for instance, a bargain concluded 
 and carried out as to the sale of cattle in a foreign cattle market " — (Ent- 
 scheidungen, vol. 18, p. 150). A bargain made at the market, which does not 
 rank among those ordinarily made there, is to be otherwise judged of, e.g., a 
 contract for the sale of an estate, which is accidentally made at the market. 
 It is of no moment that the parties who make the contract during the fair or 
 market, and within the territory to which it belongs, are subjects of the same 
 foreign State. — Judgment of the Supreme Court at Berlin, 3rd April 1856 
 (Striethorst, 20, p. 303). 
 
 2* Judgment of the Supreme Court at Berlin on 12th October 1852 
 (Entscheidungen, vol. 24, pp. 21-2). " The contract relations of a railway 
 which is exclusively Prussian, and has received goods to be forwarded, these 
 goods having been handed on to a foreign railway, and carried farther by them, 
 are, in questions with the sender, determined by Prussian law." 
 
270 [§ 66. 
 
 ment, performance must take place where the contract was 
 concluded, then, as a general rule, the whole transaction 
 belongs to the law of that country, whereas the local law of 
 the contract is not to be displaced by selecting some other 
 place of performance purely at random.^^ In the same way, 
 the choice of a particular place of performance will regulate 
 the obligation, if a prohibitive law stands in its way upon the 
 spot,^^ or in so far as the will of the parties pronounces 
 indirectly in favour of attaching to the performance modifica- 
 tions provided by the law of the place of performance. The 
 latter^^ is the case where a certain sum of money is promised, 
 to which a different value is attached at the place where the 
 contract is concluded from that obtaining at the place of 
 payment ; or if a contract bears to be for delivery of a certain 
 quantity, expressed according to a measure or weight, to 
 which different meanings are given at different places. 
 Payment will be made, or the goods measured or weighed 
 out, as a rule, at the place of performance, according to 
 the currency or the measures or weights in use there; 
 and this justifies the understanding that parties, when they 
 concluded their contract, had no other currency, measure, or 
 weight in view. If, for instance, a bill is drawn in Ireland 
 upon London for £100, the holder of the bill is entitled to 
 demand £100 in English currenc3^^'' But this rule is not to 
 
 2' On this point no general rules can be given, — it depends on circum- 
 stances. Of. Judgment of the Supreme Court at Berlin, 17th January 1856 
 (Striethorst, 19, p. 284) ; Judgment of the Supreme Court of Appeal at 
 Jena, 1832 (Seuffert, 2, p. 162) ; Story, § 293 a. 
 
 ^ See on this point the following paragraph. 
 
 28 Draft of a general code for German commerce, Art, 327, — " If the time 
 of performance is said to be spring or autumn, or the like, then the usage of 
 trade at the place of performance rules.'' Art. 336, — " Measure, weight, 
 standard of coinage, coinage, measure of time and distance, recognised at the 
 place of performance are, in doubt, to be held as regulating the contract. Cf., 
 too, Art. 352. Art. 353, — " If, in making the bargain, the market price or the 
 price of the exchange is fixed as the price, then, in doubt, the current price 
 at the time and at the place of performance, or the trade centre that deter- 
 mines prices for that place, is to be thereby understood." Cf. Art. 569 as to 
 the time for loading vessels. (The regulations of the port, or, failing them, 
 the usage of the place is to rule,) 
 
 30 Burge, iii. p. 772; Wheaton, i. § 145, p. 194 ; P. Voet, 9, 2, No. 12; Story,, 
 § 272 a ; Burgundus, iv. 27-9 ; J. Voet in Dig. 12, 1, § 25 ; Christianseus, i. 
 
§ 66.] 271 
 
 be applied if, from the circumstances, we may infer that 
 parties had in the" particular case some other end iq view. 
 For instance, if a loan is made in Ireland in Irish currency, 
 and London is fixed upon as the place of repayment, the 
 debtor has only to refund £100 Irish currency, siace the 
 essence of such a contract is that the debtor has, putting 
 interest out of the question, only a duty to repay what he 
 got. If, to take another illustration, in a contract of sale, the 
 currency of the place of payment would give either an 
 unreasonably high or a disproportionately low price for the 
 goods, whUe the currency of the place where the contract 
 was concluded would give an ordinary price, it cannot be 
 assumed that parties have had the former in view. 
 
 In contracts affecting immoveables, performance can only 
 take place, on the part of the person giving a permanent or 
 temporary right over such property, at the place where the 
 thiag is. Setting aside the consideration that performance 
 is iu this way always subject to the prohibitive laws in force 
 at the place where the thing is, and that real rights in im- 
 moveables can only be given in the forms of the lex rei sitce, 
 and, therefore, that there is from the first a reference to that 
 law, the person who acquires a right of use, or a personal 
 claim to the use of a parcel of property, generally contem- 
 plates taking up a permanent residence in. the place where 
 the thing is, and at the same time we may assume that 
 both the disponer and the possessor are acquainted with 
 the lex rei sitcB. 
 
 In doubt, then, contracts as to landed property must be 
 interpreted in accordance with the lex rei sitce,^^ although 
 the circumstances of a particular case may lead to a different 
 
 deeis. 285, Nos. 5-11 ; BouUenois, ii. p. 500-1 ; Gand, No. 295 ; Foelix, i. p. 
 232 ; Pardessus, No. 1495 ; Masai, ii. No. 119-126 ; Judgment of the 
 Supreme Court of Appeal at Liibeok in the year 1853 (Seuffert, 8, p. 5) ; 
 Austrian General Code, Art. 905, ad fin. — " In considering weights, measures, 
 and currency, the place of delivery must be regarded." [Of. Ainslie v. Murrays, 
 17th March, 1881, 8 E. 636.] 
 
 M Foelix, i. p. 232. Mass&, No. 97. BouUenois, i. p. 554 ; ii. pp. 453, 497. 
 Burge, ii. pp. 858, 859, 871. Choppin, Opera de feud. Andegav. ii. lib. 2, tit. 
 3, No. 10. J. Voet in Dig. 46, 3, No. 8. Harum in Haimerl's Magazin 
 fiir Oesterreiohische Eechtswissenscheft, ii. p. 396. Story, § 271, ad fin. 
 
272 [§ 66. 
 
 result,^^ ^^ which accounts for the opinions which some authors 
 have adopted at variance with ours.^* 
 
 Obligations arising from dehcts, and from circumstances of 
 a kindred nature, furnish a general exception to the universal 
 application of the lex domicilii to the import of obligations. 
 The obligation arising from a delict may have as its subject — 
 1st, reparation for the damage done, and 2nd, a penalty to 
 be paid to the injured person. 
 
 As far as regards these obligations under the first head, 
 the rules of law in reference to them contain no more than such 
 instructions as every one, who hves in the State where they • 
 are in force, must observe in his dealings with other persons 
 and things that happen to be there. It is obvious that by 
 failing in this responsibihty, the foreigner becomes subject to 
 these laws,^^ and as every State requires this submission of 
 the citizen of other States in its territory, it must always 
 recognise the same submission of its own subjects to a foreign 
 state. The law of the place where the prejudicial act was 
 done, or the prejudicial circumstances happened, decides the 
 obligation to make reparation.^® 
 
 These obligations, so far as they fall under the second head, 
 belong essentially to criminal law ; the difference between 
 them and the obhgations to pay penalties, which are, as a rule, 
 assigned to public law, is simply this, that in the case of the 
 latter, the fine goes to the public purse, in the case of the 
 
 '" Molinseus in L. 1, C. de S. Trin., — " Unde stantibus mensuris diversis si 
 fundus venditur ad mensiiram vel affirmatur vel mensuratur, non continuo debet 
 inspici mensura qucB regit in loco contractus, sed in dubio debet attendi men- 
 sura loci in quo fundus debet metiri et tradi et executio fieri. Et ita tenendum, 
 nisi ex aliis circumstantiis constet, de qua mensura senserint." Molinseus has 
 a different theory as to warrandice. 
 
 '^ Of. Judgment of the Supreme Court of Appeal at Wiesbaden of 5th 
 February, 1825 (Nahmer Coll. 2, p. 219), where it was held that a contract 
 of lease concluded by a subject of Nassau, in Mainz, was to be determined 
 by French law, which rules in Mainz. 
 
 3* See supra, pp. 132 and 233, as to the form of contracts relating to im- 
 moveables. 
 
 ^ Foreigners would, if it were otherwise, have privileges which would often 
 be impossible to reconcile with common feelings of justice and the security of 
 intercourse. 
 
 '" For further development of this, and a refutation of the theories that 
 differ from it, see infra, § 88. 
 
§ 66.] 273 
 
 former, to a private person. Both punishments, however, 
 rest upon moral or political grounds, and therefore the lex 
 fori decides in such cases, just as it does in cases where pubUc 
 criminal statutes are transgressed ; but if the act has no 
 punishment attached to it at the place where it was done, no 
 punishment can be ioaposed upon it abroad ; for if it could, 
 then the native laws of one country would claim to be observed 
 in a foreign land, a demand inconsistent with the principle 
 of territorial sovereignty, — viz., that every State has the 
 privilege of determining all questions as to the conduct of 
 persons who stay in its territory, in their relations with other 
 persons and with things that are in the same territory, and all 
 questions as to their freedom of action (cf. Foelix, ii. p. 319). 
 The character of the obhgation as one belonging to private 
 law has merely this effect, that no claim can ever be advanced 
 to a sum in excess of what the lex loci actus approves. For 
 the accidental circumstance that the claim is dependent upon 
 the decision of another court can never enlarge the amount 
 of that claim after it has been once fixed.^'' 
 
 If we must concede that the law of the place where the 
 obligation originates and is to be performed has no unim- 
 portant bearing on the import of obligations, there are, on the 
 other hand, rules of law as to the dissolution of obUgations 
 that have been constituted, which demand ah unquahfied ap- 
 plication, according to the rules of the lex domicilii of the 
 debtor ; as in the case of the total or partial dissolution of 
 obligations by limitations of action, and the release which in 
 some systems of law is in certain circumstances given to the 
 debtor in the event of his bankruptcy. If, agaia, the object of 
 a particular rule of law can only be attained by leaving the lex 
 loci contractus or the law of the place of performance out of 
 sight, then the judex domicilii has the duty laid upon him 
 of applying his own law without exception. We shall see 
 that there are sufficient grounds to be urged for the recognition 
 of the debtor's freedom by the foreign judge also. 
 
 The law of the place of action, lex fori, must also be kept 
 in view to this effect, that the judge, as has already been 
 noted in setting forth our general principles, can never recog- 
 
 3' Cf. infra, § 88, and orlminal law. 
 
274 [§66. 
 
 nise a claim which the ideas of his own law pronounce to be 
 immoral or indecent. 
 
 With these modifications, no one can urge against the view 
 we have adopted that it, no doubt, fits the case where the 
 judex domicilii of the debtor is competent, but is not adapted 
 to give rules for decision to another judge, e.g., the judex loci 
 coniraetus or the judex domicilii creditoris, who have nothing 
 to do with the protection of the person of the debtor. If we 
 have excluded the purely local provisions of statutes recognised 
 only at the place of his domicile, and, from consideration for 
 bona fides and what may be presumed to be the intention of 
 parties, have allowed the law of the place where the contract 
 is concluded or is to be performed to have its operation, we 
 have done enough to secure the intercourse of our subjects 
 with foreigners ; for no one can be disappointed in any well- 
 founded expectation (bona fides) that his own law will be 
 appUed to relations of obligation entered into with foreigners: 
 this our limitations have ensured ; and if they are not appli- 
 cable in any particular case, the foreign judge is aU the 
 more under obUgation to recognise the lex domicilii of the 
 debtor, since, if he were in every case to apply the lex loci 
 contractus or the law of the place of performance, then, as 
 we have seen, he could never succeed in having the law of 
 his own country observed abroad. We undertake to show 
 in the sequel that, where practice and the most approved 
 authorities take the law of the place where the contract is 
 made or is to be performed as their principle, our view, too, 
 leads as certainly to that result, without carrying with it 
 the inevitable consequences, prejudicial to all sense of justice 
 and equity, which accompany the imiform application either 
 of the law of the place of the performance, or of the place 
 where the contract is made.'^ 
 
 If objection shall be taken to the principles laid down by 
 us, because they are capable of various meanings, and so leave 
 scope for capricious interpretations, we may answer by point- 
 ing to the impossibility of expressing fully in any code, or 
 for one particular positive law, the principles of bona fides 
 which govern the law of obligations. The cases, for instance, 
 
 ^ Of., too, infra, § 120, the discussion on the forum contractus. 
 
§66,67.] 275 
 
 which the rich casuistry of Justinian's Pandects exhibits are 
 mere illustrations which, by analogy, the lawyer may apply to 
 the endless multipHcity of relations of obligation. We have 
 less right to require of a system of international law what 
 cannot be attained even for a particular system of positive 
 law. If the questions which have hitherto supplied the 
 most important material for questions of international obliga- 
 tion are discussed by us in such a way that those other 
 questions, on which we shall not bestow particular attention, 
 may be determined from the analogy of those that are fully 
 dealt with, then we may fairly consider that our task is com- 
 plete, because the rest may be left to judicial determination 
 in each case as it arises. ^^ 
 
 £. Obligations ex contractu. 
 
 (1.) Subject of the Obligation. Permissibility of the 
 Tkansaction. (Evasion of Foreign Revenue Laws. 
 Gaming in Foreign Lotteries.) 
 
 § 67. 
 
 It is a general requirement of every contract-obligation 
 that the act of the debtor, to which the obligation is directed, 
 should be permissible.^ On this point the laws of the 
 different places, which have to be considered in every obliga- 
 tion, may differ. 
 
 According to the prevailing theory, the obligation is 
 invalid if the act is forbidden by the law of the place of 
 performance.* 
 
 '9 Of. too, Story (§ 241) who, although he sets up the place of the contract 
 of performance for himself, still practically ends in the result we have come 
 to in the text. The artificial rules giren by Boullenois, ii. pp. 458, 459 ; and 
 Foelix, i. § 70, pp. 157-58 (of. p. 223), which are in part inconsistent with 
 one another, and in part are entirely destitute of foundation, show how little 
 Success has really attended the effort to discover more definite principles for 
 the law of obligations. 
 
 1 The purely logical essentials of an obligation, — e.g., that the act should be 
 possible, the subject of the obligation not quite indefinite (cf. Arndt's Pan- 
 dests, § 202 et seq.) — are not here treated of, because they are to be found in 
 every system of legislation. 
 
 2 Of. Giinther, p. 740 ; Masai, ii. p. 116 ; Wheaton, p. 116 ; Wachter, ii. 
 p. 404 ; Story, § 246 ; Huber, i. 3, § 5 ; Mittermaier, i. § 31, note 9. It 
 
276 [§ 67 
 
 In the first place, it is plain that the judge of the country 
 in which the obligation is to be performed must regard it as 
 void. The same, however, is true of the judges of other 
 countries. Every State has the right to forbid certain trans- 
 actions within its territory, be these undertaken by natives or 
 by foreigners. The judge who by his decree compels the 
 debtor to performance of an act which runs counter to such 
 a law does violence to the law of the State in which the act 
 is to be performed.^ 
 
 It has, however, been proposed to make an exception in 
 the case of prohibitions which rest upon purely fiscal groiinds. 
 The most important case of this kind is to be found in the 
 case of smuggling or evasion of foreign duties. In this 
 case, it is said, the judges of other States should regard the 
 transaction as valid. States, says Pardessus,* live, as far as 
 their revenue laws are concerned, in a kind of war with each 
 other ; and older authors, such as Em^rigon^ and Straccha,® 
 express themselves to the same effect. This ground, however, 
 may justify retaliation, but can never justify the principle 
 itself of refusing recognition to the revenue laws of other. States ; 
 for, as Vattel remarks,^ every sovereign has the right of 
 limiting the import or export of particular goods, without 
 thereby giving other States, who claim the same right for 
 themselves, any ground to complain. It comes to this, that 
 it can hardly ever 'be possible to transgress foreign revenue 
 laws without deceiving the officers of that Government — a 
 proceeding which can never be regarded as creditable. An 
 obligation which requires such a deception needs no more to 
 
 will be understood that all authors who make the place of performance the 
 rule in every case are to be reckoned here. 
 
 ^ Foelix, i. §§ 78, 90, pp. 158, 235. The question is often mixed up with the 
 case to be discussed below — viz., where the transaction itself is forbidden, but 
 not the act which is the immediate subject of the obligation, e.g., where a 
 gaming contract is forbidden, but not the payment of the sum which is the 
 subject of that contract. 
 
 * No. 1492. 
 
 6 I. ch. 8. No. 58. 
 
 « De assecurat. gl. 5, No. 5 ; Mass^, ii. p. 116, and Wheaton, § 91, p. 122, 
 take the same view. The older practice in France, according to Em^rigon, 
 as well as in England and America, is to the same effect. Of. Story, § 245. 
 
 7 1, ch. 8, § 90. 
 
§ 67.] 277 
 
 show it to be necessarily regarded as invalid. But as a matter 
 of fact, there are writers of repute who maintain this view.* 
 
 The sale of foreign lottery tickets is to be determined on 
 the same principles, if it is always kept in mind that it is 
 only the advertisement and sale of such tickets within bur 
 own territory that can in reason become the subject of any 
 such interdiction : sale and advertisement in another country 
 cannot, and therefore, if the transaction of sale were a 
 permissible transaction according to the law of the country 
 where it took place, an action for payment of the price must 
 be entertained by our Courts (Story, § 258a, Giinther, p. 740). 
 A judgment of the Supreme Court of Berlin of 16th October, 
 
 8 Pothier, des assurances, No. 59 ; Story, §§ 245-257. According to Story's 
 and Mass^'s notes, the English authors Marshall and Chitty, and the French 
 jurist Delangle adopt the same theory. Pfeiflfer, Prakt. Ausfiihr. iii. p. 85. 
 Mohl. (Staatsrecht, Volkerrecht, i. pp. 724-5) refutes at the same time the 
 view that the State which favours contraventions of foreign revenue laws has 
 any permanent advantages to expect from it : " Revenue laws are an essential 
 means of compelling all classes of subjects to contribute to the burdens of 
 the State ; and, therefore, the maintenance of manifold rights and privi- 
 leges which every State is bound most completely to ensure to its subjects 
 is dependent upon their observance." At the least, as Mohl remarks, the 
 opposite view must be rested upon the belief that advantage may somehow be 
 drawn from this system of smuggling. By the same reasoning, theft, robbery, 
 murder, and swindling in a foreign country will be supported. See the 
 judgment of the Supreme Court of Cassel of 13th December, 1828, reported 
 by Pfeififer, pp. 85-6, which pronounced for the nullity of a contract directed 
 to the evasion of foreign revenue laws, as being intended to withdraw from 
 the State in question a right founded on law ; and the fact that the Courts of 
 Hesse had no jurisdiction to impose punishment in such cases could not be 
 decisive. The case of a contract directed not merely to smuggling, but also 
 to the corruption of the foreign of&cials, is beside the question. Mass6, ii.. 
 No. 83, " La corruption qudquesoit le but qu'elle se propose itant contraire aux 
 principes de morale universelle. . . . C'est ce qui a dtdjugipar un decret de la 
 Cour royale de Pom dull Juillet, 1834." The question whether a trans- 
 action has for its object the evasion of revenue laws does not belong to Inter- 
 national Law ; it is to be determined by the actual circumstances of the 
 particular case, and this is a solution of the variety of the judgments reported 
 by Story, § 251. In one case the transaction was not declared void, although 
 the person who sold the goods knew that they were to-be smuggled, because it 
 was necessary, in order to produce that legal result, that the smuggling of the 
 goods should form part of the contract, or that the seller should himself con- 
 tribute in some way to the smuggling, e.g., by packing the goods in some 
 special way. In the other case the contrary was found. 
 
278 [§ 67. 
 
 1854, proceeded on the ground, that the question whether 
 or not the transaction was permissible must in a Prussian 
 Court be determined by Prussian law ; and the pleas of the 
 defenders, — who were domiciled in Prussia, and had sold to 
 the pursuer, who was domiciled in Bohemia, tickets in a 
 marine lottery for Prussia — that they were free from liability, 
 because in Austria the.- sale and purchase of Prussian lottery 
 tickets was forbidden, were repelled. The following case may 
 be distinguished. If it is merely the collection for foreign 
 lotteries that is forbidden, then in the country of the person 
 who takes a share, action at the instance of the collector 
 against him is no doubt excluded, but action at the instance 
 of the ticket-holder against the collector is not forbidden 
 either there or in the country where the lottery is permissible ; 
 for in neither of the legal systems coming under consideration 
 is there any intetition to put the ticket-holder at a disadvant- 
 age. This result is in harmony with the case cited, as well 
 as with a judgment of the Supreme Court of Appeal at 
 Liibeck^ ; with the grounds of the decision in that case, 
 however, I have very little sympathy, nor have I for those 
 of the Court at Berlin. The matter would stand otherwise 
 if, as is enacted by the Hanoverian Ordiaance of 19 th April, 
 1819,^° in relation to the " Lotto" (in contrast with the ordin- 
 ary lottery), all winnings were declared forfeited by way of 
 punishment. 
 
 When the transaction is forbidden by the law of the 
 domicile of one of the parties, this law is not to be considered, 
 since police regulations do not bind the subjects of a country 
 abroad. 
 
 The law of the place of action, however, rules in so far as 
 
 » Of the 11th December, 1849 (Ebmer's Collection, ii. pp. 158-60), "Foreign 
 Laws forbidding gaming in lotteries in other countries, are not to be applied 
 by the Courts of Frankfort, as the Frankfort lottery is a financial institution 
 of the State ; and it cannot, therefore, be held that the legislators of Frank- 
 fort intended to give to courts of that place power to apply such laws. If a 
 collector has invited a foreigner to game in the lottery, knowing that that was 
 forbidden by the law of his country, he cannot appeal to these foreign laws, so 
 as to escape payment, if the foreigner wins ; this plea will be repelled by the 
 B&plica doli, recognised in the cases of Laubinger v. Schnabel, 1835 ; Clon- 
 curry v. Uberfeld (1848). 
 
 i» Official Gesetzsamml. 1819, Part I. p. 25. 
 
§§ 67, 68.] 279 
 
 a judge cannot enforce a transaction which, by the law of 
 the land, is to be held immoral, even although the same may- 
 have been entered into abroad. 
 
 (2.) Conditions of the Vaxiditt of Contracts, and 
 THEIR Force in Judgment. 
 
 §68. 
 
 The validity of contracts and their force in judgme,nt may 
 depend upon the observance of a particular form. We have 
 already remarked, in discussing the rule "Locus regit actwm" 
 that the transaction in such a case must be recognised 
 generally as valid and good in judgment, if it corresponds 
 with the forms recognised at the place where it was entered 
 into.^ If, then, informal contracts are generally recognised 
 in any country, then an informal contract concluded there 
 may be pleaded in judgment in any other country, although 
 according to the law of that second country such a contract 
 would only create an obligation on which no action could 
 be raised. Whether, again, it will be enough that the trans- 
 action, as regards its form, is in accordance with the law of 
 some other country, will depend upon what laws govern it as 
 regards its substance. For it may be laid down that the 
 same laws to which the essence and import of the transaction 
 are subject, will and should regulate the form of the same, 
 since its form is simply the outward token of its essence and 
 import. Besides that, however, the purpose of the parties 
 to bind themselves by a valid contract must be evident.^ 
 This consideration will show that there can seldom be a 
 binding contract, if in the form of the contract the lex loci 
 contractus is not observed.^ 
 
 1 Mevius in Jus. Lub. proleg. 4, No. 116, " Cave autem in hoc materia 
 confundas actuum et contractuwm sollennitates, nee non effeetus." 
 
 2 Gf. Oesterr. Allgem. G. B., Art. 36-7 ; Piittlingen, p. 49. 
 
 * Cf. on this subject supra, § 36. [A contract of marriage executed 
 between two French subjects in Brazil, where both were at the time residing, 
 the husband being engaged in business there, will not be rejected by the 
 French courts because it has not been published as French law requires, but 
 will receive effect as a French contract, the parties having executed it as 
 
280 [§ 68. 
 
 If the transaction is forbidden by the law of the place 
 where it is entered into, then there can be no form recog- 
 nised by the lex loci contractus by which it may be validly 
 concluded. Thus, all such contracts must, as a rule, be 
 pronounced null, unless for this exceptional case it is suf- 
 ficient to observe the form imposed by the law of some 
 other territory. For instance, according to the penal code of 
 France,* a sale for delivery of public funds is invalid if at 
 the time of concluding the contract the scrip is not in 
 the possession of the seller. A contract of this kind, there- 
 fore, concluded on the exchange at Paris in contravention of 
 this provision is, as a rule, to be held null everywhere. But 
 if two persons domiciled in another country conclude a 
 bargain of this kind in a railway carriage while they are in 
 some territory where French law prevails, then either party 
 may bring an action for compelling performance before the 
 judex domicilii, if the law of the domicile of these parties 
 knows no such restriction,^ and if their intention clearly 
 was directed to the execution of a binding contract.^ The 
 same rules will decide if, for instance, one makes some 
 stipulation in Vienna contrary to the provisions of the 879th 
 section of the general code of Austria.'^ 
 
 nearly as possible in the French form, and, to secure publication as far as 
 possible, having registered it in the nearest French consulate. Guitton v. 
 Russel, Bennes, 4th March, 1880.] 
 
 * Art. 421-2 ; cf. Gand, No. 688. 
 
 * BouUenois, ii. pp. 456, 489, 490. Story, § 273, remarks, " without under- 
 taking to say that the exception may not be well founded in particular cases, 
 as to persons merely in transitu, it may unhesitatingly be said that nothing 
 but the clearest intention on the part of foreigners to act upon their own 
 domestic law, in exclusion of the law of the place of contract, ought to 
 change the application of the general rule." 
 
 ^ Such exceptional cases are generally overlooked, if one argues with 
 Huber, in confl. § 3 : " E contra negotia et acta certo loco contra hges ejus loci 
 celebrata, quum sint ah initio invalida, nusquam valere possunt." The 
 reason "quum sint ab initio invalida" contains a petitio principii: it 
 assumes, what is not proved and cannot be proved, that every transaction is 
 to be determined by the lex loci contractus. Story, § 243, says of contracts, 
 " If void or illegal by the law of the place, they are generally held void and 
 illegal everywhere." He maintains it is a principle of the law of nature ; 
 such a law however does not exist. 
 
 f § 879, " In particular, the following contracts are invalid— viz., 1st, If 
 &ny condition shall be laid upon the undertaking of a contract of marriage." 
 
§ 68.] 281 
 
 The question whether an obligation can or can not be sued 
 upon undoubtedly belongs to the substance of the contract, 
 and is therefore independent of the law recognised at the 
 seat of the court.^ But if an action arising out of the 
 particular legal relation is held in our country to be im- 
 moral, or indecent, it must be thrown out without respect 
 to the law of the place where the contract was made or 
 where it is to be performed, or to that of the domicile of the 
 parties.^ These cases, and such cases as those in which 
 some legal relation cannot be sued upon for want of a 
 prescribed form — e.g., where action cannot be maintained for 
 more than a certain sum except upon a written document — 
 have been so mixed up^" as to have led to the very general 
 adoption of the view that where a transaction or contract 
 cannot be sued upon in some particular country, no action 
 at all arising out of it can be maintained there, although it 
 was concluded and is to be performed in another country, 
 and both parties are foreigners." If the law restricts the 
 judicial operation of particular obligations, that provision no 
 doubt implies that the judge is bound to throw out any 
 action of the kind, in spite of the desire of the parties that 
 the transaction should be upheld. If then, for instance, an 
 action is brought upon a guarantee by a wife for her 
 husband, a forbidden transaction, the judge must necessarily 
 dismiss it. But that does not settle the question whether 
 the law means to deal with all such cautionary obligations, 
 wherever and by whomsoever they niay be undertaken, or 
 only with those undertaken by married women of its own 
 country and bonds which are to receive effect there. ^^ The 
 
 ' Seuffert, Comm. i. p. 160, note 78 ; Foelix, i. § 110, p. 255 ; Wachter, i. 
 p. 270 ; ii. p. 26, and 400. 
 
 ^ If, for instance, at tbe place of action gambling debts cannot constitute a 
 ground of action. Savigny, § 374 ; Guthrie, p. 252. 
 
 ^^ E.g. " La recherche de la paierniti est interdite, Code civ., art. 340 ; or 
 the provision of the Austrian Code cited in note 4 ; or the contracts cited by 
 Story, § 258, in encouragement of prostitution, or for the circulation of 
 indecent books or pictures, if these contracts are concluded in a foreign 
 country. 
 
 " So, for instance, Weber on natural obligations, § 62 ; and Linde, Hand- 
 book of German Civil Process, § 41, note 3. 
 
 12 See Brinckmann, i. p. 16, for argument of faculty of law at Kiel. 
 
282 [§§68,6&. 
 
 theory whicli holds that the lex fori must always determine 
 whether action can lie or not, leads necessarily to this, that 
 more favour is shown to a transaction which is entirely void, 
 than to one which is valid in itself, but on which no action 
 can be brought.^' 
 
 (3.) Import of Obligations. 
 
 §69. 
 
 Within certain limits the import of an obligation depends 
 on the declaration of the intention of the parties. But yet 
 it would not be correct to say that the import of an obliga- 
 tory contract is merely that which may be presumed to be 
 their intention. The so-called dispositive rules of law which 
 belong to this subject may, no doubt, be excluded by the 
 wiU of the parties ; but it is by no means the case that they 
 are to be applied only where they correspond with what was 
 probably the intention of the parties.^ If this were true, 
 these rules would be excluded in every case where one could 
 not point to some declaration of intention, perhaps a tacit 
 declaration, by the parties that they should be applied. It is 
 upon a confusion between the presumed intention of the 
 parties and these so-called dispositive rules of law that the 
 theory of those authors rests,^ who say that the immediate 
 consequences of a contract are to be determined by the lex loci 
 contractus, while its indirect or accidental consequences must 
 be ruled by the laws of the country where these consequences 
 may have taken place. For instance, it is said that among 
 the immediate consequences of a contract of sale are the 
 delivery of the subject sold to the buyer, the payment of the 
 price, the right to renounce the contract on the ground of 
 enorm lesion, and the passing of the risk to the buyer ; while 
 among the accidental consequences are unwarrantable delay 
 on the part of any of the contracting parties, or the renunci- 
 ation of the contract by reason of the occurrence of some 
 
 13 Wachter, ii. p. 402 ; Demangeat on Foelix, i. p. 255, note a. 
 1 Tho], § 44, ii, 
 ' E.g., Foelix, i. p. 247, and note i. 
 
§§ 69, 70.] 283 
 
 subsequent event.* Tlie former are results that can be fore- 
 seen, the latter cannot. But the whole theory must be 
 rejected, for the very reason that it is only the particular 
 capacity and prudence of individuals that can determine what 
 is unforeseen. It is difficult to understand, as a matter of 
 fact, why there should be any greater difficulty in foreseeing 
 a delay in performance, than in foreseeing the accidental 
 destruction of the subject, and indeed it may very well be 
 that if the buyer had a reputation for dilatoriness, the ques- 
 tion of the time of payment should belong to the category of 
 things foreseen. 
 
 Further, it is an error to determine objections which may 
 be taken to the validity of a contract by the law that is re- 
 cognised at the seat of the court, instead of by the law under 
 which the contract itself falls.* No doubt there may be 
 objections which are rested on considerations of the forms of 
 process, and there the lex fori will decide : but it is different 
 with objections depending on material grounds — they deter- 
 mine up to what point the validity of an obligation may be 
 carried, and can therefore be decided by no other law than 
 the local law, which for other purposes determines the 
 vahdity of the obligation.^ 
 
 (4.) Payment of Money. 
 §70. 
 
 We have already noted, in discussing the general principles 
 of the law of obligations, that in cases of doubt the coinage 
 recognised at the place of payment must be taken to be the 
 proper medium of payment. ^ We need only mention one 
 point in this connection which is much controverted, especi- 
 ally in the judgments of English and American courts. 
 
 5 Foelix, i. p. 249 et seq. § 109. See, on the other hand, Kocco, p. 319, after the 
 quotation in Mittermaier ; Zeitschrift fiir Kechtsw. des Auslandes xi. p. 281. 
 
 * Cf. Fcelix, i. p. 237, § 100. [Cf. case of Benton v. Horeau, C. de Cass., 
 swpra, p. 143.] 
 
 ' Savigny, § 374 ; Guthrie, p. 247 ; Demangeat, in note to Foelix, sup. cil.; 
 
 Story, § 330. 
 
 1 In contracts as to landed property, circumstances will frequently compel 
 recourse to be had to the currency of the law of the place where the subject 
 is. See supra, § 66, note 26. 
 
284 [§ 70, 
 
 Suppose that a debtor, who is bound to pay a certain sum 
 at a particular place, is asked for payment at some other 
 place, is the sum to be determined by the nominal or statu- 
 tory relation which the currency of the place in which the 
 demand is made bears to the currency of the place where 
 payment was to be made, or is it to be determined by the 
 rate of exchange current between these two places ? For 
 instance, action is brought in the United States for a debt of 
 £100, nominally payable in England — by statute in the 
 United States the pound is equal to 4 doUars 48 cents,^ but 
 the course of exchange with England gives it a higher value 
 by 10 per cent— is then the pursuer of the action entitled 
 to 448 dollars, or to that sum and 10 per cent, besides? 
 Upon this question there have been conflicting decisions in the 
 courts. The following seems the true answer. In strictness, the 
 creditor is not entitled to require payment to be made at any 
 other place than that originally appointed, nor is the debtor 
 entitled to discharge himself by tendering payment anywhere 
 else ; and, therefore, the sentence of the court must condemn 
 the debtor to pay the sum fixed at the original place of pay- 
 ment according to the statutory equivalent. It might be im- 
 possible to work out such a decree at the original place of 
 payment if the debtor had no sufficient estate there, or if the 
 court of that country should refuse to give legal redress. If, 
 then, the reason for not raising the action at the appointed 
 place of payment be that the debtor has no estate there, the 
 judgment of the court must be in such terms as will make it 
 possible to carry it out at the place where action is brought, 
 and, therefore, since the debtor has failed timeously to make 
 payment at the appointed place, and must bear the conse- 
 quences of that failure, the creditor will receive, in addition to 
 the original sum, enough to pay the act of transmitting that 
 original sum to the place where payment should have been 
 made. If, then, the debtor wishes to pay in bills, or if there 
 is no other way of remitting the money safely {e.g., if it should 
 be impossible to ensure the money that has to be remitted), 
 he must make good to the creditor the difference of the ex- 
 changes in case the rate at the place of payment as compared 
 
 2 There is, howcTer, an exception to this. Story, § 309, note 2. 
 
§ 70.] 285 
 
 witli that of the place of action is above par, while in the 
 converse case he may take credit for the difference. It may, 
 however, be equally convenient for the creditor to receive 
 payment at the place of action ; if in such a case he should, 
 nevertheless, demand payment at the place originally fixed, 
 the debtor by establishing the fact may plead the exceptio 
 doli, and the creditor who has no interest to receive payment 
 there would be satisfied with receiving so much as might 
 be equal to the sum originally contained in the obligation 
 according to the value set upon it by the law of the place of 
 action. Lastly, it may absolutely be for the creditor's 
 advantage to receive payment at the place of action ; in such 
 a case the debtor would be entitled to deduct upon similar 
 grounds the difference between the rates of exchange in the 
 two places.^ In the case of settlements between traders, it is 
 generally in' the interest of the creditor that payment should 
 be made at the place arranged, and that the rate of exchange, 
 if the payment is made by bUls, should determine the 
 amount. In such cases, however, unless there should be some 
 statutory prohibition,* the judgment of the court can only 
 give the pursuer the sum sued for along with the expense of 
 transmitting it safely to the place of payment ; for the mode 
 of payment, which may, for instance, be made by post- 
 office order or by the remittance of specie under insurance, 
 is left to the choice of parties until steps are taken to 
 compel it.^ 
 
 3 L., 2, pr. D., de eo quod certo loco, 13, 4. 
 
 * Of. Allgem. Deutsche Wechsel Ordnung, § 57, rule 2. 
 
 * Cf. Story, § 306 et seq. [All that concerns payment or performance will 
 be determined by the law of the place of payment or performance (Treschow 
 V. Bockelmann, Supreme Court of Commerce of German Empire, 28th June, 
 1875). In an action decided in the Court of Session in Scotland (Ainslie v. 
 Murrays, 17th Nov., 1881, 8 R., 636), a question was raised as to the amount 
 due by a defender in an action in the Scottish court, which had been com- 
 promised on the footing that the defender should pay £4250, and should 
 give the pursuer a power of attorney to sell property in Eangoon to pay 
 this sum pro tanto. It was held in that case that in estimating the price 
 obtained for the Eangoon property, which was paid in rupees, the value of 
 the rupee in Scotland must be taken, as Scotland was the locus solutionis.] 
 
286 [§ 71. 
 
 (5.) Payment of Interest, 
 
 §71 
 
 The obligation to pay interest, in so far as it rests upon 
 special contract, depends, as we have already shown, upon 
 the law of the country where the capital comes to be 
 employed.^ That is the result of the definition of interest : 
 " UsurcB vicem, fructutim obtinent."^ The capital of the 
 creditor yields fruits when joined with property and personal 
 exertions of the debtor ; and of these fruits the creditor gets' 
 a proportionate share. It may be put in this way, that the 
 property and the labour of the debtor are the soil in which 
 that capital of the creditor brings forth fruit.^ As a rule, 
 this operation takes place at the domicUe of the debtor, but 
 it may also take place in some other country, if the debtor 
 has chanced to employ the money in carrying on trade 
 abroad, or in cultivating an estate abroad.* Statutory inter- 
 est, on the other hand, is due to the operation of some other 
 legal relation,^ and is, therefore, subject to the local law to 
 which the other legal relation belongs. For instance, the 
 statutory interest which a buyer must, under certain circum- 
 stances, pay is subject to the same law as the contract of 
 sale. The interest due by a guardian upon money belonging 
 to his ward, which has not been invested at the proper time, 
 is regulated by the law that prevails at the seat of the court 
 which supervises the curatory f and the interest for which a 
 mandatary has to account to the mandant upon sums of 
 money employed by him for his own behoof depends on the 
 local law by which the whole relationship of the mandatary 
 and mandant is to be judged. 
 
 1 See sttpra, §§ 267-68. 
 
 2 L. 34 D. ; D. de mm. 22, 1. 
 
 3 'We cannot take into account here that in many cases the capital yields 
 no profit to the debtor. The use of money is, as a rule, profitable to the bonus 
 paUrfamilias, as the Roman texts say in similar cases. 
 
 4 It is otherwise if a landed property should become a supplementary secu- 
 rity for a loan advanced for other purposes, or for indefinite purposes (Bur- 
 gundus, iv. No. 10). 
 
 ^ Hert, iv. 53 ; Seuffert, Comm. i. p. 254. 
 6 See below, § 106. 
 
§ 71.] 287 
 
 Many authorities lay it down that the law of the place 
 where the contract is made will regulate the maximum inter- 
 rest that can be allowed ;^ others maintain that if a place of 
 payment is specified, the laws that are in force there must 
 rule.* These theories rest upon the assumption that the 
 law which is to rule the obhgation is simply determined by 
 a voluntary submission of the parties. But if parties have not 
 the power to take a foreign law at their pleasure as a rule of 
 determination (as, for instance, two Prussians cannot at their 
 pleasure adopt American law as the rule for a contract which 
 they are concluding as to a subject situated in their own 
 country),' they are just as much incapacitated from doing 
 this indirectly by choosing at their pleasure some other 
 country for the place of performance, or for the conclusion of 
 the contract. And even the adherents of this theory main- 
 tain the impossibility of choosing a foreign place for the per- 
 formance, or the conclusion of the contract, in order to escape 
 from the law of the country to which the parties belong.^" 
 
 The place of performance is, however, like the place of the 
 contract, so far of importance that from it it may be inferred 
 in what place the loan is reaUy to be spent. E.g., a native 
 of this country contracts a loan abroad to meet the expenses 
 of his stay there, and this loan is to be repaid during his 
 stay abroad. The legality of the interest stipulated in this 
 case must be determined according to the law of the foreign 
 country." Conversely, if one lends money abroad to one 
 
 ' Oocceji, vii. 11 ; Kodenburg, iii. p. 2, c. 2, § 6 ; J. Voet, Comm. 22, 1, 
 § 6 ; Mass6, p. 176 (No. 131). 
 
 8 P. Voet, c. 2, § 9, No. 12 ; Everhardus, Cons. 78, No. 24 ; Christianseus, 
 i., decis. 283, Nos. 12, 13. Burgundus also (iv., No. 10, of. with No. 29) 
 belongs to this class ; and Story, § 298 ; Burge, iii p. 774, § 304 e; Foelix, 
 i. pp. 250-3. BouUenois's view is not distinct, ii. p. 472 (of. with ii. p. 446) ; 
 but he, too, seems to take, in cases where a place of payment has been fixed, 
 the law that is there recognised. Bouhier, chap, xxi., No. 194-5, takes a 
 peculiar view. The law of the domicile of the creditor is to prevail, except 
 in so far as he may have subjected himself to another. 
 
 9 Unger, p. 180. 
 
 1° J. Voet, ad loc. cit. : " Modo etiam bona fide omnia gesta fuermt nee 
 consuUo talis ad mutwwm contrahendum locus eledus sit, in quo gramiores 
 essent, quam. in loco in quo alias controihendwm, fuisset, prohat(B inveniuntur." 
 Story, § 304. 
 
 " See, besides, § 66, note 20. 
 
288 [§ 71, 
 
 wlio is to keep it for a considerable time, and to continue to 
 pay interest upon it after he lias returned home, it may then 
 be taken that the loan is to find its real application at the 
 domicile of the debtor. Any agreement that may be made 
 that the creditor is to receive repayment of capital and inter- 
 est at his domicile, can certainly never determine ^^ the lega- 
 lity of the rate of interest.^^ 
 
 Many authors have approved of the theory that forbids the 
 judge to countenance any higher rate of interest than that 
 which is sanctioned by the law of the place where the court 
 is situated, since, according to the spirit of the laws that fix 
 the maximum rate of interest, no judge should lend his 
 authoritative sentence to the furtherance of any undertaking 
 so immoral and prejudicial to public interests as an usurious 
 contract is." 
 
 That by foreign law, to which the transaction is sub- 
 ject, the creditor could have recovered the stipulated 
 interest from any other debtor belonging to, that country, 
 and the debtor could have been forced to pay it to 
 any other creditor, is not sufficient to disprove the cor- 
 rectness of this last rule, although it may raise a doubt 
 as to whether the transaction can properly be held to be 
 usurious. Laws against usury are intended to protect the 
 
 12 The domicile of the creditor may also be of importance. If two natires 
 of this country enter upon a contract of loan in a foreign country, it is more 
 easily inferred that the transaction is in fraudem legis, or that the money 
 is to be spent at their domicile, than it would be if the creditor were a 
 foreigner. The term in fraudem legis may be fitly applied to cases in which 
 parties, to escape from the usury laws of their own country, choose some 
 foreign country as the place in which the contract shall be made, or shall 
 eventually be performed. In reality, the parties, in such a case, hold their 
 own country to be the territory to which the whole transaction belongs. A 
 mark of this would be that the creditor cannot show any interest in haying 
 the contract performed abroad (Thol., § 65, 2). 
 
 18 Thol., 85, note 4, holds that the lex domicilii of the debtor should, as 
 a rule, prevail. This theory comes very close to our own, since in most 
 cases the money will be spent at the debtor's domicile. [The Court of Lyons 
 has determined that the rate of interest upon a loan will be settled by the 
 law of the country where the contract of loan is to be executed — i.e., of the 
 country in which the debtor receives the money (Kockert, 3rd Aug., 1876.] 
 
 " Savigny, § 374 ; Guthrie, p. 251 ; Demangeat on Foelix, i. p. 252, note 
 on the decision of the Supreme Court at Celle, 16th September, 1852. 
 
§ 71.] 289 
 
 debtor from oppression ; but this can, only come within the 
 cognisance of the law of the place where the court is situ- 
 ated in eases where the borrowed money is to be spent at 
 that place, and the maximum allowed by the law of that 
 place is exceeded. Another reason for rejecting the theory 
 which proposes that the lex fori should rule, is the fact that 
 by the provisions of the laws of some countries a higher rate 
 of interest is allowed in dangerous transactions and in trade 
 loans ; while the high rate of interest prevailing in other 
 States is often justified by the insecurity of the law of the 
 land or the wider prevalence of speculation.-^^' ^^ 
 
 As regards penal interest for delay, many^^ decide in favour 
 of the law of the place of payment, although they adopt, as a 
 general rule, the principle that the law of the place where the 
 contract is concluded should rule. We have already {supra, 
 § 69) tried to controvert this view, which rests upon the dis- 
 tinction between the immediate and the accidental results of a 
 contract. The creditor may, however, claim recompense for all 
 the damage caused by the debtor's Tnora, and if we assume that 
 
 15 Cf. supra, § 66, note 24 ; Foelix, i. p. 251, note 1 ; and Mass^, p. 176. 
 Judgment of the Royal Court of Bordeaux of 26th January, 1831 (Sirey, § 1, 
 ii. p. 178). The grounds on which this case was decided are in favour of 
 stipulations for interest that are good according to the law of the domicile, and 
 of the place where the contract was made, although they are illegal in Prance, 
 and such stipulations are sustained even for a period during which the parties 
 have lived in France. In accordance with a decree by the Court of Austria 
 of 12th January, 1787, there is in that country a statutory provision that 
 interest which has been stipulated in accordance with the law of the place 
 where the contract was made must in bankruptcy be ranked by Austrian 
 judges as valid, although the rate may be higher than the custom of Austria 
 permits (Piittlingen, p. 104 ; Unger, p. 186). 
 
 1^ See the discussion in § 68, against Savigny's theory (§ 374, Guthrie, 
 p. 252), according to which the lex fori must rule in cases where the interest 
 is allowable by it, but illegal according to the law which determines other 
 questions as to the transaction. 
 
 !'■ Fcelix, i. pp. 251-53 ; Maas^, p. 184. Older writers say that the law of 
 
 the place must rule, "vjyi mora conPracta, facta est." Bartolus in 1, 1, 0. 
 
 Trin. No. 18 ; Curtius Rochus, de statutis, sect. 9, § 49. Boullenois, ii. p. 252, 
 
 " Oic la deimewre est encourue," cf. pp. 478-79. If this principle were correct, 
 
 questions of warranty as to the sufficiency of goods sold would have to be 
 
 determined by the law of the place where the goods were manufactured, 
 
 if the insufficiency arose there, although both parties might be ignorant of 
 
 what place that was 
 
 U 
 
290 [§§71,72. 
 
 the damage is represented by the interest allowed by the cus- 
 tom of the place of payment, he is entitled to claim that as his 
 recompense, a circumstance that is of particular importance in 
 regard to drafts and bills in use among merchants. We 
 must assume, in order to entitle any person to claim the rate 
 of interest allowed at the place of payment in a suit raised 
 somewhere else, that the creditor so claiming had need of the 
 money at the place of payment. He is, therefore, entitled to 
 claim that rate of interest, but with that he must be content, 
 since it was at the place of payment that he had a need for 
 the money ; any demand in excess of that would be more 
 than the damage the creditor is presumed to have suffered. 
 The judicial decisions cited by Story have all reference to 
 cases of this kind. 
 
 (6.) Parties to Obligations — Agency. 
 §72. 
 
 Where several persons have jointly made some stipulation, 
 or contracted some debt, the local law by which the import 
 of the obhgation generally is to be determined, will also decide 
 whether each of the parties has a right to exact, or a duty to 
 discharge, the whole obligation. 
 
 If the obhgation does not rest upon bona fides, or if the 
 special character of the contract (e.g., ex delicto) does not 
 require the appUcation of the lex loci actus, and if there is 
 no room to infer from the intention of parties that the duty 
 undertaken by them is to be read according to the law of the 
 place of performance, then the lex domicilii will settle for 
 each debtor whether or not he is bound to satisfy the whole 
 or what part of the debt, or whether he is entitled to refer 
 the creditor to some other debtor (benefixyium divisionis, 
 excussionis.y- 
 
 Story ^ takes the following illustration : By the law of 
 England a double pohcy of insurance upon a ship for the 
 same voyage is quite competent ; in case the ship is lost, the 
 
 1 These pleas belong to material law, and do not, therefore, depend upon 
 the lex fori; Burge, iii. p. 765 ; Foelix, i. p. 254 ; Story, § 3226. 
 
 2 § 3276. 
 
§ 72.] 291 
 
 insured may require tlie whole sum insured from either of 
 the underwriters he pleases, and then the underwriter who 
 pays has ^ro rata a right of recourse against the other. By 
 the law of France the first pohcy, which covers the full 
 value of the subject, is the only vahd policy, and the first 
 underwriter, if he should have to pay, has no recourse at all 
 against the second.^ Now, in this case, the insurer who has 
 had according to Enghsh law to make good the obUgation 
 has no action against a French insurer, and neither has the 
 first insurer, who has by French law become answerable, any 
 recourse against the second insurer in England. There is no 
 recourse against the French insurer, because, in binding him- 
 self, he did not mean to make himself liable to any such 
 claim, and the Frenchman has no right of recourse against 
 the other, because French law, which supplements and 
 determines his declaration of wiU, knows of no such right.*- ^ 
 It is a very important and very common question whether 
 
 ^ Code de Commerce, art. 359. 
 
 * So too Story, for this reason : " If a different yiew were adopted, there 
 might be an entire want of reciprocity." 
 
 ' Bm&igon, Traits des. assur. i. chap. 4, sect. 8, § 2, says as to the local 
 law of contracts of insurance : " Contracts of insurance made abroad between 
 Frenchmen will be determined in France according to French law ; for the 
 law of their country follows them everywhere. In the case of such contracts 
 between a Frenchman and foreigners, concluded abroad, the law of the place 
 where the contract was made is applicable. The same is true if a French- 
 man in a foreign country carries on a business of insurance on his own account." 
 These rules, however, are not universally applicable. If one carries on an 
 insurance business at a particular place aa a profession — the usual case — the 
 lex loci contractus wUl decide all questions without reference to the domioUe 
 of any person insured. See Voigt., and Heiniohen's Archiv. fiir Handelsreoht 
 (1858) pt. i. p. 210. On the other hand, if two subjects of this country happen 
 to make a contract of insurance abroad, the first rule given by Em^rigon is 
 applicable. Indirectly the obligation of the insurer may be affected by the 
 law of the place where the adjustment is made. • Cf. Voigt. p. 211. " It is 
 well known that the adjustment between the interests of the ship and of the 
 cargo involved in the contract, after the voyage is completed, when ship and 
 cargo are separated partly or wholly, wiU be made according to the principles 
 of the law there recognised. By this foreign law there may be a higher or 
 lower rate of contribution laid upon the owner or the freighter than there was 
 by the lex loci contractus, and in regard to this the insured must be kept 
 scatheless by the insurer." As to the case of a contract of insurance con- 
 cluded through an agent, see infra, p. 293, text and notes 10 and 11. 
 
292 [§ 72. 
 
 a contract, concluded by any one as representative of another, 
 is in a legal sense made at the place where the principal is, 
 or where his agent is. Fcelix, i. p. 244, and several of the 
 decisions given by Story (§ 2866) take the latter view, 
 for the reason that the mandatary fully represents the 
 mandant, and therefore the case must be treated as if 
 the mandant had come to the place where the contract 
 is concluded.^ 
 
 Two views of the case may be taken ; first, we may hold 
 the contract to have been made by the agent or mandatary, 
 and to affect the principal or mandant only by virtue of the 
 contract or legal relation that exists between him and his 
 agent. '^ This view will give a result contrary to that ex- 
 pressed above, for, as the agent's contract only takes effect as 
 regards the principal by force of the contract between these 
 persons, and only so far as that contract permits, the obliga- 
 tion of the priacipal must be determined by the law to which 
 the contract of mandate itself is subject,^ and that, as a rule, 
 wUl be the lex domicilii of the principal By the second 
 view, which regards the contract as concluded with the prin- 
 cipal himself, and looks upon his mandatary as a messenger, 
 it is still more difficult to reach the result stated above. If 
 we consider the matter as if the intention to contract did not 
 originate with the agent, but with the principal, that inten- 
 tion of course originated where the principal happened to 
 be, and the case we are considering cannot be distinguished 
 from that of a contract concluded by letter or telegram.^ The 
 theory which regards the contract as if it were concluded by 
 a principal who is personally present on the spot, rests upon 
 a contradiction ; it looks upon the principal as the party to 
 the contract, but makes the law of the agent the test by. 
 which the contract is tried. 
 
 It is, however, correct to say, that within the limits of the 
 authority given to the agent, his representations, and the law 
 
 " So too Rocco. p. 380, as quoted by Foelix. 
 ' So Thol, Handelsrecht, ii. § 25. 
 
 * Unusual limitations of agenoy^can'only be regarded if proper notice is given. 
 Thol. Handelsr. § 31, c. ; Savigny, Obligationenrecht, ii. pp. 60-1. 
 ' See on that point infra § 73, and supra § 37. 
 
§ 72.] 293 
 
 to wHch these are subject,^" must rule, but beyond these 
 limits no responsibility attaches to the principal. 
 
 In support of the opposite view, it is urged that, if the 
 other party to the contract, in reliance upon the law of the 
 place of contract, has bona fide held the powers of the agent 
 to be larger than they were, it is necessary for the sake of 
 protecting commerce to apply the lex loci contractus. This 
 is, however, a mistake. If any person contracts with one 
 who describes himself as the agent of the subject of another 
 country, he has a plain intimation that he should inform 
 himself as to the laws of the place where that authority was 
 conferred. If he neglects this, he no more deserves protec- 
 tion than if he had contracted without inquiring whether 
 there was any authority at all ; in both cases he may have 
 recourse to the express or tacit representations of the agent 
 to which he trusted. 
 
 When we consider the point more closely, it will be seen that 
 to determine the authority of the agent by the lex loci con- 
 tractus would be quite inconsistent with the security of 
 commerce. Statutory representatives of legal persons and 
 those who represent others by virtue of family relationship 
 as well as ordinary business agents, could, by contracts 
 made abroad, where the law of the land gave them wider 
 powers, bind the persons represented by them in a way 
 entirely unforeseen. What use would there be, for instance, 
 in a joint stock company restricting the powers of its manager 
 by requiring the concurrent authority of a board of manage- 
 ment, or of a general meeting of shareholders, when he would 
 not be bound thereby in any contract concluded abroad ? 
 The owner or part owner of a ship who can, according to the 
 law of the place where the shipping company exists, free 
 himself from liabiUty by abandoning the ship, might, by a 
 contract of the master's concluded abroad, be bound to pay 
 something more.^^ But although, in conformity with the 
 
 1° That is to say, the interpretation of contracts made by the mandatary 
 will depend upon the lex loci actus. See the discussion as to the interpreta- 
 tion of contracts, § 81. 
 
 " See the case given by Story, § 286c. " The question whether a third 
 party, as partner of the debtor in the contract, can be made answerable for 
 the prestations of a contract, is not to be ruled by the law of the place where 
 
294 [§ 72. 
 
 general principles wMcli govern the interpretation of con- 
 tracts, the law that is in force at the place where the autho- 
 rity originates, must be applied to ascertain the extent of the 
 authority conferred, there may indirectly be established an 
 obligation upon the principal to answer to the other party 
 as the lex loci contractus may direct ; e.g., a joint stock 
 company appoints some one in a foreign State to be its per- 
 manent agent, and advertises the appointment in the public 
 newspapers of that country without noticing the limitations 
 imposed on such an appointment by the law of the domicile 
 of the company. The public are in such a case entitled to 
 hold that the authority of the agent is that which such a 
 person has by the law and the usage of their own country.^^ 
 
 the contract was made, but by the law of the place where the partnership was 
 constituted." Judgment of Supreme Court of Appeal at Liibeck, 31st March, 
 1846 (Seuffert, ii, p. 324). Public intimation of the responsibility of the 
 partners is only in so far necessary as they are required by the law of the 
 place where the company has its domicile (Fcelix, ii. p. 33). 
 
 ^^ [Story (2866) holds that the law of the place of the contract, and not that 
 of the domicile of the mandant or of the constitution of the mandate, will 
 regulate the measure and extent of the obligation incurred ; this result he 
 considers most equitable, and it seems to be adopted by the decisions of the 
 courts of America ; it has been adopted too in Germany (Harvey ■». Bngelbert, 
 Court of Bremen, 5th March, 1877). The opposite rule, however, prevails in 
 England (see Story as cited). Brodie in his notes on Stair, vol. ii. p. 956, thus 
 sums up the matter : " The clear result then is, that the transactions must be 
 held to have reference to the master's implied mandate " (the commentator 
 is dealing with contracts by a shipmaster), " according to the law of his own 
 country^a mandate which it is the duty of those who deal with him as an 
 agent to ascertain the extent of ; and that, while they never can justly com- 
 plain of having their right limited by such a principle, the shipmaster cannot 
 be supposed to intend an abuse of his powers ; whence the very gist of all 
 contracts, the understanding of parties, would be wanting to infer a right, ex 
 lege loci contractus, which the scope of his authority did not import." 
 
 Mr. Maclachlan, in his work on Merchant Shipping, criticises the views 
 advanced by Mr. Story and Mr. Brodie, and adopts as the rule in such con- 
 tracts the law of the flag which the ship carries, a law which must be known to 
 those with whom the master contracts (p. 180). This conclusion is rested mainly 
 on a decision of the Court of Queen's Bench, Lloyd v. Guibert, L. K. 1, Q. B. 
 115, in which Blackburn, J., says in language which is applicable generally 
 to the law of mandate : " We think that the power of the master to bind his 
 owners personally is but a branch of the general law of agency. And it seems 
 clear that if a principal gives a mandate to an agent containing a condition 
 that all contracts which the agent makes on behsJf of his principal shall be 
 
§§72,73.] 295 
 
 We must distinguish between tlie liability incurred by the 
 principal by his contract and the constitution of a real right in 
 things that are in the custody of his agent. If ihe law, 
 which is recognised at the place where the subject is situated, 
 allows real rights to be constituted by contracts made between 
 the agent and third parties, without considering the nature of 
 the agents' authority,i^ then the principal must lose his 
 rights without regard to the law, which determines the 
 character of the agency in other respects. This is the result 
 of the universal validity of the lex rei sites in the law of 
 things, and is less hazardous for the principal who has 
 actually put his whole property into the hands of an agent, 
 and can incur no obligations beyond the value of the property 
 so committed to his charge. 
 
 (7.) CoNTEACTS Concluded by Letter. 
 
 §73. 
 
 The discussion of contracts concluded by agents leads 
 naturally to the question, by what local law contracts con- 
 cluded by letter between persons who never meet are to be deter- 
 mined. We have already (p. 266) discussed the question in so 
 far as the form of the contracts is concerned, and the result of 
 the principles we have assumed is that the general rule whereby 
 the laws of the domiciles of the two parties decide, must be ap- 
 plied. No reason at all can be given why either the offerer or 
 the acceptor should be entitled to appeal exclusively to the law 
 
 subject to a, defeasance, those who contract through that agent, with notice 
 of that mandate containing such a limit on his authority, cannot hold the 
 principal bound absolutely. And, we think, as far as regards the implied 
 authority of the master of a ship to bind his owners personally, the flag of 
 the ship is notice to all the world that the master's authority is that conferred 
 by the law of that flag, — that his mandate is contained in the law of that 
 country,with which those who deal with him must make themselves acquainted 
 at their peril." 
 
 This doctrine (which is in substantial harmony with that of the text) may 
 be applied generally to the law of agency or mandate, where the agent is 
 known to be acting under a mandate given him by a foreigner.] 
 
 ** E.g., by the law of England (5 and 6 Vict. c. 36) an agent provided with 
 certain papers, and actually in possession of goods, may effectually deal with 
 these as if he were the owner, in so far as the party with whom he deals is 
 in good faith (Of. Stephen ii. pp. 76-7). 
 
296 [§ 73. 
 
 of his own domicile. Each party can only hold the other 
 to be bound in the sense in which the law of that other's 
 domicile permits.'^ It is of no importance in which of the 
 two places the contract must be legally held to have been 
 made so as to have the effect of preventing either party from 
 resiling ; and as various deliverances have been given by 
 various codes upon this question also, it is of the less moment. 
 Many authors, no doubt, lay stress on this alone.^ 
 
 Wachter^ and Savigny* are of the view we have taken. 
 The latter no doubt makes this distinction, that where there 
 is a definite place of performance fixed the law of that place 
 is alone to be apphed. It is not necessary again to discuss 
 this point, resulting as it does from the principles adopted by 
 Savigny.^ 
 
 The case of the domicile of the writer and the place from 
 which he dates his letter being different, is generally passed 
 over ; but it must be an event of common occurrence, as, for 
 instance, when one for some time is engaged in carrying on 
 trade in a foreign country. It may easily be solved upon the 
 general principles we have assumed. Under the same con- 
 ditions under which the law of the place where a contract is 
 made is applicable to a verbal contract, is the law of the 
 place where the letter is dated to be preferred to the law of 
 the domicUe of the writer.^ "We shall find an important 
 application of this rule in the law of bills (cf. § 85, 1). 
 
 ' We must premise that the domicile, and the place from which the letter 
 is dated, coincide. 
 
 2 The deliverance of Casaregis, disc. 179, No. 10 ; of Burge, iii. p. 743 ; of 
 Story, § 285; of Bornemann, i. p. 65, and of Foelix, i. p. 244, is for the 
 domicile of the acceptor ; a judgment of the Supreme Court of Appeal at 
 Dresden (reported by Kritz, ii. p. 120) ; Mass^, p. 130 (No. 94) ; Giinther, 
 p. 750 ; Seuffert, i. p. 252, on the other hand pronounce for the domicile of 
 the offerer. See, too, a judgment of the Appeal Court of the Ehine at Berlin, 
 21st September, 1831 (Volkmar, p. 141). 
 
 3 ii. p. 45. 
 
 4 § 371 ; Guthrie, p. 216. 
 
 * See above, § 66, note 5 ; Goschen., Civilrecht, i. § 31, p. 114. The Prus- 
 sian A. L. E. § 112, makes the law of the domicile of that party, according to 
 which the transaction can best be carried out, rule the form. We have already 
 shown how mistaken an application of the well known rule of Roman law 
 this is. 
 
 ^ Particularly if bona fides requires it. See above, p. 268. 
 
§ 73.] 297 
 
 If a mandatary, in consequence of a mandate contained in 
 a letter, makes a contract at his own domicile and in his own 
 name, the mandant is liable under the conditions and to 
 the extent prescribed by the law of the agent's domicile ; 
 not, indeed, because that is the place where the contract 
 was made, but because the agent has without doubt bound 
 himself by that law, and is to be kept scatheless at the 
 hands of his principal even according to the law of his own 
 domicile.'' If the agent should buy for himself the goods en- 
 trusted to him, the law of his domicile wUl rule this sale ; for 
 he would have to give any other purchaser that privilege, and 
 he has himself contracted under the same conditions as any 
 other purchaser.* If the mandatary does not make the con- 
 tract in his own name, the principles we have already laid 
 down as to the contraction of obligations by an agent will 
 apply.9 
 
 If any person, in consequence of a contract concluded by 
 letter, makes advances to another ; if, for instance, an agent 
 who has not received any remittances from his principal buys 
 goods for him, then, although the obhgations of both parties 
 are to be determined by the laws of their domiciles, such a 
 person may calculate upon receiving the interest current at 
 the place where the advance was made. This is the result 
 both of the principles of mandate, and of those applicable to 
 the interest upon a loan ; of the former, because the agent 
 must be kept scatheless, and that cannot be unless he receives 
 the interest usual at his domicile ; of the latter, because the 
 
 ' Of. supra, p. 128. Massd, p. 134-6 (Nos. 137-96), Casaregis ; Story, § 285, 
 and the decisions there cited, all confirm this. The grounds assigned are, 
 however, different. Story derives it from the principle that the mandate 
 must be held to have been completed at the domicile of the agent. Mass6 
 concurs with this on grounds of expediency — an opinion which is no doubt at 
 variance with the rest of his theory (" Le eontrat du commissionaire perdrait 
 toute son utiliU si h commiissionaire ne pouvait agir qu'aprk amoir ripondv, 
 par lettres qu'il accepte.") 
 
 ^ Masai, p. 136-7, " Le mandat absorbe la vente." 
 
 " A judgment of the Supreme Court of Berlin laid down this doctrine : 
 " With reference to a commission for the purchase of corn for spring delivery 
 given to an agent in Berlin, the usage of trade in Berlin, by which delivery 
 must be made up to a particular day, will be applicable, if this usage was 
 known to the party giving the order." 
 
298 [§§73,74, 
 
 rate of interest on a debt is to be ruled by the law of the 
 place where the capital is spent. 
 
 (8.) Ratification. 
 §74. 
 
 A kindred question is the question whether the place 
 where a contract is ratified, or the place where it is originally- 
 drawn up, is to be held as its true place. 
 
 Casaregis ^ decides that it must be the place where it was 
 originally made. He says : " Ratio est, quia ille ratificationis 
 consensus, licet emittatur im, loco ratificantis, et ibi videtur 
 se unire cum altero prcecedente gerentis consensu, qui venit 
 a loco gerentis ad locum ratificantis, retrotrahitur ad tempus 
 et ad locum,, in quo fmt per gestorem initus contractus." 
 But the question is not to be so absolutely decided. When any 
 one becomes a party to a contract already validly concluded 
 between others, it may very well be that he can only ratify 
 that contract to the effect and in the terms in which it is 
 already conceived ; and it was that case which Casaregis had 
 in his view. If, on the other hand, the contract was from the 
 first concluded on condition of obtaining the approval of that 
 third party, this case is to be considered as identical with the 
 case where one sends an offer to another ; the representative 
 of the third party has only thrown the contract into the 
 sort of shape which is likely to meet the approval of his 
 principal.^ The place where the contract was drawn up 
 is alone of importance for the interpretation of the contract 
 in its true sense. ^ 
 
 On the other hand, where a contract already con- 
 cluded is ratified by the same persons, the question whether 
 the law of the place where it was first drawn up, or of the 
 place where the forms required by statute or stipulated by 
 
 1 Disc. 179, § 20, according to the citation in Story, § 286. 
 
 2 For instance, a guardian contracts on behalf of a ward on condition that 
 he shall obtain the approval of the court which superintends the curatory. 
 
 3 Cf. Mass6, p. 137. Foelix (i. 245) at first proposes that the place where 
 the contract is originally drawn up shall rule, because the agent represents 
 his principal, but subsequently (i. 246) decides the case given in the preceding 
 note in the opposite way. 
 
§§ 74, 75.] 299 
 
 express agreement of parties, are gone through, is to rule, 
 depends, as Hert * properly remarks, in the first place upon 
 whether the form serves merely for authentication or is re- 
 quired to give validity to the deed. In the former case, the 
 place where the contract is put into the required shape can- 
 not be held to be the place of the contract or decisive as to 
 it ; in the second case, it is truly the locus contractus,^ but 
 the previous agreement of parties is not without importance, 
 in so far as antecedent negotiations may be used to interpret 
 a contract'. 
 
 (9.) Alteration of Existing Obligations — Bolus, Culpa, 
 Mora — Destruction of the Subject of the Obligation. 
 
 §75. 
 
 The alteration of existing obligations by contract needs no 
 further elaboration. If a new contract is added on to an ex- 
 isting contract, the place of the latter contract is not identical 
 with the place of the former. The second contract concluded, 
 we shall say, at B is formally valid, if it is in .conformity with 
 the law recognised at B, although a different form is 
 necessary at A, the place where the first and principal con- 
 tract was made.-^ 
 
 On the other hand, the alteration of obligations through 
 the fault of the debtor is to be ruled by the law which is 
 generally applicable to the interpretation of the contract. If 
 the debtor produces an alteration of the obligation through 
 culpa or dolus, that is merely an indirect result of the fact 
 that by the obligations of the contract he was bound to act 
 
 * II., 55. Of. Burge, iii. p. 775. 
 
 * Holzschuher, i. p. 74 ; Hauss, p. 41 ; Mass6, ii. p. 138 ; Foelix, i. § 113, 
 p. 258. Judgment of the Supreme Court of Appeal at Jena of 26th October, 
 1826. Seuffert, i. p. 157 ; Mittermaier, i. § 31, ad fin. 
 
 1 For instance, in one country contracts must he in writing ; the parties to 
 such a contract add thereto a pactum displicentim in some State in which 
 a contract of the kind may be informally entered into. It must, however, 
 be kept in view that it may be doubtful, looking to the reference to the 
 former contract made in a different country, whether the parties really 
 intended to enter upon a binding engagement, since a particular form was 
 required at the first place, and they did no more than make an informal 
 agreement at the second. 
 
300 [§ 75. 
 
 differently.^ Nothing, therefore depends upon the place in 
 which he has, by reason of this act of culpa or dolus, incurred 
 liability ; the law of this place is only so far of importance as 
 the amount of compensation due to the creditor is to be 
 determined by it.^ We have already examined {supra, § 69, 
 note 2) the opposite theory (FoeUx, i. § 109, p. 254), which 
 takes as its fundamental rule the law of the place where the 
 illegal omission or act has been done. The same principles 
 will determine alterations caused by delay, mora, whether it 
 be on the part of the debtor or the creditor. The liabihty 
 of the debtor arising from m,ora, is identical with his obli- 
 gation to timeous performance, and the loss suffered by 
 the creditor in consequence of the failure to accept performance 
 is the immediate consequence of the limitation of the debtor's 
 liability contained in the original contract of obligation 
 to which he was a party.* The disadvantageous results of 
 denying liability in an action, are to be considered as purely 
 penalties imposed upon the debtor ^ in the course of process, 
 and depend, therefore, upon the law of the place where the 
 suit is proceeding. 
 
 After what we have already said it cannot be doubted that 
 any alteration of the obligation by accident, e.g., by the 
 destruction of the object of the contract,® or by a commodum 
 attaching to it (fruits) is to be ruled exclusively by the local 
 law to which the contract is generally subject.^ 
 
 2 Cocceji, de feud., vi. § 7 ; Hert, iv. 55 ; Seuflfert, Comm. p. 254 ; Muhlen- 
 bruch, § 74 ; Story, § 307. 
 
 ^ E.g., lis, person uses an article committed to his charge in an illegal 
 way, he must restore the current price of that article at the place where he has 
 so used it. Cf ., Story, § 307, who notes that if a vessel has been used in violation 
 of a contract, the amount of damages must be determined by the rate of interest 
 current in that place. 
 
 * Of. authors cited in note 2. As to interest upon postponed payments see 
 supra, § 71. Foelix is of a different opinion. Bartolus ad L. 1 0. de S. Trin., 
 No. 18, holds that the law of the place "ubi contracta est mora" inust decide. 
 
 5 E.g., by Boman law in consequence of the provisions of 18th Nov., c. 8j 
 the application of which at the present time is not, however, certain. 
 
 « Cf. Arndt's Pandects, § 253. 
 
 7 Savigny, § 374 ; Guthrie, p. 256-57. 
 
§ 76.] 301 
 
 (10). Transference of Obligations — Assignation. 
 
 §76. 
 
 The transference of an obligation to some other person as 
 creditor is subject to the local law to which the contract is 
 generally subject : the question whether an obligation has 
 been validly transferred, is identical with the question whether 
 an obhgation stiU subsists for the advantage of the former 
 creditor, or whether another person can claim the advantages 
 of it for himself^ The lex domicilii of the debtor will there- 
 fore, as a rule, determine the question. 
 
 But the assignation or transference of a right to compel 
 implement rests also upon an independent transaction be- 
 tween the former creditor and his assignee, it may be upon 
 a sale between them. The essentials of this independent 
 transaction and its operation depend upon a different local 
 law from that which rules the obhgation which is transferred. 
 If the transference or assignation of the obhgation, con- 
 sidered as an independent transaction between the original 
 creditor and his assignee, is valid, the debtor plainly has no 
 interest to refuse payment to the assignee. If he obeys the 
 will of the original creditor, vaHdly declared, that he shall 
 pay to the assignee, he is protected in any question with the 
 original creditor by the exceptio doli, and he has no further 
 interest in the matter. The case stands thus : — the debtor is 
 free if he pays to a creditor who has right as assignee by the 
 law that rules the obligation which has been assigned, but he 
 is also free if he pays to a creditor who has right by the local 
 law that regulates the independent transaction. An excep- 
 tion to the former rule occurs only if the debtor knows for 
 certain that the creditor has not yet truly assigned his rights 
 to the pretended assignee according to the law that regulates 
 the assignation ; the debtor who should in such a case plead 
 payment would be met successfully by the replica doli. 
 For it must be held to be in accordance with all systems of 
 
 1 Assignation of a right of action is by Eoman law in its form merely a 
 mandate to sue, but in its results it is the same as a real transference of the 
 right (Arndt's Pandects, § 254, note 4). 
 
302 [§ 76. 
 
 positive law, that no debtor is entitled to pay to one wliom 
 lie knows not to have right to the debt as against the 
 original creditor.^ 
 
 This is the only theory which can be actually put in force 
 without hardship. If the local law to which the original 
 contract was subject were alone to decide, the right of the 
 creditor on the one hand would be endangered, and on the 
 other could, in many cases, not be transferred without great 
 difi&culties : the former, because a declaration of will, which 
 by the lex loci actus would have no binding force, would, by 
 the law of the place of the original obhgation, transfer to 
 the assignee the obhgation itself, or a right to claim upon 
 it; the latter, because it would frequently be difficult, or 
 perhaps even impossible, in a foreign country to observe the 
 requirements of an assignation according to the local law 
 applicable to the obligation so assigned. If, on the other 
 hand, the law to which the assignation as an independent act 
 is subject, were to rule, we should require the debtor to 
 know all kinds of foreign territorial law, that he might at 
 his own risk determine what the right of any pretended 
 assignee was, — a requirement all the more unfavourable since 
 the debtor has no power either to foresee or to prevent the 
 assignation. 
 
 On these principles we can easily determine what is the 
 effect of an arrestment of a right to enforce implement or 
 payment which is said to have been already assigned. Pay- 
 ment made by the debtor in bona fide in accordance with the 
 law that regulates the principal obhgation in question must 
 
 2 Judgment of the Supreme Court of Appeal at Liibeok, 29tli November, 
 1855 (Frankfurt, Coll. of Eomer, 2, p. 263) and 31st March, 1856 (p. 359). 
 " Questions as to the essentials of the assignation are ruled by the law of the 
 place of the assignation." In both cases it may be observed that the foreign 
 law was favourable to the right claimed by the pursuer. On the latter 
 judgment of. Seuffert, vol. ii. p. 162. Judgment of the Supreme Court of 
 Appeal at Liibeok of 14th September, 1850 (Seuffert, vol. x. p. 122, reported 
 from the collection referred to, vol. ii., p. 100): "The form of the assigna- 
 tion is fixed by the law of the place in which it was carried through." In 
 this case, too, the law of the place of assignation was favourable to the 
 transference of the right. That the form should be determined by the law 
 of the place where the assignation was carried through, is a consequence of 
 the rule Zooms regit actum." 
 
§ 76.] 303 
 
 be recognised by all creditors ; the debtor could not be forced 
 to make payment a second time, even althougli tlie assigna- 
 tion were not yet validly completed according to tbe local law 
 wbicb regulates it. But if payment bas not yet been 
 made, the debtor cannot appeal to the territorial law tbat 
 regulates the principal obligation, with a view of disputing 
 the validity of the arrestment : for by laying on this arrest- 
 ment it is asserted that an assignation, if such there be, is 
 invalid by the local law that regulates it : until this question 
 between the arrester and the pretended assignee is determined 
 no bona fide payment can be made. 
 
 It, has been said that the lex domicilii of the creditor 
 alone can determine the vaHdity of assignation or transference 
 of a right to demand implement,* because that right is 
 merely a jus incorporale, and, therefore, as in the case of 
 moveables, the rule, " Mobilia sequuntur personam (sc. 
 domini sive creditoris^") applies. We have already seen 
 that this rule cannot be maintained to any such effect ;® the 
 fact of the universal validity of the domicile of the creditor 
 caimot, therefore, be estabHshed by it. But it is true that the 
 result of that theory, as a rule, coincides with the result of our 
 own, for assignations are generally made at the domicile of 
 the creditor.® This is indirectly recognised by Story himself, 
 who determines the validity of the indorsation of a bill by 
 the law of the place where it is made.' 
 
 The law to which the obhgation is generally subject must 
 determine whether the assignee can raise an action in his 
 own name against the debtor, or must do so as assignee alieno 
 notrivne. If this law recognises assignations in the strict 
 sense only, so that the new creditor is only recognised as the 
 procurator in rem, suam of the original creditor, it is not 
 
 ' So Story, § 395 et seq., and the judgments of English and American 
 Courts there cited. 
 
 * See particularly the citation from Livermore's " Dissertations " in Story, 
 p. 537, note 2. 
 
 ^ See stipra, §§ 59, 60. 
 
 ' The judgments given by Story in detail at the passage cited, in which 
 domicile and place of assignation are the same, serve to confirm the view 
 taken in the text. 
 
 ^ Story, § 316a. 
 
304 [§ 76. 
 
 possible that the debtor should by an assignation in a foreign 
 country be placed in any less favourable position, although 
 the difference may be only formal. But if that law allows a 
 complete transference of the obligation, this further question 
 must be decided, viz., whether such a transference was really 
 entered into according to the law which is apphcable to the 
 assignation.® Both local laws must, therefore, concur in giving 
 the new creditor right to sue in his own name, before he can 
 do so. On the other hand, the law of the country where the 
 court is, is in this view unimportant. Although the creditor 
 is as likely to come by his own whether he sues alieno nomine 
 or suo nomine, the question as to which is correct depends 
 upon the provisions of material and not formal law.^ 
 
 We must determine in the same way the competency of a 
 transference or assignation of the rights conferred by an 
 obligation. If certain rights, or rights under certain circum- 
 stances, e.g., rights involved in a depending action (res liti- 
 gioscB, cf. L. 3, D. de litigiosis, 44, 6),-^" cannot, according to 
 the local law to which they are subject, ^^ be made the subject 
 of assignation, the debtor need not pay any heed, of course, to 
 an assignation carried out in a foreign country. ■^^ If assigna- 
 tion is permitted by this law, but forbidden by the law of the 
 place where it was carried out, then the assignee cannot 
 appeal to the lex loci actus in respect of the form of the 
 assignation.-'^ 
 
 * The intention of the creditor really determines this question. 
 
 ' For different views see Story, § 565 et seq. There are not, however, 
 wanting decisions which proceed from the point of view here assumed, and 
 these are approved by Story. 
 
 1" The Prussian A. L. E. I., ii. §§ 383-4, expressly repeals the prohibition 
 on the assignation of res Utigiosm. Cf. the provisions of the Code Civil, 
 art. 1699. 
 
 " This is, as a rule, the lex domicilii of the debtor. 
 
 12 Cf. infra, § 85, as to indorsations, and the subject of negotiable notes, 
 § 83 ; Story, §§ 353, 353a. 
 
 ^ Cf. sv/pra, p. 250. The j udgment of the Supreme Court of Appeal at Liibeck 
 on 31st March, 1856, from the Frankfort Eomer Coll. vol. iii. p. 325, reported 
 by Seuffert, vol. ii. p. 161, seems to contradict this. It pronounces that the val- 
 idity of assignations of res Utigiosm is to be valid, not by the law of the place of 
 the contractj.but by that of the place where the process depends. The place of 
 the process and the domicile of the defender were, however, the same. See, 
 too, the judgment of the Supreme Court of Appeal at Munich, 7th January, 
 
§ 76.] 305 
 
 In the same way we can dispose of cases under tlie Lex 
 Anastasiana}* This law simply provides that the assignation 
 is invalid, and the debtor is free as regards any sum in excess 
 of the price paid for the assignation.^^ Therefore, the local 
 law to which the obligation itself is subject must rule in such 
 a case : if this law declares that the rights under an obliga- 
 tion may be made objects of exchange without any such 
 restriction as that the price given must be equal to the sum 
 contained in the obligation, no question as to the law of the 
 place where the assignation took place arises, because this 
 law, in subjecting free trade in obligations to restrictions, 
 cannot reasonably be held to apply to rights which in their 
 origin could be pointed out as open to an unrestricted 
 exchange. The opposite theory, by which it is maintained 
 that the local law of the assignation itself should apply, would 
 make the rights of the creditor entirely dependent on the 
 circumstance that the assignation took place at this or at that 
 place — a circumstance of no importance for the security of 
 the debtor,^® and one that could, besides, easily be planned 
 by a creditor. As a general rule, then, the lex domicilii of 
 the debtor will regulate this question," but not universally. 
 We might, no doubt, for the reason that the Lex Anastasiana 
 is in the interest of the debtor, hold the judex domicilii 
 bound to apply it in every case to any obligation undertaken 
 
 1845 (SeuflFert, i. p. 444) : " The act of third persons, the cedent and the 
 assignee, cannot alter the rights and duties of the debtor, which were origin- 
 ally dependent on Prussian law, Roman law, under the dominion whereof 
 the pursuer — ^who is assignee — lives, no doubt gives the debtor the exceptio 
 Legis AnastasiancE. But this has been expressly rejected by the law of 
 Prussia. Seufifert is right in holding (Comm. i. p. 256) that the position 
 of the debtor cannot be altered by the fact that the assignation took place 
 under other laws." 
 
 1* The Lex Anastasiana is abolished in Prussia by the A. L. R. i. 11, 
 §§ 390-91. 
 
 « Of. the provision of the Code Civil, art. 1699. 
 
 18 The Lex Anastasiana exists in the interest of the debtor, cf. L. 22, 23, 
 C. Mandati, iv. 35. 
 
 " To this effect a judgment of the Supreme Court of Berlin of 16th 
 November, 1858 (Striethorst, xxx. p. 353), which refused a debitor eessus 
 domiciled in Prussia the right to maintain a plea founded on the Lex 
 Anastasiana, although the assignation was executed in a foreign country 
 where this law was recognised, and the cedent was also domiciled there. 
 
 X 
 
306 [§ 76. 
 
 by one of his countrymen.^^ But this would be wrong, for 
 all provisions for the protection of the debtor are not to 
 be apphed to obHgations he may undertake in a foreign 
 country, or that are to be performed there by him, and the 
 bona fides of commerce plainly requires that the creditor 
 should not be hampered in his exercise of a right so highly 
 important as that of assignation, if he has trusted the debtor 
 in reliance upon this right. 
 
 Savigny^* maintains, in reference to the Lex Anastasiana, 
 that the law of the place of action should rule, and that this 
 statute rests upon the consideration that a traffic in the rights 
 under an obligation sold for a sum under their nominal 
 worth, might be oppressive and dangerous to the debtor, and 
 must therefore be scouted as immoral and mischievous to 
 the pubhc. One may concede these premises without being 
 led to Savigny's conclusion. For, although the law may 
 regard as immoral a traffic in obligations which in their 
 origin are subject to its dominion, it does not follow that 
 the same will be the case with obHgations which in their 
 origin are subject to the law of a foreign territory, which 
 gives the creditor an unrestricted right of sale.^" The con- 
 trary, indeed, must be affirmed, especially since some par- 
 ticular kinds of inland obligations, such as obligations on 
 bills, are free from the limitations of the Lex AnastasiaTia, 
 as being in their origin subjects of free trade. It needs no 
 further exposition to show what uncertainty for the debtor 
 might arise if the local law of a place of action, which could 
 not be determined beforehand, were to be applied. 
 
 1^ Cf. a judgment of the Supreme Court of Appeal at Liibeok, in 1831, in 
 the case Halle v. Tonnies, Thbl, Bntscheidungsgriinde, p. 139. "The Lex 
 Anastasiana passed for the security of the debtor, must be applied according 
 to the law of the debtor's domicile." 
 
 10 § 374 ; Guthrie, p. 253. 
 
 ^ To this effect the judgment of the Supreme Court of Appeal at Munich in 
 1845 (Seuffert, i. No. 422), cited by Savigny himself. (Guthrie, p. 253, note 3.) 
 
§ 77.] 307 
 
 (11.) Peefoemance and Dischaege op Obligation — 
 Acknowledgment — Plea non numeratce pecunice — 
 Beneficium competentice — Foeced Cueeency. 
 
 §77. 
 
 The performance and the discharge of oUigations must be 
 ruled by the law that regulates these obligations generally. 
 
 The way in which performance is to be made is specified 
 by the terms of the obligation, and the question whether an 
 obligation is discharged is coincident with the question 
 whether it still exists. 
 
 In the first place, just as with alterations upon existing 
 obligations, so their performance and discharge can only be 
 effected by a special legal transaction, and the law under 
 which this transaction falls must be allowed to have the same 
 influence upon the performance and discharge as we have 
 shown it has upon the alteration of existing obligations. 
 
 There are, however, in the second place, certain ways of 
 discharging obUgations, and occasional means of delaying 
 performance, which, as a rule, take place in accordance with 
 the lex doTnicilii of the debtor, without regard to the local 
 law which, for other purposes, regulates the obHgations ; 
 such are the modification which the creditor's right undergoes 
 in the case of the debtor's bankruptcy and the operation 
 of prescription. 
 
 The performance of an obligation, if it consists of an act 
 which cannot be held to be an independent legal transaction, 
 must be determined exclusively by the law that regulates the 
 obligation in other respects.^ If, on the other hand, it rests 
 upon a special transaction between the debtor and the creditor, 
 this special legal transaction for discharge of the obligation 
 must be ruled by the law to which that transaction itself is 
 subject, unless we have to infer a reference by the parties 
 themselves to the local law of the obligation originally made. 
 For instance, let us suppose that by the local law of the 
 original obligation payment by bUls or drafts is only a con- 
 
 1 Burge, iii. p. 874. Mass^, pp. 175-6, proposes that the law of the place 
 of payment should rule generally in reference to equivalents for payment — 
 e.g., as to the effect of consignation of the sum due. 
 
308 [§ 77. 
 
 ditional discliarge, and depends upon these bills and drafts 
 being duly honoured ; but, by the law of the place of payment, 
 this condition disappears. If the parties are the same who 
 made the contract at first, then we must infer a tacit refer- 
 ence to the local law to which the obhgation was subject 
 from the first. But if the parties, one of whom is tendering 
 payment to the other, are domiciled at the place of payment, 
 the local law recognised at that place must be applied, and 
 the payment must be taken to be unconditional ; all refer- 
 ence to the local law to which the obligation was originally 
 subject is in such a case excluded.^' ^ 
 
 The competency of an exceptio or querela non numeratw 
 pecuniae, as against an acknowledgment produced, is to be 
 determined by the same rules. The matter is not subject to 
 any doubt if it is permissible to insert in the document itself, 
 in any form, a renunciation of the plea or querela. But, even 
 although the opposite view were correct, that would not show 
 that the plea was applicable in those cases where it must 
 necessarily be assumed that either the transaction to which 
 the payment and acknowledgment have reference, or the 
 transaction of payment and acknowledgment itself, fell 
 under a local law distinct from that recognised at the place 
 of action ; for it is undoubtedly a general rule that the appli- 
 cation of many provisions of law, which cannot be excluded 
 by formal renunciation, may be excluded by the consideration 
 that the bona fides of trade requires the application of some 
 other different local law.* 
 
 It might also be said that this plea of no consideration 
 was merely a peculiar rule of evidence, and that rules of 
 evidence must be settled according to the lex fori? Without 
 disputing this, we may say in answer that, since in such cases 
 the plea rests upon the assumption that an acknowledgment 
 is as a rule given before performance of the contract, this 
 
 2 So it is, too, with the operation of novation, delegation, compromise, and 
 poMtum de non jpetendo, or any other contract that is simply intended to 
 serve as a discharge. Cf. Burge, cited above. 
 
 3 Cf. Story, § 351a. Amdts. Pandekts. § 281, note 8. 
 * See supra, § 66, note 21. 
 
 5 On this see the law of process. Cf. Savigny, § 374 ; Guthrie, p. 248 ; 
 Holzschuher, i. p. 75 ; Foelix, i. p. 254 ; Mass6, pp. 172-73. 
 
§ 77.] 309 
 
 assumption is inadmissible if the local law of the obligation, 
 or the law of the place of payment and discharge, as the 
 case may be, is such that the parties had or must have had 
 in view the immediate operation of the discharge." 
 
 It is the same with what is termed the beneficium compe- 
 tentice — i.e., the right of the debtor to have his liabiHty 
 limited in certain cases to an amount not exceeding what his 
 means permit him to pay, after deduction of what is necessary 
 for his own maintenance. This right only belongs to the debtor 
 as agaiast particular specified claims, and it rests, therefore, 
 upon the material law of the obligation in question.'' As to 
 the beneficium competentice or moratoriuin that arises in 
 bankruptcy, see infra § 78, note 7. 
 
 The competency of the plea of compensation must be 
 determined by the court in accordance with its own law, in 
 so far as it may fall to be repelled upon formal grounds of 
 procedure.^ But, on the other hand, a stipulation that this 
 plea shall not be taten against him must be undoubtedly 
 held to be a right of the creditor, springing from his contract, 
 and connected with definite claims under it.^ This material 
 right will not be lost to the creditor, by the fact that the 
 process happens to depend in a place different from that to 
 whose laws the contract is in other respects subject.^" 
 
 The question, whether a creditor must accept a statutory 
 forced currency of depreciated foreign paper, is answered in the 
 negative by Mass^ ; ^^ at least the creditor, he thinks, can only 
 be required to accept such a paper currency at its real 
 value. Although the creditor has no means of forcing his 
 
 « Of. Foelix, i. p. 448. 
 
 ' Savigny, § 374 ; Guthrie, p. 248 ; Unger, i. p. 186. 
 
 ' The rule, for instance, that both claims must be liquid is a rule of pro- 
 cedure. Cf. Code CivO, 1291 ; Abs. 1. 
 
 ' E.g., by Boman law (L. 14, § 2 ; C. de compens. iv. 31) compensation 
 cannot be pleaded against a claim upon depositvm. (Cf. too the rule of 
 Prussian law, A. L. E. i. 16, §§ 366, 367, whereby no compensation can be 
 pleaded against alimentary obligations). Whether a particular claim can be 
 pleaded in compensation depends upon the local law of this counter claim ; 
 it determines the extent of the operation of the counter claim. 
 
 1° Story, § 575, proposes the lex fori as the general rule. Cf. Burge, iii. 
 p. 874. 
 
 11 p. 170. 
 
310 [§ 77. 
 
 debtor to make any further payment in the country whose 
 law ordains that payment may be made in this paper currency, 
 he may in such a case sue his debtor in the courts of any 
 other country where that debtor possesses property, and 
 obtain and put in execution a decree for the full amount of 
 the debt. To this view I cannot, however, assent. The 
 creditor might, with as much justice, dispute the binding 
 force of any other law that in whole or in part destroyed his 
 right of action under the contract — e.g., the law of prescrip- 
 tion, if it did not exist in the legal system to which he was 
 personally subject. If the obligation in dispute is generally 
 subject to the law of the country in which there is such a 
 forced currency, the discharge of the obligation must be ruled 
 by the law applicable to this currency. But the fact that 
 payment happens accidentally to be made somewhere in that 
 country is not decisive of the point.^^ 
 
 This view is undoubtedly justified by practice. A forced 
 currency is only ordained by the government of a country in 
 the extremity of necessity, for the institution of such a 
 depreciated currency must have the worst effect in the future 
 upon the credit of the State and of its subjects. To apply 
 the former view would only ensure a very small measure of 
 assistance, because it is purely accidental whether the debtor 
 has property abroad or not, and since he could not in future 
 venture to send any articles of property, or even money, to 
 creditors, for fear of an attachment being laid upon it, the 
 result would be that commerce would be completely crippled, 
 and the public would suffer. The case would no doubt stand 
 differently if it was proposed to apply this forced currency 
 according to its nominal value to all claims which in truth 
 belonged to a foreign country, but which accidentally came to 
 be paid or to be sued upon in the country where this currency 
 was in force ; no such presumption, however, can be made 
 unless it be expressly so enacted. ^^ [Infra, p. 345, note 14.J 
 
 12 TflTo countrymen make a contract at their domicile, and for convenience 
 agree that payment shall be made in some country where a forced currency 
 is subsequently introduced. In this case, the creditor must accept the paper, 
 for the enactment extends to all payments made within the territory of the 
 State, but only at its real value. 
 
 1' Cf. Mass^ as quoted above. " II arrwe souvent que les lois d'un pays, 
 
§§77,78.] 311 
 
 A discharge of contract obligations directed exclusively 
 against foreigners, or confiscation in defiance of international 
 law, is not binding upon foreign states and their subjects.^* 
 
 The discharge of an obligation in consequence of a legal 
 judgment is to be determined upon principles which we shall 
 discuss in the law of process. ^^ 
 
 (12.) Extinction and Modification of Obligations 
 IN Case of Bankruptcy. 
 
 §78. 
 
 The influence which declared insolvency or the failure of a 
 debtor has upon his obligations may be of two kinds ; it 
 may in the first place affect the execution of the obligation, 
 or in the second, the obligation itself The former effect of 
 bankruptcy belongs to the subject of the recognition and 
 execution of foreign judgments : with the second we shall 
 deal here ; it consists in the delay of performance which some 
 systems of law require to be imposed under certain conditions, 
 and in the absolute or partial discharge of obligations which, 
 especially in mercantile bankruptcy, may be brought about 
 either by statute or by the will of a majority of the creditors.^ 
 
 The view which Story and most of the judgments of 
 English^ and American courts adopt, holds that an obliga- 
 
 dont la valeur monitaire est depriciie, Stablissent dans I'interet du commerce 
 des regies particulieres pour les payments d, faire aux Strangers." According 
 to the reasoning in the text it is obyious that such a provision as that of the 
 Code Civil, art. 1895 — viz., " L'obligation qui risulte d!un pret en argent n'est 
 toujours que de la somme numdriqve dnoncde au contract. S'il y a en 
 augmentation au diminution d'espkes avant I'dpoque du paiement le debiteur 
 doit rendre le somme numirique prith, et ne doit rend/re que cette somme dans 
 les espiees ayant cours au moment du paiemejit" is to be applied to foreign 
 creditors also, if the obligation falls under French law. 
 
 w Cf. Story, Ǥ 334, 337, 349. 
 
 15 See below, § 125. 
 
 1 According to the bankruptcy law of England, and of some of the United 
 States, a trader in the case of innocent failure, is, upon ceding his property 
 to creditors, freed from his trading obligations (Cf. Story, § 338). By 
 common Roman law it is well known that bankruptcy has not the result of 
 freeing the debtor (L. 1, C. vii. 71). 
 
 2 Cf. Burge, iii. pp. 925-26. 
 
312 [§ 78. 
 
 tion cannot be thus extinguislied in a foreign state, unless 
 that is the result according to the law of the place Av:here 
 the contract was made or is to be performed ; because 
 this mode of discharging an obligation results from the pre- 
 sumed intention of parties, and must therefore be treated as 
 part of the legal bearing of the contract. But the result of 
 this view would be, that a new statute, dealing with the 
 extinction of obligations on bankruptcy, would have no effect 
 upon contracts made before it was passed ; for as a rule jv/ra 
 qucBsita resulting from a contract are not affected by any new 
 enactment. But apart from this consideration, the point of 
 view from which this extinction of obligations is looked upon 
 as a matter of contract is totally inadmissible, because it 
 assumes that one party, although he undertakes to fulfil all 
 his obligations, intends to except the case of his insolvency. 
 To assume this, without a special bargain to that effect, is 
 contradictory of the generally recognised rules as to the 
 interpretation of contracts, whereby we are entitled to assume 
 that every man who engages to perform what is generally 
 within his power, means to fulfil his undertaking to the other 
 party. 
 
 It is just as impossible to peril the decision of the 
 question upon the circumstance whether the creditor is a 
 subject of the State whose law pronounces obligations to be 
 thus extinguished.^ This would plainly set native creditors 
 at a disadvantage with foreign creditors. But in any case, as 
 we have seen, the domicile of the creditor is not the general 
 rule in contract obligations. Foelix (ii. § 368, p. 109) denies all 
 validity in France to a discharge of obligations of this kind 
 in a foreign country, because it rests upon the decree of a 
 foreign judge, and such a decree cannot be put in execution 
 in France ; he will only allow an exception in the case of 
 some tacit assent on the part of the creditors to the proposed 
 modification of the obligation. 
 
 The following, however, seems to be the correct solution. 
 The object of the law in pronouncing that, by the bankruptcy 
 of the debtor, contracts which have not been satisfied, or not 
 completely satisfied, shall be discharged, or, in sanctioning 
 
 ^ See, on the other hand, Story, § 340. 
 
§ 78.] 313 
 
 an arrangement for abandonment or delay which may be carried 
 through by a majority of the creditors, is to insure, in the 
 first place, that the debtor shall be safe from fresh diUgence 
 at the instance of his creditors. But it can only attain this 
 object if each and every contract of the debtor, irrespective of 
 its place of origin or fulfilment, is subject to the provisions 
 for that end. How would it be possible to divide the estate 
 of the debtor fairly if foreign creditors, or all those who had 
 contracted with the debtor in another country, should take 
 all the advantages of a speedy settlement of the bankruptcy 
 along with the creditors in this country, and then forthwith 
 begin to use diligence anew against the debtor ? The judge 
 of the country in which the bankruptcy which sets the debtor 
 free takes place must undoubtedly be bound to apply his 
 own law to all debts contracted in or out of the country, and 
 with foreign or native creditors. 
 
 "Similarly, the judges of other countries are bound to 
 recognise that law. In the first place, creditors who have 
 appeared in the bankruptcy procedure must recognise it, 
 because they have subjected themselves to it. They desired 
 to share in the advantages of that procedure,* and they must 
 therefore put up with its disadvantages. But whether credi- 
 tors have or have not lodged claims in the bankruptcy pro- 
 ceedings, it is enough to decide the question that the judge 
 must apply to all creditors alike any rule of his own law 
 which provides that the rights of creditors shall be so dis- 
 charged, and must therefore give any foreign judge the same 
 power. 
 
 This theory,'^ too, meets the practical necessities of com- 
 merce. The creditor has no right, by virtue of his contract, 
 to payment in full in a case of bankruptcy ; nor has the 
 debtor any right to a partial hberation from his obligations. 
 The creditor can hardly have in view the bankruptcy law of 
 any particular country at the moment when the debt is 
 
 * Cf. Foelix, ad loc. cit. 
 
 * See on this point Edwards v. Ronald, i. Knapp's Privy Council Eeports, 
 Bnrge, iii. pp. 928, 929 ; and the judgment of the Court of Appeal for 
 Rhenish Hesse of 2nd November, 1830. (Archiv. Merkwiirdiger Rechstfalle 
 nnd Entscheidungen der Rhein Hessischen Gerichte, 3, p. 40.) 
 
314 [§ 78. 
 
 contracted, for it is uncertairi whether the debtor will have 
 property ia this or in that country at the time of his possible 
 bankruptcy. 
 
 There is, therefore, no disappointment of any just expecta- 
 tion on the part of the creditor, and the interests of the credi- 
 tors themselves will be best consulted by this theory. The 
 opposite theory, unless native creditors are to be put at a 
 distinct disadvantage, must end in. excluding foreign creditors 
 altogether, a conclusion rejected by the laws of almost every 
 State, and by the general principles of the equahty of foreigners 
 and natives in the eye of the law. Lastly, it wiU prevent the 
 debtor from acquiring property in other countries. Wherever 
 he goes he will be foUowed by the fear of an action upon an 
 old debt at the instance of a foreign creditor ; and this vm- 
 certainty, although it may be of advantage to some of the 
 earlier creditors, will be all the more mischievous to subse- 
 quent creditors of the common debtor.® 
 
 It is assumed by the laws that regulate the discharge^ of 
 obligations in bankruptcy that, if a real bankruptcy or a real 
 commercial failure (between which there is an important 
 distinction by the law of England) has taken place in the 
 territory of the State, or if the case is one of a limited bank- 
 ruptcy, that the obligation in question is included in that 
 bankruptcy. If, on the other hand, there has been no real 
 bankruptcy, but a mere execution of some decree against a 
 debtor in a country where bankruptcy really operates a dis- 
 charge of contract obhgations, that debtor cannot appeal in 
 another country to the system of law which gives the privilege 
 in dispute in the case of a true bankruptcy.^ 
 
 * The argument of Lord Kenyon does not agree with this; see Story, § 342: 
 " It is impossible to say that a contract made in one country is to be 
 governed by the laws of another. It might as well be contended that if the 
 State of Maryland had enacted that no debts due from its own subjects to the 
 subjects of England should be paid, the plaintiff would have been bound by 
 it " (Smith V. Buchanan, 1 East. 6, 11). The examples adduced would lead to 
 the imposition of disabilities upon foreigners at variance with international law. 
 
 ' What is true of the discharge of obligations must also be held to be true 
 in regard to delay granted as a result of bankruptcy, and the benefit of a 
 competency benevolently allowed to the bankrupt as such. 
 
 ' Perhaps it is a case of this kind that is at the bottom of many of the 
 decisions reported by Story, especially as most contracts are entered into at 
 
§ 78.] 315 
 
 Another difficulty arises from the fact that a real process 
 of bankruptcy may arise at different places at the same time 
 against an insolvent debtor. What will happen if different 
 laws are to be recognised as applicable to the discharge of 
 obligations, and accordingly to the right to claim for the 
 future upon the contract against the common debtor ? As far 
 as those claims are concerned which belong to a definite but 
 partial bankruptcy and sequestration — e.g., when one has a 
 trading establishment at one place and a domicile at another — 
 then, as concerns the claims against the trading establishment, 
 the law of the place where the partial bankruptcy took place 
 will, upon the principles already laid down, decide in the 
 first place. If by that law they cannot be pleaded a second 
 time, they are extinguished ; but if they can, then there is 
 still a recourse to the law of the true domicile, where all 
 claims which have not been satisfied in the separate and 
 partial sequestration may be urged.® 
 
 Where the exclusion of a claim discharges the obligation, 
 the same principles are to be apphed (cf. judgment of the 
 Supreme Court of Appeal at Kiel, 5th December, 1840. 
 Seuffert, 8, p. 163). But if its result is merely to shut the 
 claimant out from sharing in the assets, this exclusion cannot 
 be made good in a foreign country. The foreign trustee in 
 bankruptcy must, in the circumstances, answer in an action 
 for hypothecating any landed property of the debtor in this 
 country, without being able to plead the exclusion of the 
 personal claim which has taken place abroad (judgment of 
 the Supreme Court of Appeal at Cassel, 5th December, 1829 ; 
 Strippelmann, 4, p. 184). 
 
 the domicile of the debtor, or are to be performed there, and, as a rule, a 
 process of bankruptcy takes place there. Story, § 351a, recognises that if, 
 for instance, both parties, creditor as well as debtor, have their domicile at a 
 place where the latter fails, and is, in accordance with the law of the country, 
 freed by bankruptcy from his contract obligations, it is not possible to under- 
 stand why the operation of these laws should not be extended to the contracts 
 of the same parties in another country. 
 
 8 [The doctrine of this paragraph is by no means generally recognised, 
 except in so far as regards the rule that foreign creditors claiming in a 
 sequestration must recognise its effect on their obligations. For a compari- 
 son of the different views of foreign bankruptcies, taken by particular systems 
 of law, cf. infra, note on § 128.] 
 
316 [§ 79. 
 
 (13.) Extinction of Obligations by Limitation of Actions. 
 
 §79. 
 
 Legal authorities have discussed at great length and with 
 much divergence of opinion the question by what local 
 law the conditions which bring into play the limitation of 
 personal actions, with all its consequences, are to be deter- 
 mined. We may distinguish four different theories. 
 
 According to the first theory this limitation is merely a 
 form of process for dismissing claims, and is subject therefore 
 per the law recognised at the seat of the court.^ It is further 
 said that the statutes of limitation are designed to prevent 
 actions upon claims of long standing — ^which have probably 
 been discharged — in the interests of general peace and 
 security ; and therefore the law wUl not permit actions of 
 the kind to be brought before the courts by foreigners or by 
 natives, with reference either to contracts concluded at home, 
 or to those concluded or to be performed abroad.^ 
 
 But the right of action is something more than a mere 
 matter of procedure : such rights as are confined in their 
 operation to some particular suit, and the existence of which 
 depends upon the institution of that suit, are mere matters 
 of procedure. Just as it is from no mere rule of procedure 
 that a natural duty, which has no appropriate action, is 
 therefore an imperfect obligation from the first ; so neither 
 is it a matter of mere procedure that an obKgation, which at 
 first was perfectly valid, should by the lapse of time during 
 
 1 Huber, § V ; Hommel. Khaps. Quaes, vol. ii. obs. 409, No. 16 ; Seger, 
 pp. 25-6 ; Miihlenbruch, § 73 ; Weber, Natural Obligation, § 95 ; Burge, iii. 
 p. 878 (see below, note 1 1) ; Wheaton, § 94, p. 125 ; Story, § 576 ; Holzschijier, 
 i. p. 76 ; Beseler, i. p. 157 ; Mittermaier, § 31 ; Judgment of the Privy 
 Council at Berlin, 11th April, 1825 (Simon & Strampf, i. p. 325) ; of the 
 Supreme Court at Berlin, 22nd June, 1844 (Decis. 10, p. 102) ; of the 
 Supreme Court of Appeal at Darmstadt, 10th October, 1840 (Seuffert, xiL 
 p. 446). In these decided cases the place of action and the domicile of the 
 defender were the same. The judgments of the Supreme Court of Appeal 
 at Celle, 28th May, 1850, and 6th Pebruaiy, 1855 (Seuffert, viii. p. 12 and 
 p. 324) take as their principle the consideration that laws as to the limitation 
 of actions have a distinctly compulsory character. 
 
 ^ So, particularly, Oppenheim, p. 378. 
 
§ 79.] 317 
 
 which it might have been made effectual, fall back into the 
 position of a natural obligation. Besides, we must remember 
 that by many codes of law the operation of such an extinc- 
 tive limitation or prescription in the case of personal rights 
 of contract is not limited to the restriction of the privilege 
 of suing upon them. For instance, is it not something more 
 than the obhgation as a ground of action that is touched by 
 the provision of the Hanoverian law of 22nd September, 
 1850, denying the competency of pleading personal claims 
 by way of compensation,^ or by a law which declares that 
 after the lapse of the prescriptive period the obhgation is 
 discharged ?* In such cases even the adherents of this theory 
 hesitate to apply the lex fori.^ 
 
 The first reason assigned cannot therefore be held sufficient 
 to support the theory ; neither can the second. 
 
 The provision that action on certain claims must be 
 brought within a certain time does not mean that actions 
 upon such claims shall not be investigated by the court at all ; 
 on the contrary, it is in the option of the defender whether he 
 shall or shall not plead prescription,^ and in any case there 
 is nothing to prevent determinations being judicially given 
 as to the previous existence of prescribed obligations, which 
 come under consideration as incidental or prejudicial points. 
 
 ^ The like is the case according to the Code Civil, arg. Art. 1291 ; 
 Zacharia, iv. § 653 ; ii. § 262, note 6. 
 
 * Cf. Story, § 581 and § 267 ad fin. ; Prussian A. L. K., i. 6, § 54 : " If a 
 person omits to bring his action of damages for wrong suffered, except in the 
 case of a contract, within three years after the nature of the claim and the 
 person responsible to him are within his knowledge, he loses his right." 
 
 ^ Story, as cited above. 
 
 * Against determining it by the lex fori, see Seuffert, Comm. i. p. 262 ; 
 Eenaud D. Privatr. i. § 42 ad fin. ; Wachter, ii. pp. 410-11 ; Savigny, § 374 ; 
 Guthrie, pp. 249-50 ; Judgment of the Supreme Court at Berlin, 30th Oct. 
 1855 (Striethorst, xix. p. 70) ; of the Supreme Court at Stuttgart, 1st July, 
 1852 (Seuffert, viii. p. 2) ; of the Supreme Court of Appeal at Liibeck of 
 30th Sept. 1848 (Jurisprudence of the Supreme Court of Appeal on the 
 subject of bills, p. 161) ; Judgment of the Court of Appeal from the Rhine 
 at Berlin, 8th Oct. 1838 (Volkmar, p. 249), 6th March, 1843 (Seuffert, ii. 
 p. 163) ; Opinion of the Faculty of Law at Gottingen, 31st Jan. 1837, in 
 accord with an opinion of the Faculty of Law at Jena on the same subject 
 (Jurisprudence, pp. 224-227) ; Judgment of the Supreme Court of Appeal at 
 Celle (Magazine of Hanoverian Law, ii. p. 438). 
 
318 [§ 79. 
 
 •Upon the consideration that prescription, as we have 
 shown, belongs to material private law, rests the second 
 theory which proposes that the local law to which the 
 obhgation is subject generally should rule in questions as to 
 the prescription of actions.^ And indeed, according as the 
 place of execution or the place of performance of the 
 obhgation is held to regulate it, so too is the one place or 
 the other assumed as regulative on the question of pre- 
 scription.^ 
 
 It does not, however, by any means follow from the fact 
 that the prescription of actions belongs to material law, that 
 it is to be ruled by the law of the place of execution or of 
 performance, because the obhgation itself must be construed 
 by one or other of these laws. In particular, it cannot be con- 
 ceded that parties have, by virtue of their contract, a right 
 to a definite period of prescription, which is the reason 
 assigned generally for the application of the law of the place 
 
 ^ Cf. Judgment of the Supreme Court of Appeal at Munich, 11th June, 
 1853 (Seuffert, xii. p. 447) ; Judgment of the Senate of the Bhine in the 
 Supreme Court at Berlin, 12th Oct. 1858 (Striethorst, xxx. p. 300). 
 
 * See the former view in Hert. iv. 65 ; Cocoeji de fundata, vii. 12 ; Ricci, 
 p. 539 ; Reinhardt Erganz, i. 1, p. 32 ; Renaud, i. § 42 ad fin. ; Kori, iii. 
 p. 12 ; in the draft of commercial code for Wiirtemberg, Art. 1000, and in a 
 judgment of the Supreme Court of Austria, 9th June, 1858 (Goldschmidt, 
 Archiv. fiir Handelsr. ii. 1, p. 135) ; the latter view in Bartolus in L. 1, 
 0. de S. Trin. No. 19 ; Alderan Mascardus, Concl. 7, No. 75 (because at the 
 place of payment " contrada est mora ") ; Burgundus, iv. 28 (because pre- 
 scription is akin to payment) ; Mass6 ii. p. 108, who remarks, in agreement 
 with Troplong (Prescription No. 38) : "La prescription afin de se libdrer est en 
 qmlque sorte la peine de la nigligence du credncier. Or dans quel lieu le 
 crdaneier se rend il coupahle de cette faute ? C'est dvidemment dans le lieu 
 oil il doit recevoir son payment. Done il encourt la peine Stablie en ce lieu." 
 Savigny, § 374 ; Guthrie, p. 250 ; Seuffert, Comm. i. p. 262 ; Schaffner, 
 p. Ill ; Heffter, § 39, note 5, pronounce in favour of the law which regulates 
 the material stipulations of the contract, without saying whether they mean 
 the law of the place of execution or of the place of performance. So, too, the 
 judgment of the Supreme Court of Appeal at Celle cited in note 6, and at 
 Berlin 30th Oct. 1855 (Striethorst, xix. p. 70). See, too, Wachter, ii. pp. 
 411-12, who, at the same time considers whether and how far the law of the 
 place of action lays down absolute rules as to prescription apart from the 
 autonomy of parties, and thus in the end comes to the conclusion that, as a 
 rule, the law of the place of action rules. Foelix, i. pp. 238-41, declares him- 
 self as doubtful. 
 
§ 79.] 319 
 
 of execution or of performance. Although, as we have seen 
 (§ 69), the effects of a contract are not to be held as the tacit 
 agreement of the parties, stiU we cannot hold any right to 
 be in accordance with the spirit of the contract which, if 
 tacitly hnpHed in it, would be at variance with the express 
 win of the parties. But the express will of the parties 
 appUes only to the due performance of the contract, whereas, 
 if we were to assume that a right to any particular term of 
 prescription was implied in the contract, we should have to 
 suppose that at the very outset of their contract parties were 
 contemplating a breach of it, and there could not be a more 
 flagrant contradiction of the bona fides to be observed in all 
 contract relations than this. This view would make the law 
 of prescription a premium upon a breach of contract instead 
 of a penalty upon a neghgent creditor, and a protection 
 against claims of long standing and of little substance.^ 
 
 We cannot, obviously, assume that the intention of parties 
 was expressly directed to the period of prescription recog- 
 nised at the place of execution or of performance, because the 
 contract happens to have been executed or to have its place of 
 performance abroad i^" and there can be no question of a period 
 of prescription in accordance with contract, when we come to 
 deal with obligations which are not grounded on contract. 
 
 Finally, the following considerations will serve to exclude 
 the application of the lex loci contractus : — If the period of 
 prescription were in reality a jus qucesitum of the parties 
 bound up with the origin of the obligation, a new statute, 
 introducing a period of prescription, could not be applied to 
 claims which arose before the passing of the Act. But this 
 result is certainly incorrect ; for if that were so, then the 
 very oldest and most dubious claims would be withdrawn 
 from its operation. Parties, too, would be able, by setthng 
 upon any foreign place of performance they pleased, or by 
 making a journey abroad, or by dating a contract from some 
 foreign town, to exclude the period of prescription settled by 
 the law of their own country, — a result at variance with the 
 
 " Lord Brougham, in Don v. Lippmann, 5 01. and Fin. p. 1 ; Story, § 579, 
 note 1, p. 722. 
 
 1" Gand specially puts his argument upon the intention of parties, Nos. 
 739, 740. 
 
320 [§ 79. 
 
 prevailing view of the common law of Eome, and the express 
 enactments of particular systems. ^^ If, then, as we must 
 assume, in accordance with the law of all civilised peoples, 
 the law of prescription is an institution intended to give 
 security to general intercourse, how can we say that it is the 
 intention of the law to withdraw the property of our own 
 citizens, and their relations to that property, from the pro- 
 tection of this principle, because a contract is concluded or is 
 to be performed abroad ?^^ 
 
 The reasons last adduced meet the peculiar view of Pothier,^* 
 who proposes that the law of the creditor's domicile should 
 rule. The only principle on which this view can be supported 
 is one which we have already, in dealing with the law of things, 
 shown to be incorrect — viz., that a man cannot lose any right 
 except in accordance with the law of his domicile." 
 
 The last theory proposes that the domicile of the debtor 
 should rule, and this is, as a matter of fact, justified by the 
 object which lies at the bottom of all prescription of per- 
 sonal actions. The debtor is by this means to be protected 
 against doubtful claims, which probably are unfounded or 
 have been discharged f^ and by this means the general 
 security of law will be advanced. But if this rule is to attain 
 its object, it must extend to all the obhgations of our subjects, 
 as, conversely, it is not to be applied to the obhgations of 
 foreigners who remain in our State temporarily only, and do 
 not execute or propose to perform in this country most of the 
 obhgations which they undertake. If the law of prescription 
 is not extended to aU obligations undertaken by our subjects, 
 the result will be that if, for example, there was no such 
 thing as Hmitation or prescription of actions in the law of 
 the place where the obhgation arose, or was to be performed, 
 the creditor would have it in his power to disturb the legal 
 security of our subjects for ever by these claims of long 
 standing ; and, conversely, if foreigners happened to be sued 
 
 " Of., e.g., the Hanoverian law of 22nd September, 1850, § 12. 
 
 12 Thol, § 85, note 9. 
 
 13 De la Prescription, No. 251. (Cf. Foelix, i. p, 239, note 1.) 
 
 14 Cf. § 64. 
 
 15 See Savigny, t. § 237 ; Blackstone, iii. p. 307-8 : " Tlie me of these 
 statutes of limitation is to preserve the peace of the kingdom.'' 
 
§ 79. J 321 • 
 
 in this country, tlie application of our laws would imperil 
 the legal security — the whole object of this rule of law — 
 not merely of the creditor, but of the debtor also in the 
 highest degree. ^^ 
 
 It might be said that this consideration is authoritative 
 for the judex domicilii of the debtor, but not for any other 
 judge ; but if our law, in obedience to the object of prescrip- 
 tion, applies our period of prescription to all obligations 
 undertaken by our subjects, how can it be supposed that 
 it will refuse to concede the same right to any other State ? 
 We must recollect, too, that, as a rule, action wiU be raised at 
 the debtor's domicile, and that, therefore, in the limitation of 
 actions there is an indirect reference to the law which prevails 
 at the domicile of the defender.^' If, as we have shown 
 above, the limitation of actions cannot be held to be a right 
 of the parties, arising out of the terms of their contract, we shall 
 not disappoint any well-founded expectation of the creditor 
 by shutting out of view the law of the place of execution or of 
 performance, since it is always uncertain whether the debtor 
 may be forthcoming at the place of execution or of perform- 
 ance, or will be in possession of property there ; and 
 whether, therefore, a decree in any action could be put into 
 execution without the assistance of the judex domicilii. 
 
 But the object of the law of prescription will require an 
 
 " Merlin, E^p. Prescription, i. § 3, No. 7 (Foelix, i. p. 239) ; Pardessus, No. 
 1495 ; P. Voet, 10, § 2 ; J. Voet, Comm. in Dig., 44, 3, § 12 ; BouUenois, 
 i. p. 365, pronounce for the lex domicilii of the debtor. But see Boullenois, 
 ii. p. 488 ; Pohl's Law of Bills, p. 655 ; Thol, § 85, note 9. We may also 
 include English and American authors. Although they take the lex fori as 
 their rule, yet their view comes to coincide with that taken in the text, 
 since by English and American common law personal actions have to be brought 
 at the debtor's domicile. Cf. Burge, iii. p. 880. [Cf. infra, p. 326.] 
 
 ^^ See supra, note 1. The judgments which I have examined, in which 
 the law of the place of action, of execution, or of performance has been held 
 to rule, almost all relate to cases in which the domicile of the defender was 
 identical with the place of action, and with the place of execution or of per- 
 formance respectively. Cf. the judgment of the Supreme Court at Berlin of 
 16th November, 1858 (Striethorst, 30, p. 361). The ground taken in the 
 text was expressly assigned as justifying the judgments of the Supreme 
 Court at Berlin, 14th February, 1855 (Striethorst, 12, pp. 138-39, and 19th 
 July, 1854 ; Deois., vol. xxviii. p. 70). Cf., too, the judgment of the Oour 
 Boyale de Paris of 29th March, 1836 (Sirey, xxxvi. 2, p. 457). 
 
 Y 
 
822 [§ 79. 
 
 exception to be made to the general rule in tlie following case : 
 . — If one carries on a permanent trade abroad — e.g., possesses 
 a trading establishment, or a manufactory, or a farm there, or 
 is at some foreign educational seat^^ — and contracts debts there 
 in consequence of this special legal position, both parties wiU, 
 in such a case, undoubtedly expect that it wiU be possible to 
 raise an action on the spot, if there should be occasion to do so, 
 and not at the domicile of the debtor.^^ To determine questions 
 of prescription by the law of the proper domicile, so long as 
 this state of matters exists, would disturb the security of the 
 law. Besides, it cannot be said that the law of prescription 
 in force at the domicile should apply to the prescription of 
 claims which would not, as a rule, be sued upon at that 
 domicile. If that permanent relation comes to an end — 
 if, for instance, the trader or manufacturer gives up his 
 foreign estabhshment, or the student leaves the university — 
 the same rules come into play as in the case of an alteration 
 of the domicile of the debtor. 
 
 It is urged against our theory, that if the debtor's domi- 
 cile is to rule, it will be in his power, by a change of domicile, 
 to withdraw at pleasure the creditor's right from him,^" — e.g., 
 if there is a prescription of ten years recognised at the 
 debtor's first domicile, and one of five at his subsequent one, 
 the debtor by acquiring this new domicile after the lapse of 
 five years, will at once extinguish the creditor's right. But 
 this is not by any means the result of our theory if correctly 
 liandled. The right of action wiU not be subject to the law 
 of prescription of the new domicile till the moment when the 
 debtor acquires that domicUe. Up to that moment the con- 
 ditions of prescription are to be determined by the law of 
 the former domicile — e.g., if by that law haK of the period 
 of prescription has run, so, by the law of the new domicile, 
 the same proportion wiU be held to have run. The creditor 
 would, therefore, in the case put, have still a period of two 
 
 15 -B.I/., a student contracts alimentary debts at the university town where 
 he studies. 
 
 1" In many cases Eoman law would find that the domicile was on the spot. 
 Cf. the provisions of German treaties as to jurisdiction given by Krug, p. 28, 
 §§ 10, 11 of the First Draft of a universal code for Germany. {Gi.infra, p. 326.] 
 
 '^ Savigny, § 3'74 ; Guthrie, p. 250, note v. 
 
§ 79, Note H.] 323 
 
 and a lialf years within which he could bring his action at 
 the new domicile. This is the same principle of calculation 
 as the Koman law applied to the ten and twenty year periods 
 of acquiring rights inter absentes and inter prcBsentes?^ (Cf. 
 Puchta. Pandekts. § 15 6, Nov. 119, c. 8.) From this, too, it 
 follows that a right of action, once extinguished, can never 
 be revived by a change of domicHe.^^ 
 
 There is nothing inconsistent with our doctrines in the 
 various provisions for the interruption of prescription, and the 
 privileges accorded to particular persons.^* 
 
 The question, whether a period of prescription once begun 
 has been interrupted, is identical with the question, whether 
 the period antecedent to the interruption is to be counted, 
 and the question whether a particular person has |a privilege 
 with reference to prescription, is part of the question whether 
 the claim in question will demand an exceptionally long 
 period for the creation of a prescription.^ 
 
 Note H, on % 79. 
 
 [The theory advanced by the author has not been con- 
 fessedly adopted in any of the continental systems, nor in 
 England, America, or Scotland ; although, as the author 
 remarks, those countries which have adopted the lex fori 
 as the determining consideration, have practically adopted 
 
 21 Many modern statutes reckon the beginning of the prescription against 
 certain claims as from the last day of December (e.g., Hanoverian law of 
 22nd Sept. 1850, § 5) of the year in which the obligation originated, without 
 regard to the real day on which it actually did originate. In the spirit of 
 these laws it must be assumed, for the purposes of calculating the period of 
 prescription, that the debtor changed his domicile on the last day of Decem- 
 ber in the year in question. Weber (Natiirl. Verbindlichkeit, § 95), who seems 
 to make the law of the place of action, but really makes the law of the 
 domicile of the debtor, his rule, thinks that prescription must begin to run 
 anew when the debtor changes his domicile. See against that, Savigny, § 
 374 ; Guthrie, p. 249. 
 
 ^ Cf. the judgment of the Supreme Court at Berlin of 19th July, 1854 
 (Decisions, vol. 28, p. 70). [This is not so by the law of England, cf. infra 
 p. 326 ; but is the law of America, Wharton, § 538.] 
 
 23 Judgment of Supreme Court at Berlin, 15th January, 1845. Cf. Koch 
 on § 33 of the Prussian A.L.R.I. 1 (p. 45). 
 
 2* On the privileges of legal persons, and persons under curatory, see § 
 44, note 7. 
 
324 {Note H. 
 
 the same rule of interpretation, since the action for imple- 
 ment wUl almost always be brought at the place of the 
 debtor's domicile ; and in defence of this rule arguments 
 have been used which are more proper to justify the rule 
 laid down in the text. 
 
 The main conflict has been between the laAv of the forum 
 and the law of the place to which the contract concerned pro- 
 perly belongs. The latter — the lex loci contractus — has been 
 sanctioned by some French writers, such as FceHx and Deman- 
 geat. The former says (i. p. 241, § 100) — "This opinion " (that 
 the law of the place where the action had its origin — i.e., where 
 the contract was made — should rule) " is perhaps the best 
 established in theory, and has been adopted by the courts of 
 Douai and Paris ;" and the commentator, Demangeat, at the 
 same place, after enumerating the various possible rules, 
 selects this as the prevailing rule, and fortifies his selection 
 by the citation of a series of French decisions. To these 
 cases may be added a decision of the court at Leipsic on 5 th 
 March, 1877, in the case of Hervey v. Engelbert, and a decision 
 of the Tribunal of Commerce of Moscow on l7th March, 
 1877, in the case of Blomberg u Wahlberg. In the latter case 
 the drawer of a bill payable to order, the bill being drawn in 
 Poland and accepted there, sued the acceptor, a domiciled 
 Russian, in the courts of Russia. The period of prescription 
 on such an obhgation is in Russia ten years ^ — ia Poland thirty. 
 The Russian pleaded his prescription, but the court held the 
 period of prescription to be determined by the lex loci con- 
 tractus — viz., Polish law. This, too, was the doctrine sanc- 
 tioned in Scotland by an unanimous judgment of the Court 
 of Session in the case of Don v. Lippmann, 20th Jan. 1836, 
 14, § 241. We shall see that that judgment was reversed 
 by the House of Lords upon appeal, on the authority of the 
 Institutional Writers as well as on general principles ; but the 
 decision lays down the rule so clearly that it is worth while, 
 since the opinions of jurists on the subject are so much 
 divided, to quote a few sentences from the opinion of Lord 
 Corehouse, well known to Scottish lawyers as a most 
 learned and accomplished judge. He says — " To decide 
 the question of prescription, as applicable to the bills," 
 for the contents of which the action was raised, " it is neces- 
 
If ote 11.] 325 
 
 sary to enquire whether the debt sued for is a French or a 
 Scotch debt, and that depends in this case on the point 
 whether Scotland or France was the place where the bills 
 were payable. If they constituted a Scotch debt, it is plain 
 they are subject, not to the French quinquennial, but to the 
 Scotch sexennial prescription. ... On the other hand, if 
 France was the place of payment, and if the biUs in conse- 
 quence constituted a French debt, the case must be viewed 
 in a different light. Our decisions have not been uniform on 
 this point, but it seems the better opinion, that if a debt be 
 payable in a foreign country, the law of that country must 
 apply, in so far as its extinction is concerned, although the 
 debtor resides and must be sued in Scotland." This, we 
 repeat, is not now law in Scotland, although it may be taken 
 as a statement by an eminent jurist of the principle on which 
 he held that such questions should be determined. That the 
 law of the place of the obligation to some extent influences 
 the application of prescription is admitted by the very 
 authorities who have estabhshed the lex fori as the rule for 
 England and America. The American courts have held that 
 a defender who is free by the lex loci contractus, and has 
 resided in the territory of that law during the whole of the 
 period necessary for his release, cannot be afterwards sued in 
 the court of a foreign country to which he has proceeded, if 
 the prescriptive period there is longer (Walworth v. Kouth, 1 4, 
 A. 205 ; Story, § 582 jWharton, § 538), and Lord Brougham, 
 in giving judgment in the case of Don v. Lippmann (26th 
 May, 1837, 2 Shaw & Maclean, p. 730), adopting this view, 
 said — " There is no occasion, with a view to the decision in 
 this case, to question the doctrine laid down by Dr. Story in 
 his able work on the conflict of laws, and approved of by the 
 Court of Common Pleas in Teriber v. Steiner, that if the lex 
 loci contractus makes the obligation wholly void after a cer- 
 tain time, and if the parties have resided within the jurisdic- 
 tion during the whole of that period, it may be taken as the 
 guide of the court where the action is brought." 
 
 The law of the place of the contract is also, by the law of 
 countries which as a rule adopt the lex fori, allowed to affect 
 the period of prescription upon a debt in this way, that if a 
 debtor, during the subsistence of his debt, removes to another 
 
326 [J^ote H. 
 
 country where a shorter prescription than that of his own 
 country avails to extinguish the debt, although he cannot be 
 sued in the courts of that foreign country, he will, on returning 
 to the locus contractus, be hable to action during the period of 
 prescription there recognised. In the case of Richardson v. 
 Countess of Hadington, 16th June, 1824, 2 Shaw's App. 406, 
 the House of Lords held that a person who had contracted 
 debts in this country and had afterwards gone to Russia, 
 where a decennial prescription prevails, and remained there 
 for upwards of ten years, was yet liable to be sued on return- 
 ing to Scotland throughout the years of the long prescription. 
 In that case the lex fori and the lex loci contractus were the 
 same, but it is upon the applicability of the latter to the pre- 
 scription that the judgment to a considerable extent proceeded. 
 But although there is thus a considerable body of authority in 
 favour of the lex loci contractus as the rule, later decisions on 
 the continent have tended to establish, and in England have 
 beyond question established, both for that country and Scot- 
 land, the lex fori as the rule, although Bar, in a pamphlet 
 on International Law published in 1882, says: "The only 
 serious doubt is whether we should prefer the law of the con- 
 tract or the law of the debtor's domicile, and practice as weU 
 as literary authority in (jermany, recognises more and more 
 clearly that the choice lies between these." In England the 
 courts have made the lex fori so exclusively the rule, that 
 they have thrown aside the qualification admitted by Lord 
 Brougham ut supra, and have established both for themselves 
 and Scotland, that so long as a claim is admissible by the lex 
 fori, it matters not that the law of the contract has extin- 
 guished it (Westlake, p. 2 5 4, and cases there cited). The law of 
 America follows the same rule as it is laid down by Story(Whar- 
 ton, § 535); the Supreme Courts of Berlin and Warsaw have 
 taken the same course ; and so, too, have the later I*rench deci- 
 sions. The authorities on the law of England are collected by 
 Westlake, p. 253. The leading authority on Scotch law is the 
 case of Don v. Lippmann, cited supra. Lord Brougham says, 
 at page 724: "Limitation of action belongs to the head 
 of remedy, ad decisionem litis, as some jurists term it, or 
 ad tempus et modum actionis, as others express them- 
 selves," and is, therefore, subject to the law of the court to 
 
mte H, § 80.] 327 
 
 which, appeal is made. This decision has settled the law in 
 Scotland, and this law has, like that of England, taken a 
 further step and, as is laid down by Mr. Dickson (On Evidence, 
 § 530) — "the Scotch Court is not bound or entitled to give 
 effect to a prescription of either of those natures " — i.e., hniit- 
 ing the mode of proof or the right of action — " prevailiug in 
 the lex loci contractus." It is worth while to note that Lord 
 Brougham rejects the authority of the lex loci contractus on 
 grounds similar to those urged by the author. Limitation or 
 prescription of action, he argues, is no part of the contract, 
 and cannot have been in the contemplation of parties : 
 " nothing can be more violent than the supposition that the 
 breach of the contract is in the contemplation of parties, and, 
 indeed, nothing more contrary to good faith. It is supposing 
 that when men bind themselves to do a certain thing they 
 are contemplating not doing it, and considering how the law 
 will help them in the non-performance of a duty." 
 
 Acting on the priuciples of this decision the Scotch courts 
 have held that where a limitation, such as the limitation of 
 the liability of a cautioner in a bond under the Act 1695, c. 
 5, for seven years, is truly a condition of the contract, then 
 the lex loci contractus wUl apply ; it is part of the contract, 
 and not a regulation of the method of enforcing a remedy 
 (Alexander v. Badenach, December, 1843, 6 D. p, 326). 
 
 With reference to the latter part of the paragraph in the 
 text, as to the period from which prescription runs in the 
 event of a change of domicile, a case decided by the Supreme 
 Court of Posen (Wiernzowski v. Cegeilka, 18th March,! 87 5), 
 may be cited : there a defender, who had, since incurring an 
 obligation, become a Prussian, was sued by another Prussian 
 upon that obligation ; he pleaded the Prussian prescription of 
 two years, and that as the rule of the lex fori was sustained ; 
 but it was only allowed to run from the time at which he 
 first became amenable by domicile to the jurisdiction of the 
 Prussian court] 
 
 (14.) Transmission to Heies. 
 §80. 
 The following principles appear to determine the question 
 whether a contract obligation descends to heirs. 
 
328 [§ 80. 
 
 The local law, in conformity with which the heir enters 
 upon the succession, will in the first instance determine what 
 obligations ^ must be taken over by him as a condition 
 of taking up the succession. But before the obhgations 
 in question can bind the heir, this effect must be also 
 attributed to them by the law to which the obligation is in 
 itself subject. 
 
 Thus, the heir of a person domiciled in a country where 
 the common Koman law is in force,^ would not be bound to 
 carry on a partnership in which his predecessor had been 
 engaged in France, although the contract of partnership by 
 the force of special statutory provision does in French law 
 pass to heirs. ^ 
 
 Conversely, by the common law of England, the heir in 
 heritage is not, as a rule, bound by the simple contracts of 
 his predecessor, but only by an "instrument under seal," 
 which specially provides that heirs shall be liable. By the 
 common law of Rome, an obligation on a contract transmits to 
 heirs. A simple obligation which must be ruled by the 
 English law as the law of its place of execution, cannot 
 therefore be made good against the heirs of the debtor, 
 although they are domiciled in a country where the Roman 
 law is recognised.* 
 
 That the obligation should on its other side pass to the 
 heirs of the creditor, it is necessary that the law to which it 
 is in its origin subject, and the law which regulates the suc- 
 cession, should both provide for this. 
 
 ^ The heir never undertakes more than what is fixed by the law under 
 which he takes the succession. Cf. § 113, as to the law which regulates the 
 entry upon an- inheritance. 
 
 2 Cf. L. 40, D. pro socio, 17, 2 ; Arndts. Pandekts, § 319, 2. 
 
 3 Code Civil. Art., 1868. 
 
 * Story, § 268, and the decisions there cited. 
 
§8].J 329 
 
 (15.) Interpretation of Contracts^Reduction of Con- 
 tracts, PARTICULARLY IcBsio enormis — Discharge by 
 Reason of Fault in the Subject — Locus poenitentice 
 — Right to Resile after Earnest or Arles has 
 BEEN Given — Redemption — Restitution — Effect 
 OF Conditions upon Contracts — Discussion of 
 Particular Contracts. 
 
 §81. 
 
 The interpretation of contracts is by some authors taken 
 in so wide a sense that they include in it the import of obh- 
 gations, in so far as that may be varied at the pleasure of 
 individuals. But it will be more correct ^ to limit the dis- 
 cussion of the interpretation of such legal transactions, as 
 Savigny does,^ to the resolution of doubts which arise upon 
 their verbal construction. There can be no definite rule 
 given for the interpretation of contracts in this sense which 
 will cover all cases that may arise in International Law any 
 more than the interpretation of contracts within one territory 
 can be brought under one rule ; the two questions are pre- 
 cisely the same. In the one case, as in the other, all 
 turns upon ascertaining from the words and acts of the 
 parties, and from circumstances, what their true intention 
 was. 
 
 The question, however, what local law rules the transaction 
 is indirectly of importance to this extent — that if bona fides 
 requires the application of the law of the place where the 
 contract was made, the language of the contract must also 
 be read according to that law. This connection is not re- 
 cognised by Savigny, and he therefore arrives at the contra- 
 dictory result that, whereas the application of the local law 
 rests upon the presumed will of parties, and for that purpose 
 there must be an universal appHcation of the law recognised 
 at the place of performance, yet, in interpreting contracts, in 
 so far as the construction of the language and terms employed 
 
 1 Cf. supra, § 69. 
 
 2 Savigny, § 374 ; Guthrie, p. 244. 
 
330 [§ 81. 
 
 is concerned — wMch surely depends as much upon the pre- 
 sumed intention of parties — quite a different law is to pre- 
 vail.^ 
 
 The language or dialect used by the parties seems of 
 special importance, and so, too, the place in which they enter 
 upon their contract, and, in the case of contracts between 
 persons who do not meet, the place from which the relative 
 papers are dated.* 
 
 The rules of interpretation laid down by Eoman law — by 
 which in cases of doubt the interpretation is to be against 
 the debtor, the seller, and the lessor ^ — do not operate against 
 our theory. They dealt with the interpretation of contracts 
 in which there could only be one language, and do not touch 
 
 2 Most writers recognise how closely the interpretation of a contract 
 is connected with the local law to which it belongs, cf. Story, § 272, 280. 
 But those who say there can never be a discrepancy certainly go too far. 
 See, on the other hand, BouUenois, ii. pp. 494-8. It may, undoubtedly, here 
 be of importance in this connection that a person has resided in a foreign country 
 for a considerable time. Under certain circumstances, in such a case, a party 
 would use the language of that foreign country, and not that of his own country. 
 
 [A charter-party granted by a German to a Spaniard, for delivery of a cargo 
 at Hamburg, does not require to be read according to the law of Englimd 
 because it is in English. That is a circumstance to be taken into account 
 along with others, but is not in itself conclusive as to the law that is to rule 
 (Court of Appeal at Hamburg, 6th September, 1866).] 
 
 * Judgment of the Supreme Court of Appeal at Liibeck, reported in Gold- 
 schmidt, Zeitschrift fiir des gesammte Handelsrecht, ii. pp. 140-2. A firm in 
 Bremen had contracted with an English ship-owner at Southfleld, in the Eng- 
 lish language, and in the ordinary English form. The court interpreted the 
 penalty clause added to the contract in conformity with English custom, in the 
 way in which it would be read in England,andnotas itwould be readin Germany; 
 because, not only was the contract made in England, but the parties, one of 
 whom was an Englishman, had used a form which was customary in England. 
 (By English law such a clause gives no substantial right, for the party entitled 
 to plead it can, in spite of its existence, recover no more than the amount of 
 damage he can instruct.) Wachter (vol. xix. p. 117) gives this case : An 
 insurance company at Leipsic had in its printed conditions excepted the case 
 of destruction by rioting. In the case of a conflagration which took place in 
 a foreign country, the question arose whether the legal notion of rioting was 
 applicable to the circumstances of the case, since the laws of different countries 
 are not at one in their definition of the term ? Wachter's ruling is that the 
 question must be referred to the terms of the law of Saxony. Cf. Savigny, 
 § 374 ; Guthrie, p. 244, note D. 
 
 * L. 26, D. de reb. dub. 34, 35 ; L. 38, § 18 ; L. 99, pr. de V. 0. 45, 1. 
 
§ 81.] 331 
 
 the question as to which language shall decide where several 
 may possibly be applied.^ 
 
 The reduction of contracts is subject to the same law as 
 that by which their vahdity is to be determined. Keasons 
 of reduction are truly nothing else than imperfect invalidity.'^ 
 The reduction or discharge of a sale by reason of damage 
 to more than the extent of one-half/ or from deficiencies in 
 the subject sold, the right to resile,^ the right to do so on 
 renouncing earnest or arles given, the right of redemption, and 
 of restitution against a bargain, are aU applications of this 
 rule.io 
 
 The operation of a condition upon a contract must un- 
 doubtedly be determined not by the law of the place of per- 
 formance, but by the law which regulates the transaction for 
 other piu-poses — i.e., the law that prevails at the place where 
 the contract originated.^^ The performance or the failure 
 of the condition makes the contract independent of the 
 condition, and then it stands as if it were unconditional, or 
 had never been struck between the parties. 
 
 We now propose to touch upon some contracts of special 
 importance. We have already discussed the contract of 
 sale from more than one point of view. Of particular 
 importance is the question as to the passing of the property and 
 the risk in sale. The former part of the question we have 
 already dealt with (cf. § 61). It is enough to say that, in 
 consequence of that doctrine, the intention of the parties to 
 
 » Savigny, § 374 ; Guthrie, p. 247. 
 
 ' Rules as to the reduction of contracts belong to material law. Judgment 
 of the Supreme Court at Berlin, February 11, 1858 (Striethorst, Neue. Folge. 
 2nd year, vol. i. p. 51) ; cf. Mass^, p. 158. 
 
 8 Foelix, i. p. 254, § 109 ; Hert, vi. 4 ; Massi, p. 220. (In the sale of 
 immoveables, the lex rei sites as a rule will prevail ; see Mass6, p. 223.) 
 
 9 BonUenois, ii. p. 454 ; Foelix, i. p. 254, 
 
 10 See, generally, J. Voet, in Dig. 4, 1, § 29 ; Story, § 331 ; Wachter, ii. 
 p. 404. Wachter, no doubt, only applies this in so far as he has to deal with 
 rights which parties may renounce. This restriction cannot be approved in 
 the light of the general principles here assumed (cf. supra, § 66). See, too, 
 Savigny, § 374 ; Guthrie, p. 249 ; Kenaud, D. Privatr. i. § 42, note 26 ; and 
 the judgment of the Supreme Court of Appeal at Liibeck, cf. 30th January, 
 1850, reported by Eomer, ii. p. 228. As to restitution, see supra, § 56. 
 
 " Hert, iv. 54 ; Burge, iii. p. 754 ; Mass6, No. 103. 
 
332 [§ 81. 
 
 transfer or not to transfer tlie property is to be determined 
 by the law whicb generally rules the obligation ; but tbe fur- 
 therquestions — viz., whether this intention is sufficient, whether 
 any particular forms are necessary for the passing of the 
 property, and what these forms are — are to be determined by 
 the lex rei sitce. But in the case of a contract of sale con- 
 cluded by means of letters, the law of the domicile of each 
 of the parties wiU rule as regards his obUgation ; and if their 
 provisions are irreconcileable on the question as to whether 
 the buyer or the seller is to bear the loss of the subject if it 
 should perish, then the law which favours the defender is to 
 prevail.^^ For instance, by Eoman law the risk passes to 
 the buyer when the contract is complete : by Prussian law, 
 A. L. R. I. 2, § 100, the sale is held to be broken off if the 
 subject of it is by any accident entirely destroyed. ^^ Now, 
 in the case of a contract by letters, the buyer who is domi- 
 ciled ia Berlin cannot be required to pay the price at the 
 instance of the seller who is domiciled in Hanover ; but con- 
 versely, the seller, if domiciled in BerMn, cannot demand the 
 price from the buyer domiciled in Hanover, while it is always 
 incompetent to claim repetition of a price which has once 
 been paid. 
 
 Claims of warrandice are to be settled by the rules which 
 determine in other respects the local law of the contract of 
 sale;" and by the same rules, too, is to be settled the obhga- 
 tion of one or the other party to make good to the other the 
 costs of the deeds and the stamp duties.''^ 
 
 Contracts of hiring and lease of immoveables are, almost 
 without exception, to be determined by the law of the place 
 where the subject of the contract is. There is stiU less 
 reason to suppose that there should be exceptions to this rule 
 in such cases rather than in the case of sale, since the contract 
 of lease is bound up with the permanent use, and, as a rule, with 
 the permanent presence of the lessee at the place where the sub- 
 ject of his lease lies. The lex rei sitae determines, then, the con- 
 
 ^^ See above the general principles given in § 66. 
 
 13 For an exception, however, see i. 2, § 340. 
 
 " BouUenois, ii. p. 460 ; Molinseus, ad L. i. 0. de S. Trin. ; Foelix, I p. 230. 
 
 " Foelix, i. p. 305. 
 
§ 81.] 333 
 
 ditions of tacit relocation, of abatements of rent, and ques- 
 tions as to rent and warning.^®' ^^ 
 
 All that need be said as to the contract of partnership has 
 been already said in treating of agency.^^ 
 
 The law of mandate is of special importance for the com- 
 pletion of contracts by letter. This, too, we have already 
 dealt with.^** 
 
 As regards loan, reference may be made to what has 
 already been said upon interest, the plea non numeratce 
 pecunicB, and the Exceptio Sci MacedonianiP We must dis- 
 pose of all provisions of particular systems of law, by virtue 
 of which particular persons are declared incompetent to bind 
 themselves by acknowledgment of loan, in the same way as 
 we dealt with the Senolus ConsultuTn MacedonianuTnP- We 
 need only note that by the very nature of the contract of 
 loan, the lender is entitled to recover the full amount of the 
 capital he has lent. The result of this is that if it is arranged 
 that payment shall be made at some other place, or if pay- 
 ment actually takes place there, the debtor may no doubt 
 pay in the currency recognised there, but the amount of the 
 debt will be determined by the currency of the place where 
 the loan was made:^^ further, the debtor has to bear the cost 
 of transmission, and if he pays in bills he must make good 
 to the creditor the difference. in the rate of exchange between 
 his own domicile and that of the creditor. ^^ 
 
 We have already ^ attempted to show ^^ that the limitations 
 
 " Demangeat, in his note (c) to Foelix, i. § 109, p. 250 ; Story, §§ 270 and 364. 
 
 '^ The claim of the freighter of a ship against the owner, if the goods have 
 been damaged in transit, must, therefore, be determined, not according to the 
 hiw of the place where the damage was done, but by the law to which the 
 contract of affreightment is generally subject. So, too, a judgment of the 
 Court of Appeal from the Rhine at Berlin, of 10th March, 1845 (Seuffert, iv. 
 p. 5). 
 
 18 Cf. supra, § 72. 
 
 w See supra, §§37 and 73. 
 
 2" See supra, §§ 71, 77, 55. 
 
 21 E.g., subaltern ofScers and students. 
 
 22 Mass6, p. 167, No. 124. 
 
 2' Cf. Grant v. Healey, cited by Story, § 284a. 
 •-* See supra, § 70, note 4. 
 
 25 The same is true, for instance, of the provinion of the Prussian A. L. R. I. 
 14, §§ 219-20, according to which the capacity to incur debt belongs to the 
 
334 [§§ 81, 82. 
 
 which some systems of law lay down for the guarantees of 
 women are not to be viewed as hmitations of the capacity to 
 act. But in questions arising out of the Senatus Gonsultum 
 Velleianum the lex domicilii must as a rule be applied, 
 since the application of that rule, which is the general canon 
 in the law of contracts, is subject to less objection under 
 this head, as the obligation of guarantee has as a rule to be 
 performed at the domicile of the surety, and the parties are 
 therefore directed to the lex domicilii of the surety, while the 
 bona fides of trade seldom requires that the lex loci contractus 
 should be kept in view. If, for instance, the traffic at fairs 
 and markets makes it absolutely necessary to apply the law 
 of the place to the contracts usually concluded there,, the like 
 need not necessarily be true of a contract of guarantee con- 
 nected with some contract of the former kind: it must also be 
 shown to be usual to undertake such contracts of guarantee at 
 that place.^® The import of the principal contract will regulate 
 the extent of the obligations undertaken by the surety, and 
 therefore to a certain extent the law appUcable to them,^' 
 On the other hand, the conditions under which the surety is 
 bound or is free, although the principal obligation continues, 
 do not depend upon the law that rules it. In this way, too, 
 must the question, whether the surety can plead the 
 eocceptiones excussionis and divisionis, and whether he has the 
 beneficiun cedendarum, cbctionum, be decided.^ 
 
 (a.) Donation. 
 §82.. 
 
 Donation, strictly speaking, only belongs in part to this 
 division of the subject : it is only the promise of donation 
 and the obligations which he who receives the donation incurs 
 towards the donor by acceptance, that we can deal with : the 
 
 question of the capacity to become surety ; and subaltern officers, for instance, 
 cannot undertake such an obligation without the leave of their colonel. 
 
 2' Kritz, p. 117, who no doubt justifies it by the consideration that surety- 
 ship never gives rise to more than an actio nascitura. 
 
 27 JJouhier, chap. 21, No. 197. 
 
 28 We do not mean to say that circumstances may not force us to determine 
 such an obligation by the law that rules the principal contract — e.g., if one 
 becomes surety for an officer of the State, and the obligation can only be 
 undertaken in conformity with the law of the government which he serves 
 
§ 82.] 335 
 
 donation on the other hand, in so far as its object is to confer 
 or to transmit real rights, must be assigned to the law of 
 things. But for the sake of connected treatment, and because 
 whUe we were dealing formerly with the law of things, we 
 could not assume the principles of the law of contract, we 
 shall take the whole subject up now. 
 
 1st. The transference or the creation of real rights is 
 subject to the lex rei sitce. If this law requires some particular 
 form for the constitution of a real right to the thing in ques- 
 tion by way of donation, that form must be observed, although 
 the contract to give the right should have been made in some 
 other country, where no such form was required.-^ The con- 
 verse, however — viz., that, if by the lex rei sitce there is no 
 particular form required to pass the property of the thing 
 which is the subject of the donation, while there is a form re- 
 quired by the lex domicilii of the donor, the property may pass 
 although the form is not observed, — is not necessarily true, 
 each case being dependent on its own circumstances ; for the 
 intention of the donor to transfer the property must be plain. ^ 
 
 2nd. The undertaking to make a donation — an under- 
 taking which does not belong to the ordinary obhgatiojQs of 
 commerce — ^from its very nature does not as a rule require 
 the apphcation of the lex loci actus to protect the good faith 
 of the contract, and therefore we can in this case adhere to 
 the general rule that the lex domicilii of the party bound 
 shall rule, and although there is no reason to exclude the 
 rule "locus regit actum" from . regulating the form of the 
 undertaking to make a donation, the intention of the giver to 
 bind himself validly in conformity with the lex loci actus 
 must be apparent from the circumstances.' 
 
 3rd. Grounds for recall of a donation are to be determined 
 in the same way by the lex domicilii of the person under 
 obhgation — that is to say, of the donor — before he has made 
 
 (Story, § 290). The surety in this case knows, or ought to know, that he 
 can only become surety in the way prescribed by these laws. 
 ' Cf. supra, § 61. 
 
 2 Cf. supra, § 60. 
 
 3 BouUenois, 1. pp. 519-23, demands that in every case a donation shall be 
 judicially intimated, if that is necessary, by the law of the domicile of the 
 donor, without regard to the local law of the place of the donation. 
 
336 [§ 82, NoU I. 
 
 the gift, thereafter of the donee ;* since in the former case 
 the right of recall frees the donor — in the latter case, puts an 
 obligation upon the donee. 
 
 4th. The restrictions imposed upon the donor by the exist- 
 ence of heirs, or of persons having claim to legitim out of his 
 estate, or claims of a similar kind, are all consequences of the 
 rights which these claimants may have upon the estate of 
 the deceased,^ and are conditional upon the state of his pro- 
 perty at the time of his death. They are, therefore, subject 
 to the law under which the succession falls (the lex domicilii 
 of the deceased, or the lex rei sitce). If the person whose 
 estate is thus subjected to a claim changes his domicile, then, 
 if the question should turn at all upon the lex domicilii, the 
 donation can only be challenged by these claimants in so far .as 
 that is competent by the law of his last domicile, and of his 
 earlier domicile at the date of the donation ; for on the one 
 hand assets of the estate, once vahdiy given away, do not 
 afterwards form part of the estate ; and on the other the 
 heirs can ask no more than what the law that regulates 
 the succession, and pronounces them to be heirs, bestows.* 
 
 We shall return, in dealing with the law of the famUy, to the 
 restrictions which many systems of legislation place upon the 
 power of donation between spouses (cf. § 97). 
 
 Note I, on % 82. 
 
 [It has been determined in France that a person who is re- 
 strained in his disposing powers by way of donation during his 
 lifetime, by the law of his domicile or nationality, is so restrained 
 wherever he may be at the time of executing a donation, or 
 wherever the estate which forms the subject of the donation 
 Hes, and wherever the donation is to have its effect. Count 
 Garcia de la Palmira, a Spaniard, gave his daughter, the 
 Countess Antonelli, who became by marriage an Itahan, a 
 
 * If the thing given is immoveable, then the lex rei sites will, as a rule, 
 determine the obligations of the donor and of the donee, according to the 
 general principles of the law of contract. Cf. supra, § 66, note 26. 
 
 * On the principles of Eoman law, the querela inofficiosce dotis and inoffi- 
 cioscB donationis are anomalous, since no heir has by Roman law any claim 
 upon the estate of his predecessor while he is alive. It is otherwise by Ger- 
 man law. See, too, Code Civil, art. 913 ; Zacharia CivUr. iv. § 586. 
 
 « Cf. Boullenois, i, p. 276. 
 
Note I, § 83.] 337 
 
 share of his real estate on the occasion of her marriage. At 
 the date of the marriage the Count was resident in Italy, and 
 the marriage-contract, in which the gift was contained, was 
 executed there. The estate was situated in France. By 
 Spanish law the donation was illegal ; and on the death 
 of the Count subsequently in France, the French courts, 
 applying the law of Spain, declared the donation bad, and 
 gave effect to the contentions of the Count's heirs, who 
 had challenged its vahdity. The restriction of the Spanish 
 law was held to be a personal disqualification, which fol- 
 lowed a Spaniard everywhere (Cour de Paris, 12th March,- 
 1881).] 
 
 (/3.) Notes Payable to Bearer. 
 §83. 
 
 These notes are, on the one hand, subject to the principles 
 that regulate the acquisition and the loss of real rights in 
 moveables, and on the other, to the principles of the law of 
 contracts. We have already (cf § 64, note 22) said all that 
 need be said about them under the former head ; and on the 
 latter we have to remark that, although the competency of 
 vindicating such notes may be dependent upon the lex domi- 
 cilii of the holder, or in some cases upon the law of the place 
 where they were acquired, yet the debtor will undoubtedly be 
 discharged, if he pays to the person who is entitled to 
 receive payment according to the law that regulates his own 
 (i.e., the debtor's) liability — i.e., as a general rule, the law of 
 his own domicile.^ 
 
 The same is to be said of the case where by statutory 
 enactment the holder of a note for value, which is payable to 
 the bearer, has the power of taking the same out of the 
 circle, either by noting it for himself, or by the process of 
 having it noted by some Government official.^ Such a pro- 
 cess only binds the debtor in so far as his lex domicilii pro- 
 vides that it shall do so. On the other hand, in so far as 
 
 1 This follows from the principles of assignation. Cf. supra, § 76. 
 
 2 Cf., e.g., Hessian ordinance of 18th December, 1823, given by Schumm : 
 Discharge of documents of debt that have been lost, Heidelberg, 1820, p. 230. 
 
 Z 
 
338 [§ 83. 
 
 the claim for recovery of the note is to be deterroined by the 
 law of the land where this process was carried out, it will rule 
 the relations of the pursuer and defender in any action for 
 recovery of it.* 
 
 The debtor is always free from any claim at the instance 
 of the holder, if he is free according to the law which origin- 
 ally regulates the performance of the contract. But he can- 
 not be discharged by any other law. From this it foUows 
 that a decree of discharge or cancellation of such a note, if it 
 has been lost, can only be obtained under the conditions and 
 before the court* prescribed by the law of the debtor's domicile. 
 
 It is, however, quite a different question whether or not 
 the person who has lost such a negotiable note, by neglect of 
 some obligation incumbent on him by the law of his domi- 
 cile — e.g., by neglect of some necessary advertisement — ^is 
 bound to give up the document, which he has received from 
 the court in place of that which was held to be discharged 
 or cancelled to the holder of that document itseK.^ 
 
 ^ In the case of joint-stock companies, the domicUe of the company takes 
 the place of the debtor's domicile, even as regards the original shareholders. 
 Of. Burge, iii. p. 751-52 ; Story, § 320a. 
 
 "* The judex domicilii of the debtor is the competent judge. Of. infra, 
 § 86, p. 352. Sometimes, however, the court of the domicile of the last holder, 
 or the court in whose territory the note was lost, is declared to be competent 
 in the case of inland notes payable to bearer (cf. the Hessian ordinance, 
 cited above). The Hannoverian ordinance of 28th January, 1826, § 4, and the 
 statutes of the Hannoverian Landescreditanstalt, § 49 ad fin. promulgated by 
 ordinance of 18th June, 1842, proceed on the principle that the judex domi- 
 cilii of the debtor is competent. The Hessian ordinance, too, tacitly assumes 
 that a decree of discharge of inland notes payable to bearer is all that the 
 courts of any country can pronounce ; and the like, too, is enacted by the 
 ordinance of the free town of Frankfurt, 8th July, 1817, Art. 4 (Schumm, 
 p. 234). See, too, Vogt in the Neue Archiv. des Handelsrechts, by Vogt 
 and Heinichen, i. p. 31 ; and the judgment of the Supreme Court of Appeal 
 at Liibeck, reported there of date 20th October, 1856. 
 
 * The judgment cited in the former note says : " Suppose that a foreign 
 law did not prescribe any rules for the security of trade in reference to such 
 processes of discharge, of the nature of those rules which in Hamburg are 
 considered upon exchange as necessary for avoiding risk and loss in the case 
 of negotiable notes, a Hamburg merchant could not hold himself excused 
 from observing the rules laid down in Hamburg, because of the provisions of 
 foreign law, without making himself ultimately answerable to the person who 
 had lost the note. He must observe the rules which the members of one 
 
§ 84.] 339 
 
 (y.) Law of Bills. 
 §84. 
 
 The object of all traffic in bills is tbat tbe creditor shall 
 receive a certain sum of money at a certain time, and gener- 
 ally at a certain place. But since the creditor may find it 
 more profitable to receive this sum, or more correctly speak- 
 ing its equivalent, at some other place or some other time, 
 he has the privilege given him of transferring his right in 
 the bill absolutely to some other party, and getting his 
 equivalent out of the consideration paid him. To attain 
 these objects, which are not identical with those of a true 
 paper currency, although, they resemble them, the obhga- 
 tion in a bill consists of an accurately framed undertaking 
 to pay a particular sum ; and this undertaking, in contrast to 
 the other legal relations which arise between the holder of a 
 bill and the debtor, is visibly expressed in a written declara- 
 tion of intention, and is governed by this expression of iaten- 
 tion alone ; but at the same time, just because the obhgation 
 of the debtor is so exactly defined, there is laid upon the 
 holder, in order to uphold the system, and to avoid loss, a 
 series of obligations as to the diligence^ which is competent 
 to him. And lastly, to ensure the object of prompt pay- 
 ment, there is given to the holder an exceptionally summary 
 process against the debtor, and in many systems of law a 
 special kind of execution against his person.^ 
 
 From these principles we may deduce, with the help of the 
 general principles which regulate the law of contract, what 
 
 trading body are required to observe in their relations to each other, quite 
 irrespectively of the foreign enactment, which may, however, for other pur- 
 poses, regulate his position." 
 
 1 In a strict sense one cannot conceive an obligation in which the creditor 
 is not under some such obligation on pain of losing his rights. He must 
 always accept performance or demand it. 
 
 ^ See Jolly's treatise for different theories as to the nature and definition of 
 bills of exchange ; the more modern literature on the subject is in Pozl's 
 Critical Quarterly Magazine of Law and Jurisprudence, 1860, p. 537. The 
 definition given in the text may suffice for the object which we have in 
 view. 
 
340 [§ 84, 85. 
 
 territorial law is to determine tlie particular obligations, rights, 
 and transactions that are to be found in the law of bills.^ 
 
 § 85. 
 
 1st. We have already (§ 56) noticed that the capacity to 
 incur obligations by bUls is not to be determined by the lex 
 domicilii, except in so far as it is a result of a general capa- 
 city to act, such as majority confers. We need, therefore, 
 only apply the general principles of the law of contracts, 
 which, as we saw, undoubtedly refer us as a rule to the law of 
 the domicile of the debtor in the obUgation. We must not 
 forget, however, that by reason of the form of the obligation 
 in a biU, as every one is entitled to rely upon the faith of the 
 litera scripta, the debtor cannot refuse to allow the place 
 from which his written undertaking is dated to be held to be 
 his domicile.^ The only exception to this rule would be, if 
 
 ^ The conflict of laws upon bills is dealt with at length by Brackenhofft in 
 his Archiv. fiir Deutsches Weohselre^cht, ii. pp. 129-162, 278-301. Of. how- 
 BTer, Hoffmann's Ausfiihrl. Erlauterung der Allgem. Deutschen Wechselordn. 
 p. 597-611. 
 
 , 1 See the AUgemeine Deutsche Wechselordnung, Art. 4, No. 8, — " The 
 plica to which the individual or firm drawn upon bears to belong is con- 
 sidered as the place of payment of the bill, in so far as no special place of 
 payment is fixed, and also as the domicile of the person drawn upon." Art. 
 97, — "The place of issue is held to be the place of payment, and also to be 
 the domicile of the drawer when there is no proper drawee and there is no 
 special place of payment fixed." There is the less risk of the principle 
 stated in the text being used as a means of evading the laws that restrict 
 capacity to enter on bill transactions, since the designation of the party, in 
 order to be complete, requires that his true domicile should be given. It is, 
 however, an essential principle for the security of trade, since, if it were not 
 so, the holder of the bUl, on the one hand, in order to secure his right of 
 recourse, would in many cases have to make enquiries as to the true domicile 
 of the party liable to relieve him, which the shortness of the time available 
 to him would render impossible (see below, note 18) ; and, on the other hand, 
 would not be able to test the validity of the undertaking expressed in the 
 bill. By far the greater part of the obligations in a bill are undertaken at 
 the debtor's domicile, and this the indorsee may assume to be the case. But 
 Brackenhofft goes too far when he maintains (loc. cit. p. 139) that the place 
 which the bill states to be the place where its obligations are to be under- 
 taken is really to be so considered in all circumstances. The parties cannot 
 by the terms of their contract withdraw themselves from the operation of the 
 local law. "We have an agreement of parties that the place said to be the 
 
§.85J 341 
 
 the person who took the bill knew when he entered into the 
 contract that the party undertaking the obligation had his 
 domicile elsewhere, or if that were particularly noted on the 
 face of the biU ; but in the former case only if the bill had 
 not in the meantime passed into the possession of some person 
 who knew nothing of that special circumstance, and from 
 whom it had again passed into the hands of its present 
 holder.^' ^ This circumstance, and the fact that by far the 
 greater part of the obligations under bUls are undertaken at 
 
 place of issue shall be held to be so : the law of this place will be applied to 
 regulate everything which parties have it in their power, by a choice of 
 locality, to settle for themselves ; and, besides that, any third party who may 
 have an interest in the bill is entitled, if he is in bona fide, to rely upon the 
 litera scripta of the bUl. It would not, however, be correct to say — with a 
 judgment of the Supreme Court at Berlin (Decisions, 2, p. 137; cf. Borchardt, 
 p. 42), — which was no doubt pronounced before the Allgem. Deutsche 
 Weohselordnung — that all that is required in a bill is that it should bear in 
 full, on its face, all the essentials of such a document, and that therefore the 
 truth of the statement as to the place of issue made on the bill cannot 
 be sent to proof. Enquiry might, under certain circumstances, take 
 place, provided of course that the proof admissible in an action as to a bill 
 would show the falsity of the statement. See, too, a judgment of the Appeal 
 Court at Naumburg, 21st January, 1851 ; Archiv. fiir D. Wechsel Eecht, ii. 
 p. 431. The following cases are in point : — A merchant sends to his corre- 
 spondent in London blank bill forms, merely signed by him, and dated from 
 Ireland, that the correspondent may fill in the name of the drawee, the sum, 
 the place of payment, and the date of issue : these bills will be held to have 
 been drawn in Ireland (Story, § 289). Again, a bill was drawn in Man- 
 chester upon a firm established in Boston, and was accepted by a member of 
 the firm then in Manchester in name of his firm. The court held, without 
 any question as to the capacity of the person to draw bills qr accept them being 
 raised, that the bill must be treated as if accepted in Boston, and that the 
 diligence done upon the bill in accordance with the law of that place was 
 in order (Story, § 319). [Snaith v. Mingay, 1 Maule v. Selwyn, 87 ; and 
 Grimshaw v. Bender, 6 Mass. 157.] 
 
 2 It is sufficient if the holder v/as in good faith. A subsequent holder who 
 was not in good faith could never appeal to the rights of a prior holder as 
 his cedent. If the transference of a bill is shown to have been a simulate 
 transaction, it has of course no efiect. 
 
 ' The validity of the litera scripta will give even bona fide holders of a 
 bill no good right to it in questions where there is incapacity to undertake 
 any such obligation in consequence of a general incapacity to act, such as 
 minority creates. There is no legally capable will to give validity to the 
 litera soripta. Nor does the general security of trade in bills require any 
 other rule. (See above, §§ 52, 55.) 
 
342 [§ 85. 
 
 tlie domicile of the debtor, explain the view which French 
 and English authorities adopt, that the validity of an obliga- 
 tion upon a biU must be determined by the law of the place 
 where that obligation was undertaken.* 
 
 2nd. There is noquestion that, as faras the form of the bill and 
 its transmissions are concerned, the rule " locus regit actum," 
 must be recognised. The obligation contained in the bill is 
 validly undertaken if it is in conformity with the law recog- 
 nised at the place where the declaration of liability is made.® 
 But the undertakings of the drawee, the acceptor, and the 
 indorsers^ are, in questions as to their respective validity, 
 
 * See Story, § 319 ; Pardessus, No. 1483-5 ; see, too, J. Voet in Dig. 22, 2, 
 No. 10. [See infra, p. 354.] 
 
 ^ Story, § 318 ; Foelix,i.p. 177,§80; Mass6,p. 143. The followingare important 
 divergences ia the rules as to bills : — According to the Code de Commerce, Art. 
 110, 137-8, the original bill and all indorsements must bear to be for value : 
 that is not necessary by the Deutsche Wechselordnung (cf. Hoffmann, p. 179). 
 By English law bills may be made payable to bearer, but not so by German 
 law (Stephen, ii. p. 114 ; Hoflfmann, p. 190, on Art. 4, 3). The 85th Article 
 of the Deutsche Wechselordnung enacts, — " The essentials of a bill drawn 
 abroad, and of every transmission of it executed abroad, are to be ruled by 
 the law of the place where the bill was drawn or transferred." See, too, a 
 judgment of the Supreme Court at Berlin of 13th June, 1857 (Striethorst, 24, 
 p. 370, and Borohardt, p. 240). In determining the validity of a bill drawn 
 in Russia upon a domiciled Prussian, but wanting in the statutory stamp, the 
 Prussian judge is bound by no fixed rules, if the courts of Russia have no 
 fixed rules to determine their decision. (On the necessity of a stamp, see 
 generally supra, § 38, and a judgment of the Supreme Court of Appeal from 
 the Rhine at Berlin on 29th April, 1844, reported by Seuffert, 2, p. 164.) By 
 a judgment of the Supreme Court at Berlin of 10th July, 1860 (Seuffert, 14, 
 p. 279), the diligence peculiar to bills may foUow upon promissory notes 
 issued in America, which do not contain the words " Bill of Exchange," 
 wherever the Deutsche Wechselordnung is in force. [Any equivalent expres- 
 sion is enough (Reichsgericht at Colmar, 14th June, 1881).] 
 
 " Judgment of the Supreme Court of Appeal at Liibeck of 1st March, 
 1844 (Jurisprudenz des 0. A. G. zu Liibeck in Wechselsaohen, 16-17). 
 Hommel Rhaps. Qusest. vol. ii. obs. 409, No. 5. A judgment of the Court 
 of Cassation at Paris of the 25th September, 1829, in accordance with a 
 judgment of the court at Rouen on the same point (Sirey, 30, 1, p. 150-2), 
 recognises that as regards the validity of a blank indorsement the rule " locus 
 regit actum" is to be applied. The principles laid down as to assignation are 
 applicable to the obligation of the debtor in the bill to pay upon an indorse- 
 ment that has been executed abroad, and, in a corresponding way, to his 
 discharge by payment upon such an indorsement. The result is that the debtor 
 must pay if the indorsement is valid by the law of the place to which it, as a 
 
§ 85.] 343 
 
 quite independent of each other, so that, for instance, if the 
 drawer has by some informality faUed to bind himself accord- 
 ing to the law of the place where the bill was drawn, the 
 indorsement, if the bill be valid by the law of the place 
 where this undertaking was entered upon, may bind the 
 indorser.'' This follows from the consideration that the debtor 
 in a bill binds himself to pay either absolutely or upon the 
 event that the prior obligant fails to pay ; we cannot on 
 the one hand take into account the fact that the debtor may 
 have a right of recourse or of indemnity, nor can we take into 
 account the reason why the prior obligant does not pay, and 
 that reason may be that the principal debtor in the bill has 
 not vahdly bound himself. It follows, however, from the 
 meaning of the rule " locus regit actuvi," which was explained 
 by us above, and is expressly recognised in the D. W. O.,* 
 
 separate legal transaction, is subject ; but he is also discharged if he pays in 
 bona fide upon an indorsement which would transmit to the indorsee the 
 right to the bill according to the law that regulates his (the debtor's) obliga- 
 tions under the bill. Of. too, Story, §§ 316a 353c ; Foelix, i. p. 177 ; SchafF- 
 ner, pp. 121-2, as to the validity of the indorsement in conformity with the 
 lex loci actus. By the D. W. 0. bills at usance are not recognised. The 
 papers of the conference upon the statute say on this point (p. 146), — 
 "This question also arose, What view is to be taken of bills at usance, 
 drawn abroad ? After a long discussion we agreed that this point had been 
 already decided in the first paragraph of the 76tli section (now the 85th)." 
 In my opinion, not only ; would a bill drawn within the territory subject 
 to this ordinance upon usance by a person domiciled here fail to bind 
 acceptors and indorsers here, but so also would such a bill drawn abroad 
 upon the territory of this ordinance, because, except in the cases of bills 
 given at fairs and markets, there is no rate of usance known at the place of 
 payment. But, again, indorsers domiciled in Germany who indorse a bill 
 drawn abroad upon some place abroad may be liable. 
 
 7 D. W. Q. Art. 85, par. 2,—" If, however, the foreign bill, or its trans- 
 missions made abroad, satisfy the requirements of our law, no plea can be 
 taken against indorsements subsequently made upon the bill in this country 
 on the ground that the original bill, or previous indorsements, were defective 
 by foreign law." Judgment of the Supreme Court at Berlin, 17th June, 1858 
 (Striethorst, 28, p. 361 ; Borchardt, p. 241)—" A foreign bill, in conformity 
 with foreign laws, is to be treated like a good inland bill ; and all further 
 operations upon it, such as indorsation done in this country, are to be ruled 
 by the law of this country." 
 
 8 Art. 85, par. 3, " In the same way, indorsations of bills, by which one 
 German is bound to another abroad, have the force of bills themselves, if 
 they fulfil the requirements of the German Code." See, too, Massi, p. 143. 
 
344 't§ 85. 
 
 that a bill may be transmitted according to the law of the 
 country to wbicb both parties belong, if one subject of that 
 country undertakes to another, in a yalid form, and with the 
 present intention of doing so, the obligations associated with 
 a bill, — and the written terms of the bill wiU generally deter- 
 mine these beyond a doubt. And, in my opinion, even 
 although the person in whose favour the obligation so under- 
 taken abroad were no subject of this State, the vahdity of 
 the obhgation would have to be determined by the law of the 
 country to which the party binding himself belonged, if it 
 could be shown that he intended to undertake the proper 
 obligations' of a bill.^ 
 
 3rd. The law of the place where the bill is drawn or 
 indorsed, and, as in the former cases, the law of the place 
 where either of these operations is dated, will determine the 
 substantial effect of the operation (cf. the principles stated 
 supra)}" Every transmission is independent of every other, 
 even in questions as to the substantial effect thereof ; for he 
 who becomes liable to the obligations of the biU is uncondi- 
 tionally responsible (under the modifications which the law 
 that regulates his liability may enact), for the payment of the 
 bill, irrespective of whether this results from legal considera- 
 tions, because other parties to the biU have not bound 
 themselves validly, or upon actual facts, such as that these 
 persons cannot pay.-^^ For instance, by one system of law, the 
 acceptance has no effect if the drawer was bankrupt at the 
 time when the acceptance was given ; but the indorsers in 
 such a case, who have incurred their obligations under the 
 
 " This might be said, too, upon the special provisions of the D. W. 0. The 
 provisions of that statute are in no way complete as regards international 
 law. 
 
 1° Cf. Hoffmann, p. 604. Draft of a commercial code for Wiirtemberg. 
 Art. 1003. 
 
 " The historical origin of the right of recourse against the indorser bears 
 this out : " The cedent, who at first, when a bill was handed on, accompanied 
 it with an ordinary order, subsequently was in the habit of adding to that an 
 order guaranteed by his own obligation — i.e., a new bill with all its forms, 
 probably upon an eik to the original bUl, and then again subsequently trans- 
 ferred merely the order contained in the first bill, with the guarantee of his 
 own obligation, which made it unnecessary to repeat aU the forms of a bill, 
 since a part of these could be held as tacitly repeated." Hoffmann, p. 52. 
 
§ 85.] 345 
 
 rules of a different system, are nevertheless bound. ^^ And 
 in the same way the competency of objections is to be deter- 
 mined by the lex loci contractus,^^ unless these are dependent 
 on rules of process, such, for instance, as that any such 
 objection must be instantly capable of verification. 
 
 4iA,. The amount due under the bill is determined by the 
 currency of the place of payment," and similarly the periods 
 allowed for payment and acceptance ^^ (cf D. "W. 0. Art. 34).^*' 
 The priucipal or leading obligation in a bill transaction, and the 
 only one which will be put in force if things take their 
 regular course, is the obligation of the person drawn upon ; 
 the drawer in issuing the bill refers to the obligation under- 
 taken or to be undertaken by the drawee, and that is fixed 
 by the law of the place where acceptance or payment takes 
 place, or is intended to take place, whereas the obligations of. 
 the drawer and the indorser consist merely in taking steps 
 to insure that the drawee on his part shall undertake and 
 perform, his part of the obligation.^' 
 
 12 Story, § 322, ad fin. 333. Beseler, iii. p. 368. 
 
 " Cf. supra, § 68, and Story, § 316 and § 353. Foelix, i. p. 177. Schaffner, 
 p. 121-22. 
 
 1* This follows from what we have said already, § 66, note 25. Cf. too, 
 Mass4, p. 168 ; Story as cited. 
 
 [It was decided by the Trib. comm. de Marseilles, 7th Not. 1871, that 
 the holder of a bill payable in Prance is bound to accept payment in notes of 
 the Bank of France, having at the time a forced currency, and that although 
 the bill bears that payment is to be in gold, unless there is a separate and 
 special agreement to that effect.] 
 
 ^ Pardessus, No. 1495. Mass^, p. 196. Judgment of the Supreme Court 
 at Berlin, 10th April, 1848 (Decisions, New Series, 7, p. 342). Mass6 reports 
 a judgment of the Court of Cassation at Paris of 18th Brumaire xi. in which 
 . the date at which a bill at so many months after date drawn in Amsterdam 
 upon Paris should fall due was calculated according to the Bepublican 
 calendar then in force in France, and not by the Gregorian, which was in 
 force in Amsterdam. 
 
 '* " If a bill is drawn in a country where the old style is still in use, payable 
 so many days after date, and if it is not noted that the bill is dated in the 
 new style, or if it is dated in both' styles, the day on which it falls due shall 
 be reckoned according to that day in the new calendar which corresponds to 
 the day of the old calendar which is represented to be the day on which it 
 was drawn." 
 
 1' See, specially, Hoffmann as cited, and the Magazine for Practical Juris- 
 prudence, by Schaffner, Seitz, and HaufFmann, vol. i. 1862, part iii. pp. 47-53, 
 against the theory that would determine the effect of the bill and its trans- 
 missions by the law of the place of payment. 
 
346 [§ 85. 
 
 6th. The conditions of recourse are to be ruled by tbe law 
 which determines the liability of that obligant in the bill 
 against whom recourse is desired to be had, and, therefore, as 
 a general rule, by the law of the place from which the indorsa- 
 tion or the bill itself, as the case may be, is dated, the rule 
 that the holder is entitled to rely upon the litera scripta 
 being applicable in this case also (cf. supra, p. 340). For the 
 obligant has bound himself ultimately to pay the contents 
 of the bill, if the conditions required by his own law are 
 fulfilled : we refer specially to the requirement of a protest 
 or notification.-^^ Many authors are, however, of a different 
 opinion. The opinion which makes the law of the place of 
 the action the rule,^' unless it proceeds on the principle that 
 the lex fori is always applicable, if that law does not itself 
 • command the application of some other,^" does not require 
 further discussion, and we need only note that, as the place 
 
 18 Story, § 360. Pardessus, Nos. 1485-1497. Mass^, Nos. 141, 193. 
 Schaflfner, p. 122. Oppenheim, p. 405. Seuffert, Comm. i. p. 253. Beseler, 
 iii. p. 369, note 16. Koch, Preussisches Privatr. ii. § 617, 3. Hoffmann 
 Wechselordn. pp. 705, 606. Draft of the commercial code for Wiirtemberg, 
 Art. 1003. " The law of the place where the person, against whom a claim of 
 recourse is to be made, entered upon the obligation, will regulate the right of 
 recourse as regards its competency and extent." Judgment of the Supreme 
 Court of Appeal at Liibeck, 24th October ,1821. (Jurisprudenz, p. 290-91). 
 Judgment of the Court of Konigsberg affirmed by the Supreme Court at 
 Berlin on 3rd July, 1830. (Simon and Strampff, Eechtspriiche, 3, p. 29). 
 Judgment of the Supreme Court at Ziirich, 1st September, 1853. (Borchardt, 
 p. 242, note 341) Judgment of the Supreme Court at Berlin, 9th May, 1857. 
 (Striethorst, 24, p. 289. Borchardt, p. 242). " In the case of a bill drawn in 
 this country upon some person abroad, if questions arise as to the right of re- 
 course to which an indorsee in this country is entitled against the immediately 
 prior obligant by reason of an indorsation made by the latter in this country, 
 these must be settled by the law of this country, in so far as the necessity of a 
 protest being taken against contingent obligants is concerned." Judgment of 
 the Supreme Court at Berlin, 21st February, 1860. (Seuffert, 14, p. 283). 
 This decides specially that the law of the place where the bill is drawn, and 
 not where it is payable, will determine the obligation of the drawer in relation 
 to the necessity of taking a protest in order to make good the right of 
 recourse. 
 
 1' Cf. for instance, Liebe on the D. W. 0. with illustrations, p. 231. 
 Judgment of the Supreme Court at Mainz of 5th February, 1829. (Archiv. 
 fiir Rheinhessen, i. p. 341. 
 
 2» Cf. supra, p. 63. 
 
.§85.] 347 
 
 of action and the domicile of the obligant will, as a general rule, 
 be the same, the result of that theory will generally coincide 
 with the result of our own.^^ But if it is to be contended 
 against us from another point of view, that in this matter all 
 the parties to the bill have subjected themselves to the law 
 of the place of payment, and that it is imperatively necessary, 
 in judging of a right of recourse which affects several parties, 
 that one and the. same law should rule all the various claims 
 of recourse, because any obligant who pays must have it in 
 his power to recover from the obligant who is prior to him;^^ 
 we must take exception to the former of these arguments by 
 pleading that the importance of the solemnities required to 
 found a right of recourse hes in reality in this, that the person 
 against whom recourse is to be had need only pay, if he is 
 provided with summary evidence and immediate intimation 
 of the fact that the contents of the bill have been demanded 
 in vara from the principal debtor,^* and that, therefore, the 
 solemnities in discussion here are of no importance with 
 reference to the obhgation against the drawee (or, as it may 
 be in some bills, the maker), and can consequently have no 
 connection with the law of his domicile.^* 
 
 The weight of the second argument is lessened by the 
 consideration, that the form, the place, ^^ and the time 
 appropriate for taking a protest are ruled by the law of the 
 land where this protest is to be taken (and so, as a general 
 rule, by the law of the place of payment).^^ 
 
 21 Cf. Renaud. Wechselrecht, p. 72, note 5. Giinther, p. 742-43. Heise's 
 Handelsrecht (Frankfurt A. M. 1858), p. 222. Judgment of the Supreme 
 Court at Kiel, 5th February, 1848 (Seuffert, 6, p. 161-62.) 
 
 22 See the rationes of the judgments of the Supreme Court at Dresden 
 (Seuffert, 2, p. 2 and 322). 
 
 23 The Code de Commerce, Art. 170, for instance, provides that the right of 
 recourse against the drawer shall only be lost by neglect to take a protest, if 
 the drawer can show that, at the time at which it should hare been taken, he 
 was covered. 
 
 2* A protest can only influence the liability of the acceptor upon clear 
 proof of mora. 
 
 25 By " place," of course we mean the particular locality, i.e., the dwelling- 
 house or place of business of the debtor. 
 
 2" Story, § 360. Pardessus, No. 1497. Schaffner, p. 122. Draft of com- 
 mercial code for Wiirtemberg, Art. 1003, p. 2. Judgment of the Supreme 
 Court at Berlin, 12th April, 1845 (Decisions, 12, p. 374), and 9th May, 1857- 
 
348 [§ 85. 
 
 It follows from tlie fact tliat a protest upon a bill is a 
 public instrument, and tbat this instrument obtains faith with 
 the public by being executed by some official or notary under 
 the rules of his own law exclusively, as the rule " locus regit 
 actum " requires, that the form of the protest must be deter- 
 mined by the law of the place where it is taken.^^ As the 
 protest shows that payment has been demanded at the pro- 
 per place from the principal obligant, — that is, the acceptor, 
 or in certain circumstances the maker, of a bill, — it follows 
 that the law of the place where the protest must be made,^^ 
 determines the particular locality where it is to be made. 
 But that law by which parties intended that payment should 
 be regulated is the only law that can determine whether 
 application for payment was made to the principal debtor 
 opportuno loco. Lastly, the period within which a protest must 
 be taken is dependent upon the law recognised at the place 
 where it is taken, because the principal debtor undertakes 
 his obligation, and the other obligants intend that he shall 
 undertake the obligation only in conformity with his own 
 law, and the protest is meant to supply evidence that he has 
 not fulfilled his obligation or has failed to undertake it.^^ 
 
 (Seuffert, 12, p. 400), D. W. 0. Art. 86. " As to the form of transactions for 
 upholding or putting in force the rights created by a bUl, which may be 
 carried out abroad, the foreign law will decide." 
 
 2' Cf. especially a judgment of the Supreme Court of Appeal at Liibeck, 
 in 1833, reported by Thdl (Entscheidungs Griinde, p. 293). Judgment of the 
 Court of Cassation at Paris of 18th Brumaire, an. 11 (1802) (Sirey, 3, i. p. 139). 
 
 28 Cf. Hoffmann, Wechselordn. p. 610. 
 
 2" The holder of the bill is in this way bound by the habits, usages, and 
 laws of the place where it is to be protested ; e.g., he is bound by the holidays 
 and the hours for closing places of business (cf. Hoffmann, Wechselordn. p. 
 608-9). This, however, is not, as Hoffmann seems to assume, the only reason 
 for applying the law of the place where the operation is carried through, and- 
 we must not, therefore, concede that the 86th Article of the D. W. 0. (see 
 note 26 ad fin.) in using- the expression "form" means only to denote these 
 modifications, which prevent the holder of the biU from uncontrolled action 
 at the place of the protest, and will allow the law, which rules at the place 
 where those against whom recourse is to be taken are domiciled, to decide 
 generally questions in relation to the other essentials for carrying out a pro- 
 test. In our view, the admissibility of days of grace is to be determined by 
 the law of the place of payment. It is undoubtedly true (Hoffmann, p. 610), 
 that days of grace, which are of advantage to the drawee, impose a specially 
 onerous condition upon the right of the bill-holder to make good his claim ; 
 
§ 85.] 349 
 
 The prior obligant against whom a claim of recourse is 
 taken will, finally, be safe against that claim if he can show 
 that the party claiming recourse has culpably failed to fulfil 
 the conditions which foreign law may require to establish a 
 further right of recourse against prior obligants abroad ; for 
 the holder of the bill is bound to give up his right in the 
 bill to the obligant against whom he claims, and if he has 
 culpably put himself in such a position that he cannot dis- 
 charge this duty, the person against whom the claim is made 
 
 for, in order to keep up his claim, lie must present it once on the day it falls 
 due, and if payment is not made on that day, on the different days of grace ; 
 but it is questionable, as Hoffmann himself recognises, whether the maker did 
 not really give the drawee, indirectly it may be, a right to demand delay for a 
 few days, if days of grace should be recognised at his domicile. The days of 
 grace are so closely and substantially bound up with the liability of the prin- 
 cipal debtor, that we must hold that aU who are parties to the bill without 
 qualification had the law by wMch that liability is regulated in their view ; 
 and we must also reject the view wMch Hoffmann holds on principle to be the 
 correct one (although not in harmony with the language of the D. W. 0. which 
 would rather that the law of the place where the obligation is undertaken 
 were exclusively applied), that these days of grace must be recognised for the 
 benefit of the drawee, both when they are required by the law of the place 
 where the obligation is constituted and when they are recognised by that of 
 the place where the bill is presented. And no counter argument can be 
 drawn from the fact that the necessity of taking a protest {e.g., against all the 
 contingent obligants) must be determined by the law under which the obliga- 
 tion of the particular person, against whom recourse is to be had, was con- 
 stituted, for this reason that there is no connection between the necessity of 
 taking a protest and the obligation of the drawee, or of the maker in a bill 
 drawn upon the drawer himself (cf. note 23). It is plain that our theory, 
 whereby the law of the place where the protest was taken rules, best ensures 
 the safety of trade. The precaution of taking a protest against all the con- 
 tingent obligants, or of intimating to the obligant immediately preceding the 
 protestor, can easily be taken ; but it cannot be expected that the bill-holder 
 should know and observe the different days of grace appointed by all the 
 systems of law, under the jurisdiction of which any of the obligations on the 
 bill may have been undertaken. The periods of grace allowed in the case of 
 bills payable at sight are not now in question. They are to be determined 
 (see too Hoffmann, loc. cit, pp. 605-9) by the law to which the liability of the 
 various obligants is subject, according as recourse is had against them ; for 
 they have nothing to do with the obligation of the drawee, who is by the law 
 of bills equally responsible whether he accepts before or after the expiry of 
 the period fixed for presentation by the law of the maker. The biennial 
 period for presentation fixed by the D. W. 0. will, therefore, always be of 
 service to makers and indorsers of bills who are domiciled in Germany. 
 
350 [§§ 85, 86. 
 
 acquires thereby a peremptory right to refuse payment We 
 cannot deny tliat this rule may be productive of hardships ; 
 these, however, would not so much be consequences of the 
 diversity of the laws of different countries as of the excessive 
 strictness which prevails in some countries as to bills, par- 
 ticularly with reference to the necessity of notice.^"' ^^ 
 
 §86. 
 
 Qth. Most writers^ are of opinion that the limit of the 
 interest payable on account of delay should be determined 
 by the local law to which the liability of the individual debtor, 
 against whom recourse is had, is subject, and therefore, as a 
 general rule, by the law of the place from which that obligant's 
 obligation is dated ; because the making of the bill and each 
 transmission are separate transactions, and the obligants liable 
 to recourse, although they undertake that payment shall be 
 made at the place upon which the bill is drawn, do not 
 bind themselves to pay it at any other place than that of 
 their own domicile (that is to say, the place from which the 
 bill or indorsation is dated).^ Some English writers, however, 
 propose in all cases to take the law of the place on which 
 the bill is drawn as regulative.^ The law that regulates each 
 
 '" The judgment of the Supreme Court of Appeal at Liibeck, of 31st Jan. 
 1858, reported by Borchardt., p. 242, is of no importance for the determina- 
 tion of the question, whether the necessity of taking a protest is to be deter- 
 mined by the law of the place of payment, or of the place where the defender 
 undertook his obligation ; in that case the obligation was undertaken in Eng- 
 land, and was payable there, and the defender did not, until a subsequent 
 date, give up his trading establishment in London, and establish himself in 
 Frankfurt (by the law of England a note of protest is, in the case of inland 
 bills, equivalent to a formal protest). 
 
 31 The view that the law of the domicile of the creditor in the bill rules, 
 adopted by BouUenois, i. p. 370, because that is the only law he knows, has 
 found very few adherents. A judgment of the Tribunal of Commerce at 
 Hamburg of 19th May, 1859 (Borchardt, p. 242), recognises that the time- 
 ousness of the notification must be determined by the law of him who 
 makes it. 
 
 1 Pardessus, Nos. 1499-1500 ; Story, § 314 ; Burge, iii. p. 773 ; Hoffmann, 
 p. 426. 
 
 2 ^tory, § 315. 
 
 3 Kent and Chitty. Cf. the citations in Story; § 315. 
 
§ 86.] 351 
 
 new indorsation will also determine the competency of ac- 
 cumulating the re-exchanges.* 
 
 *Ith, The law of prescription applicable is that which is 
 recognised at the domicile of the individual obligant. This 
 ■is a consequence of the principles already laid down as to the 
 prescription of personal obligations. An exception is only recog- 
 nised in so far as the bill holder is entitled to reckon upon 
 a longer period for taking action, in virtue of his confidence 
 in the litera scripta of the undertaking in the bill or indorsa- 
 tion.^ Each indorsation constitutes a special contract by 
 itself, the subject of which is, no doubt, dependent on the law 
 of the place of payment, its vahdity, however, and its period 
 of currency being independent of that law.'' 
 
 In this case, too, the debtor on the bill may take the 
 objection that the .holder has through culpa lost, by the 
 operation of prescription, the right of action against some 
 obligant prior to the debtor against whom action is raised.'^ 
 
 * Mass6, p. 169 ; Story, § 314, note 6 ; Pardessus, No. 1500, believes that 
 an indorser may be made liable for an accumulation of re-exchanges if a 
 previous indorser or the drawer were in this position. See on the other hand 
 Mass6 and Story, as cited. 
 
 ^ As a rule, therefore, the law of the place where the obligation is under- 
 taken must be applied. Mass^, p. 197 ; Pardessus, No. 1495 ; Eenaud, 
 Wechselr. p. 22 ; Oppenheim, p. 705 ; Hoffmann, Wechselordnung, p. 605. 
 Compare the judgments of the Supreme Court at Stuttgart, of 1st July, 1852 
 (Seuffert 8, p. 2) ; of the Supreme Court of Appeal at Liibeck, of 30th Sep- 
 tember, 1848 (Jurisprudenz, p. 176) ; of the Court of Cassation of the Rhine, at 
 Berlin, of 8th October, 1838 (Volkmar, p. 249) ; and 6th March, 1843 (Seuffert, 
 2, p. 163) ; of the Faculty of Law at Gbttingen, of 31st January, 1858 (Archiv. 
 fiir. D.W.E. 6, p. 294) ; and of the Cour Eoyale of Paris, 29th March, 1836 
 (Sirey, 36, 2, p. 457). The law of the domicile of the obligant was the rule 
 laid down by the Supreme Court of Austria in a judgment of 9th June, 
 1858 (Goldschmidt Zeitsohrift fiir das gesammte Handelsr. 2nd year, Part I. 
 p. 135). When the domicile is changed after the obligation on a bill has been 
 undertaken, the litera scripta of the bill will usually obviate any difficulty. 
 See Pardessus. See, too, the judgment of the Supreme Court of Appeal at 
 Liibeck, 26th February, 1861 (Seuffert, 14, p. 169), against the view that the 
 law of the place of action should rule. 
 
 ' [In the case of a bill payable to order, the law of the place where it was 
 drawn will regulate the period of prescription. This was decided by the 
 Supreme Court of Moscow, 17th March, 1877 ; but, as we have seen above, 
 this is not inconsistent with the doctrine of the author ; cf. note 1 to § 85.] 
 
 ' Cf. Draft of a Code of Commerce for Wiirtemberg, art. 1004 : " If an 
 indorser against whom a claim is made could show that the conditions which 
 
352 [§ 86. 
 
 8th, When a bill lias been lost, any declarator of discharge 
 or cancellation must, in accordance with general principles, 
 be obtained against each one of the obligants on the bill, in 
 accordance with the law which determines his special liability, 
 and before the court to which he is subject, which will gene- 
 rally be the judex domicilii. Since, however, all obligants 
 will be discharged if the acceptor is free, any decree of this 
 nature which is obtained in conformity with the law of the 
 acceptor's domicile ^ wiU enure to all the other obhgants.^ 
 The same rule holds good with reference to decrees of this 
 nature in the case of a bill drawn upon the party himself. 
 If such a decree is in accordance with the law of the domi- 
 cile of the maker, all are free. 
 
 9th, The competency of a special form of action upon biUs, 
 and of special diligence and execution is immediately dependent 
 on the law under which the obligation to make good the biU 
 on which action is taken was constituted, and next upon the 
 law of the place of action or of execution, as the case may be 
 — upon the former because the bill debtor by his contract has 
 necessarily subjected himself to the compulsitor which belongs 
 to such an obligation ; ^^ upon the latter because the forms 
 of process and of execution must be regulated by the lexfori}^ 
 
 were necessary to enable him by foreign law to have recourse against a prior 
 obligant have not been fulfilled, he is protected against the claim." Par- 
 dessus, No. 1499, and Pohl, Commercial Law, p. 656, are of a different 
 opinion. 
 
 8 And in certain circumstances the law of the place where the acceptance 
 took place. 
 
 ' The validity of the obligation of the indorser, as of the drawer, does not 
 depend upon the validity of the acceptance. But it is quite true that if 
 the acceptor is free, all other obligants, if the bill has once been validly 
 accepted, are thereby discharged, for the only obligation they have under- 
 taken is that he shall accept and shall pay according to his own law. If, 
 then, in a question with the real bill holder, the acceptor is discharged as if 
 he had paid, these other parties must be free also. 
 
 1" Heise, Handelsr. p. 140 ; Eenaud, Wechselr., as cited in note 20 supra. 
 
 11 A judgment of the Supreme Court at Berlin, of 11th May, 1858 (Striet- 
 horst, N.F., 2nd year. Vol. I. p. 91), says : " Articles 84-6 of the D.W.O. do 
 not intend to regulate the extent of the material consequences resulting from 
 indorsation by foreign law, but merely the formalities of the bill. The debtor 
 must therefore submit to the ordinary laws of process as to bills which obtain 
 at the place where the Court is situated." Another judgment of the Supreme 
 
§ 86.] 353 
 
 10th. As regards the proof of foreign law, we may refer to 
 the prmciples already laid down (§ 32), with which the practice 
 of the Supreme Court of Germany seems hitherto to have 
 corresponded, with this caution, that if an instant verification 
 of facts is required, the same despatch must be required when 
 the fact for inquiry is foreign law unknown to the judge, on 
 pain of having the action thrown out and the plea repelled.^^ 
 
 Court at Berlin, 10th July, 1860 (Seuflfert, 14, pp. 282, 283), says : " The 
 special provision of the 2nd article of the D.W.O. — viz., that the debtor in a 
 bill must answer for the fulfilment of his obligations with his person and his 
 property — belongs, as the place of this article in the D.W.O. shows, to the 
 nature of the transaction and to the real law of bills, and not merely to 
 the rules of process. Any one indorsing a bill in our territory, or drawing 
 one, if he does not belong to the excepted classes, makes himself liable 
 by this declaration of his will to the dOigence appropriate to bills. But if 
 one does this in a country where it has no such effect, he cannot be touched 
 by legal consequences which are only attached to the act by a law that has 
 no application to him. It does not follow that diligence appropriate to bills 
 is competent because summary procedure is. . . . The question, to what extent 
 the defender — putting out of view the peculiar diligence appropriate to this 
 legal category — can be rendered liable to ordinary diligence for debt, has 
 nothing to do with the law of bills, and cannot, therefore, in this case be 
 decided by American law, but is rather dependent upon the law which deals 
 with execution generally. 
 
 ^ The judgments of the Supreme Court of Appeal at Dresden, in 1848, 
 (Borchardt, p. 241), and of the Supreme Court of Appeal at Liibeck, on 31st 
 May, 1858 (Archiv. fiir D. Wechselrecht, 7, p. 374), affirm that the judge, if 
 he should know the foreign law, may apply it without requiring proof of it, 
 and, by applying it in such circumstances, wUl the better act up to his duty 
 as a judge by avoiding unnecessary delays of process, and giving speedy 
 despatch to matters of trade and exchange which require it. The Supreme 
 Court at Kostock has not required proof of foreign law where the document 
 founded upon complies with the provisions of the D.W.O. (1853, Borchardt, 
 p. 239 ; cf., too, Hoffmann, pp. 597, 598). The tribunal at Darmstadt has, 
 on the other hand, rightly required a summary proof where in the document 
 the word " exchange " was wanting (Archiv. fiir Praktisohe, Rechtswissen- 
 schaft von Schaffner, 1852, part 2, p. 64). In my opinion, it is at variance 
 with the principles of action upon biUs to hold, with Hoffmann, that in such 
 cases a counter-proof of the foreign law will be allowed. The document 
 must appear to be a bill, otherwise the defender cannot be called upon to 
 answer in the form of action appropriate to bills, or to allow any preliminary 
 inquiry in the ordinary form. In reference to protests, see § 32, notes 3 and 11. 
 
 2 A 
 
354 \Noie K. 
 
 Note K, on §§ 84-86. 
 
 [The law of England on this subject is stated by Mr. 
 Westlake, at p. 243 et seq. According to that law (1) the 
 extent of the obligation incurred by the acceptance or making 
 of a bill is determined by the law of the place where it is 
 payable, and the liability of any indorser as a surety for 
 payment is indirectly affected by that law ; (2) parties who 
 contract to pay in consequence of an indorsement made by 
 a third party will refer the vaUdity of their obligation to the 
 law of the place where the indorsement takes place ; (3) the 
 necessity or sufficiency of a demand or protest is determined 
 by the law of the place of payment ; (4) in case of failure to pay, 
 the holder is entitled to interest, and to the amount of the bill, 
 in accordance with the law of the place where it was payable. 
 
 It will be observed that the lex loci contractus is not 
 applied in English law to the same extent or effect as in 
 the text, the lex loci solutionis taking its place except so far 
 as regards the validity of an indorsement to transfer the obli- 
 gation contained in the bill ; as regards the import or extent 
 of the obligation itself, it is not recognised as regulative. The 
 drawer and indorsers are regarded as sureties for the payment 
 of the debt contained in the bill according to the conditions 
 and at the time fixed by the law of the place of payment ; 
 and hence, although they have drawn and indorsed a bill with 
 a certain limited currency, if, by the law of the place where 
 that bill falls to be paid, an extension of its currency is 
 allowed, as happened in France during her war with Germany, 
 this extension will affect their liabiHty, so that it will be cor- 
 respondingly prolonged. Kouquette v. Overmann, 1875, L. 
 E., 10 Q. B., 525. 
 
 The law of Scotland holds that the place of payment 
 will determine the law that is to regulate the bill, and that, 
 for example, a foreigner drawing upon a Scot, the bill to be 
 payable in Scotland, has entered upon a contract the validity 
 and import of which must be determined by the law of the 
 place of pajrment — viz., Scotland, and that although no 
 acceptance was ever given in Scotland. In the same way, if 
 the question concerns the validity of an indorsation, the law 
 of the place of payment is appealed to ; nor is it merely the 
 
Note K] 355 
 
 validity of the contract constituted by drawing or indorsation 
 that is so regulated, but all that relates to the nature and 
 essence of the contract contained in the bUl or indorsations 
 thereof Questions of compensation, prescription, or the Hke, 
 being extrinsic to the contract contained in the bill, may subsist 
 to different effects between the holder and the drawer, acceptor, 
 or each indorser, according to the provision of the lex fori 
 of him against whom the holder takes recourse ; but the law of 
 Scotland views the drawing, acceptance, and indorsation, all 
 as dealing with one and the same contract — viz., the assigna- 
 tion of the fund lying in the hands of the drawee at the place 
 of payment, and aU therefore as regulated by the law of the place 
 of payment, thus running counter to the doctrine of the text, 
 and adopting that of Story, § 317. See, on the law of 
 Scotland, Kobertson v. Burdekin, 14th Nov. 1843, 6 D. 17; 
 and Stewart v. Gelot, 19th July, 1871, 9 M., 1057. 
 
 In direct contradiction to these cases, the court at Leipsic 
 (Botta V. Ehrts, 4th December, 1876), proceeding on the 
 principle of the text that the lex loci actus will regulate the 
 liability of each separate indorser, has held that the obliga- 
 tion undertaken by an indorser, to guarantee payment at the 
 expiration of the period of currency, cannot be affected by any 
 extension ' of that period that may be subsequently intro- 
 duced in conformity with the law prevailing at the place of 
 pajrment. A similar decision, giving effect to the law of the 
 place of indorsation, was pronounced by the court at 
 Bordeaux (Newton v. Marcillac, 24th January, 1880), in the 
 case of a charter-party transferred by indorsement in Eussia : 
 by Russian law such a transaction does not transfer property, 
 but merely gives a right to claim delivery ; and, therefore, 
 although by the law of France, which was the forum and the 
 place of pajnnent, the indorsee would have had a higher right 
 — viz., an independent right of property, it was held that he 
 had only the rights of a Russian indorsee, and was, therefore, 
 liable to all objections competent against the indorser. That 
 the endorsement depends for its vaUdity on the lex loci actus — 
 e.g., that a blank endorsement, or an undated endorsement, or 
 an endorsement that does not bear to be " for value received," 
 is good if the law of the place where it was made does not 
 demand these conditions, and must be recognised even in a 
 
356 [J^ote K. 
 
 country where they are required, the place of payment being 
 in the latter country — has been decided by the Tribunal Civil 
 de Marseilles (Domestini v. Icaramanga & Cie., 5th December, 
 1876) ; the Court of Paris (29th March, 1836 ; Sirey, 1836, 
 Q, 457); and the Court of Bordeaux (Morgan v. Lefargue, 7th 
 June, 1880). The Deutsche Wechselordnung, § 56, and the 
 Code of Commerce of Switzerland, § 437, expressly make this 
 provision. In so far as mere forms are concerned, the law 
 of Scotland and of England will require and recognise obser- 
 vance of the law of the place where the bill or an endorsation 
 is made ; otherwise the intention of parties to bind themselves 
 is not evident. It is as to the Validity and effect of such trans- 
 actions that they hold the place of payment to be regulative. 
 
 It may be noted that blank endorsation is recognised in 
 England, the United States, Belgium, Germany, Portugal, 
 Hungary, Russia, Denmark, and Austria. 
 
 The EngHsh doctrine as to the law that regulates protests 
 receives support from decisions in France and in Eussia, 
 which reject the doctrine of the text ; the Court of Paris 
 (Brocheton v. Aron et Cie, 22nd Nov. 1875) has held that 
 the validity of a protest must be determined by the lex 
 solutionis ; and the Commercial Tribunal of St. Petersburg 
 (Gibbs V. Sewastianofif, 27th January, 1875), laid down that 
 a bill must be protested within the time and according to the 
 forms prescribed by the law of the place of payment. 
 
 A case decided by the Supreme Court of the Empire (Reichs- 
 gericht) at Leipsic, 24th Sept. 1875, illustrates the general 
 doctrine of the law of obligations, that the extent of the 
 debtor's liability is to be measured by the law of his domicUe, 
 and the special apphcation of it to the law of bills whereby, 
 as stated in the text, the conditions of recourse are regulated 
 by the law that determines the liabihty of that obligant in 
 the bill against whom recourse is sought. The ordinary case 
 of the application of this rule — viz., the case of indorsers or 
 the drawer, has already been dealt with : in the present case, 
 however, a bill was drawn and accepted in due course by 
 the drawee ; a subsequent indorsee having come against the 
 drawee for the contents of the biU, was met by the defence 
 that he had no funds of the drawer in his hands ; it turned 
 out that he had, after the date of the presentment, paid funds 
 
MteK,%87.] 357 
 
 at that time in his hands belonging to the drawer to him. 
 By the law of the drawee's domicile the presentment did not 
 operate any assignation of these funds so as to interpel pay- 
 ment of them, and the court held that the measure of his 
 liabiHty must be determined by his law as the obligant, and 
 that no recourse could be had against him, he having paid 
 away the funds drawn upon under the cover of his own law. 
 
 The French courts will not entertain action for the contents 
 of a bill accepted by a foreigner and payable to a foreigner in 
 a foreign country (Laurie v. Lacy O'Brien, C. de Paris, 2nd 
 January, 1875) ; nor does the fact that the bill was drawn 
 in Paris confer jurisdiction upon them, if it is payable abroad 
 in foreign money, and the dispute arises between two 
 foreigners ; they will not exercise jurisdiction although the 
 transaction of trade, which gave the bill its origin, took place 
 in Paris, and there is an assignation of all rights in and to 
 the bill to a French subject (Ottet v. Vereken, G. de Paris, 
 28th July, 1879.) The unwillingness of French courts to 
 permit foreigners to conduct suits before them is noticed at 
 length, infra, § 118, note. 
 
 In America the interest due, and aU that concerns the days 
 of grace, demand and protest, are determined, as in England, 
 by the law of the place of payment : but the engagement of 
 each indorser is determined by the law of the separate con- 
 tract which he has made. Wharton, §§ 449, 452-54.] 
 
 G. Obligations Quasi ex contractu and Quasi ex delicto. 
 § 87. 
 Obligations of this class are, by the unanimous voice 
 of almost all authors, made subject to the law of the place 
 where the act was done or the circumstances took place 
 from which the obligation arose.^ Obligations specially 
 affecting the owners of land, such as those which refer 
 to the actio aquae pluvice arcendce or finiv/m regundo- 
 
 ^ Burgundus, v. 1 ; Christianseus, Decis. vol. i. decis. 283, No. 14 ; Alderan 
 Mascardus, Ooncl. 7, No. 15 ; Seuffert Comm. i. p. 256 ; Renaud Privatr. i. 
 § 42, note 28 ; Schaffner, pp. 123-4 ; Mass^, p. 139, 224 ; Burge, iii. p. 1003 ; 
 Foelix, i. p. 259. Miihlenbruch, Pandects, i. § 73, proposes that obligations 
 ex lege should be determined by the law of the domicile of the person under 
 obligation. As to assignation, transmission to heirs, and discharge of the 
 obligations dealt with in this paragraph, see infra, § 88, note 3. 
 
358 [§ 87. 
 
 rum of Koman law, are in accordance with this rule to be 
 detenniaed by the lex rei sitcB. Special instances of the obU- 
 gations now in question are the liabihty created by receiving^ 
 or deahng with other persons' property (condictio indebiti, or 
 carrying on a business without a mandate to do so) habiUty for 
 the delicts of others, or damage done by animals,^ and analo- 
 gous cases. The principles on which these depend have been 
 already laid down (§ 66), and in accordance with them an ex- 
 ception must be recognised for the case of some one incurring 
 an obUgation by reason of an act or deed connected with a 
 thing belonging to himself, — e.g., by reason of the damage 
 caused by an animal belonging to him, — where this thing or 
 animal was in the territory where the damage was done with- 
 out the privity or help of its owner : in such a case there 
 is no principle which will justify the application of the law of 
 the place where the damage was done to determine the 
 liability of the person.* There is in such a case no further 
 obUgation upon the owner than is provided by the law of the 
 place in which the animal or piece of property last was with its 
 owner's will, while at the same time he cannot incur any further 
 obligation than the law of the place where the act was done 
 ordains. But if the property of the thing that did the damage 
 passes by the law of the place where it was done to the person 
 who suffered, or to a public officer, then by the application of 
 the rule of the lex rei sitce the general rule would be observed.^ 
 The obligation of guardians is also referred to a quasi 
 contract, and rightly, in so far as the guardian can be com- 
 
 2 Seuffert as cited : " In claims of repetition the law of the place where the 
 original transaction took place rules, but where the question is whether the 
 payment was indebitum or without legal ground, regard will always be had 
 to the law which regulates the relation produced by the payment. Of, too, 
 Poelix as cited. 
 
 8 The law of the place where the damage was done, and not that of the 
 domicile of the defender, rules in cases of " actio de pauperie," according to 
 judgment of the Supreme Court at Berlin on 5th August, 1843 (9th Dec. p. 
 381). It is to be observed that in that case the action was instituted at the 
 domicile of the defender, and the law of the place where the damage was done 
 was unfavourable to the defender. Koch, on the 34th paragraph of the 
 Introduction to the Prussian A. L. E. and Bornemann, i. p. 66, profess to 
 agree with this. 
 
 * Of. Criminal Law, infra, §§ 137 and 141. 
 
 6 Cf. § 64, note 8. 
 
§ 87.] 359 
 
 pelled to undertake the office. If the office is voluntarily 
 undertaken, this seems rather to be a real contract, partly 
 belonging to public policy, in which the guardian, inasmuch 
 as the question is one of jus publicum, cannot make condi- 
 tions, but is rather forced to come under the operation of the 
 statutory rules of guardianship which prevail at the seat of 
 the official establishment which superintends his adminis 
 tration.^ 
 
 The obhgation to undertake the office is, however, ruled 
 by the lex domicilii of the person selected for the office.'' 
 No one can be obliged to undertake a guardianship abroad 
 from which the law of his own country, if the office were 
 open there, would absolve him.* But if any one volun- 
 tarily undertakes such a charge, then, in accordance with 
 what we have said, he is unconditionally subject to the law 
 recognised at the seat of the court which superintends aU 
 curatories, and must, therefore, give the caution which it 
 requires, although the law of his own domicile might not 
 require that of him in similar circumstances.^ 
 
 It is often said by French writers, and assumed in the 
 practice of the French courts, that a foreigner cannot be 
 appointed guardian to a French subject, because the rights 
 and position of a guardian belong to the class of droits 
 civils, and, as has also been said, constitute in a measure an 
 office of State (dignite)}" Unless the law specially provides 
 that foreigners shall be excluded from this office, they are 
 not to be excluded, according to our view (cf. what has been 
 said above, § 27, as to the equality of foreigners and natives 
 in the eye of the law), since it is not consistent with our 
 
 * The same is true of the duty of a public officer (Giinther, p. 742). The 
 law of the State in whose service the person concerned is must rule. 
 
 7 Savigny, § 380 ; Guthrie, p. 303. 
 
 ^ In my view, no one is bound to undertake foreign guardianships, to 
 which the law attaches obligations inordinately in excess of those imposed by 
 his own law. We are not concerned with such slight divergencies in the 
 regulations of the office as may be easily found prevailing in different provinces 
 of the same State. 
 
 " Bouhier, chap, xxvi., No. 206 ; chap, xxviii., No. 83 ; Schaffner, p. 124 ; 
 Foelix, i. p. 260. Unger as cited above. 
 
 w Cf. Mailhers de Chassat, No. 230 ; Gand, No. 498, and the judgments 
 there referred to. 
 
360 [§§87,88. 
 
 views of law to hold guardianship to be in substance an office 
 ,o£ State connected Ti^tli political rights. It is, however, true 
 that, on grounds of expediency, the appointment of foreigners 
 to such offices should not be made." 
 
 D. Oblioations arising from Illicit Acts. 
 §88. 
 
 We have already tried to show that obligations ex delictis, 
 in so far as their object is to make good the loss sustained,^ 
 are subject to the law of the place where the act took 
 place. ^' ^ We propose, therefore, now to do no more than 
 test the opposite opinion, held by many authorities, by which 
 a coercitive character is ascribed to the laws that deal with 
 such obligations, and the law of the place of action taken as 
 the exclusive rule.* The considerations urged upon this 
 point by Wachter— viz., that the judge, in an action upon 
 such an obligation, can give the pursuer no other redress 
 than the law to which he (the judge) is subject, declares to 
 be just — would exclude altogether the application of foreign 
 law, and lead to the exclusive application of the lex fori, 
 unless it were allowable for parties expressly to subject them- 
 
 1' We must understand the 192nd paragraph of the Austrian Code in this 
 sense. Cf. Unger, p. 304. [In Scotland, the Court will not appoint a person 
 out of their jurisdiction to be factor. Thorns, § 42, p. 43.] 
 
 ^ See supra, § 66, pp. 272-73, as to the treatment of such obligations 
 intended to impose punishment. 
 
 2 The majority of authors take this view — no doubt without expressing any 
 precise view as to the case of a claim upsn a delict intended as a penalty. 
 So Burgundus, v. 2 ; Seuffert, Comm. i. p. 253 ; Eeyscher, i. § 82 ; Phillips, 
 i. § 24, p. 192 ; Kori, iii. p. 13 ; Kenaud, Privatr. i. § 42, note 28 ; Mitter- 
 maier, § 30, p. 116 ; Bichhorn, § 36 ; Schaffner, p. 124. So, too, an act of 
 the Supreme Court of Appeal at Munich, 5th June, 1855 (Seuffert, 9, p. 325). 
 See, too, the grounds of judgment of the Supreme Court at Berlin, cited in 
 note 3 to the preceding paragraph. 
 
 3 We need not here show in detail that the assignation and discharge of 
 claims by reason of illicit acts in bankruptcy, or by prescription and the trans- 
 mission of obligations ex delictis to heirs, are ruled by the principles already 
 examined. (See §§ 76, 78, 80.) 
 
 * Wachter, ii. p. 289 ; Savigny, § 374 ; Guthiie, p. 253. Judgment of the 
 Supreme Court of Appeal at Darmstadt, 30th September, 1853 (Seuffert, 9, 
 pp. 1-2) ; and of the Supreme Court at Stuttgart on 25th January, 1856 
 (Seuffert, 11, p. 2). 
 
§ 88.] 361 
 
 selves to foreign law ; for it -would have to be applied in 
 cases where a thing had been possessed in accordance with 
 our law for ten years, in which time our law declares that 
 the owner shall lose his right, whUe it might be that the lex 
 rei sitce held that that result does not ensue until a longer 
 period has elapsed. As a matter of fact, in asking that the 
 lex fori should be applied, what is really asked is that in 
 foreign countries every person should be obliged to observe all 
 the provisions of the law^ which are recognised at the seat of 
 the court, while at the same time the pursuer, in actions for 
 a penalty, has an important power given to him which is in 
 such actions specially dangerous.* In this connection, refer- 
 ence may be made to the reasons urged above, § 27, against the 
 application of the lex fori to questions of material private law. , 
 On the other hand, the judge must decide, in the hght of 
 the law of his own country, the question whether the claim 
 so made is to be held as a claim of damages or as a penal 
 action ; and should he hold it to be the latter, he can only 
 entertain the claim in so far as his own law wiU allow." 
 The place of the delict must not, however, be held to be the 
 place where the act had its operation, but the place where it 
 was actually itself done.^ We shall recur to this point in the 
 treatment of criminal law. We need only observe here that, 
 if the act is not forbidden at the place where its operation was 
 
 ^ See, on the other hand, Heffter, p. 71. Wachter, p. 395, makes an 
 exception for the case where the foreign State, in whose territory a subject is 
 injured, declares the act to be such as does not ground a claim for recompense 
 and satisfaction. 
 
 ' Savigny, too, recognises this danger (§ 374 ; Guthrie, p. 256), but holds 
 that it is very much diminished by the restrictions to which the jurisdiction is 
 always subject. See, howerer, the provisions of Art. 14 of the Code Civil, or 
 consider the possibUity of bringing a counter-action or obtaining compensation. 
 
 ' For instance, the courts of Hanover must always throw out an actio cesti- 
 matoria for injuries, in conformity with § 391 of the Hannov. Processdnung, 
 even although the pursuer should have a claim for a sum of money by the 
 law of the place where the act was done. Cases of this kind have occa- 
 sioned the view which we have assailed in the text. On the other hand, how- 
 ever, the judge cannot give decree for more than the law of the place of the 
 act allows. 
 
 ' Judgment of the Supreme Court of Appeal at Munich, 16th March, 
 1847 (Seuffert, 3, p. 325). Hommel, Rhaps. Qusest., vol. ii. obs. 409, note 17, 
 is of a different opinion. 
 
362 [§ 88. 
 
 felt, tlien no action for a penalty can be brouglit, even in 
 the courts of the country where the act was done.® 
 
 The obHgation of one who has been compelled to pay ali- 
 ment^" to the mother of an illegitimate child cannot be called 
 an obhgation ex delicto ; whereas, on the other hand, the obH- 
 gation to make payment to one who has been seduced, by way 
 of compensation for the loss of a respectable marriage, has the 
 character of an obligation ex delicto}^ 
 
 The reproduction of literary and artistic works belongs to 
 the category of ilhcit acts. If we remember the historical 
 origin of literary and artistic property, which was originally a 
 privilege specially conferred in each case upon the individual,^^ 
 and then ipso jure was given to every native author or pub- 
 lisher,^^ and if we also remember that m dubio the judge in 
 an action upon delict must give decree in favour of the 
 defender, we shall be able to explain the practice,^* which is 
 almost universal, whereby in default of any express provision, 
 including works that have appeared abroad, the protection of 
 the law is confined to the property in works that have 
 
 ° Judgment of the Supreme Court at Berlin, 25th June, 1858 (Striethorsfc, 
 30, p. 130). A defamatory letter was sent by a Prussian to a person domi- 
 ciled in England, and was delivered there. Proof was required that the act 
 was penal by the law of England. Of. infra, § 141. 
 
 1° Of. on that point the law of the family, § 105. 
 
 11 Of. Wachter, ii. p. 396, and infra, § 105. It is obvious that an action 
 must be thrown out if the law of the court before which it comes holds it to 
 be indecent or immoral. This is no peculiarity of actions on delict (cf. supra, 
 § 33), although it occurs most frequently with them. 
 
 12 Cf. on this point Warnkdnig in Pbhl's Kritischer Vierteljahrschrift fiir 
 Gesetz and Eechtsw. 1859, p. 47, and Bluntsohli in his Staatsworterbuch, i. 
 p. 615. 
 
 1^ That does not exclude the possibility of demanding this privilege from 
 the legal conscience and sense of right, just like property in things ; but it 
 wiU always remain, from the nature of things, an impossible task to place 
 property in things on an equality with property in intellectual products. 
 
 1* See Poelix, vol. ii. p. 320, and authors quoted there in note 1, Piittlingen, 
 § 101. [See too the decision of the Eeichsgericht at Leipsic, 12th June, 1880. 
 No protection is accorded to literary, musical, or artistic works published 
 abroad, and a foreigner can only obtain protection if his work is published 
 for the first time in Germany. In France, on the other hand, by the decree 
 of 28th March, 1852, a foreigner is able to obtain for a work, even if it is 
 published abroad, the same protection as a native author for a work published 
 in France, by observing certain prescribed formalities.] 
 
88.] 363 
 
 appeared in its own country. There is not in this any 
 revolt against the general principle of the equality of 
 foreigners and natives before the law ;^^ that charge could only 
 be made if protection were denied to works written abroad 
 and published in this country. 
 
 In more modern times several treaties for the protection 
 of literary property have been concluded. ^^ 
 
 This is not the place to discuss the claims which the 
 legislature and the makers of treaties. should in this subject 
 take into consideration. It may merely be noted that it is in 
 accordance with the true principles of private law that all copy- 
 right should be protected by the law of every country, and 
 that nothing more should be required in order to confer such 
 a copyright than the fulfilment of the conditions imposed upon 
 publication by the law of the country, and that no regard should 
 be had to the circumstance whether the author or publisher 
 is domiciled in this or any other country, or whether the 
 foreign author enjoys a less complete protection in his own 
 country. More recent treaties have taken those considera- 
 tions into account ; they are, however, — and this should not 
 be forgotten, — considerations for the legislature.^'' 
 
 Patents are valid only in the country in which they are 
 given, but may be extended to foreigners. 
 
 The protection against counterfeits enjoyed by industrial 
 products has in law no other foundation than a privilege 
 specially granted to aU manufacturers ; and as on the one 
 hand the foreign manufacturer has, in the absence of a special 
 statutory provision or a treaty to that effect, no protection 
 against counterfeits produced in this country,^^ so, on the 
 
 ^^ The author of an essay in the Deutsche Viertel Jahrsschrift (1859), on 
 the protection of literary property, lays this down as a principle. 
 
 ■■' See, too, the corresponding resolutions of the German Bund. 
 
 ^^ See the appendix by Warnkdnig in Pohl's Vierteljahrschrift and Blunt- 
 schli, as cited p. 618, as to the different treaties. See, too, the resolutions of 
 the Congress which met in Brussels in 1858 to consider the questions as to 
 the international protection of literary and artistic property. [Of. supra, note 
 14.] 
 
 1' So, too, the constant practice of the Court of Cassation at Paris (Foelix, 
 ii. pp. 324-25). FoelLx complains of it on grounds of expediency. The Police 
 Code of Hanover gives foreign manufacturers protection on condition of 
 reciprocity insured by treaty, §§ 225, 250. 
 
364 [§§88,89,90. 
 
 other hand, since the legality of producing counterfeits 
 must be determined by the law of the place where the 
 act is done — i.e., where the goods are made — the native 
 manufacturer, in like manner, has no good claim on account 
 of counterfeits produced abroad. ^^ If the sale of such counter- 
 feit goods were forbidden, then, of course, the native manu- 
 facturer would be able to prosecute any person seUing them 
 in this country. 
 
 v. — Law of the Family. 
 
 INTRODUCTION. 
 
 §89. 
 
 The law on this subject is in general, as we have already 
 shown, ruled by the lex domicilii of the persons concerned. 
 We need not, therefore, do more in this place than deduce 
 the consequences of this general rule, and see what modifica- 
 tions of it are required by the interference of rules of law 
 upon other subjects with the sphere of the law of the family. 
 
 A. Maeeiage. 
 
 1. Personal Capacity. Impediments to Marriage. 
 
 §90. 
 
 It is generally recognised that the marriage is subject to 
 the law of the domicile of the married persons — i.e., of the 
 husband, for the wife's domicile is dependent on that of her 
 husband.^ Marriage rests upon a contract, but a contract 
 very different from ordinary obligatory contracts,^ and even 
 although the difference in the nature of the contracts was 
 not enough to justify our rule, we could establish it on 
 the ground that the marriage is to be carried out and to 
 subsist at the husband's domicUe. 
 
 1' Judgment of the Cour de Paris of 29th Not. 1850, cited by Demangeat, 
 note to Foelix, p. 325. [The law of trade-marks is 'the same.] 
 
 ^ By the laws of all civilised peoples the husband is the head of the family, 
 SavigDy, § 379 ; Guthrie, p. 291. 
 
 2 Savigny as cited ; Story, § 109. [For the doctrine of " matrimonial 
 domicile," see infra, p. 379.] 
 
§ 90.] 365 
 
 First, The application of this principle to the conditions 
 under which marriage may be contracted, or from a negative 
 point of view, to the restraints upon marriage, presents no 
 difficulty if the spouses have the same domicile :^ in parti- 
 cular the place of celebration does not rule in such circum- 
 stances, although, on the one hand, a restraint on marriage 
 which does not forbid, but merely impedes it, will, from its 
 very nature, be defeated if the marriage is celebrated in a 
 foreign country ; and, on the other hand, the officials and 
 clergy of any country cannot be forced to assist in celebrating 
 a marriage which, by the law of that land is held to be 
 inadmissible and incapable of being licensed by a dispensa- 
 tion.* The former circumstance, combined with the principle 
 which, as we shall see, is to regulate the form of the celebra- 
 tion — viz., " locus regit actum," appears to have given rise to 
 
 3 Hem. de Cocceji, De fund. vii. 22 ; Cochin (Buvres, ii. p. 154 ; Seger, 
 pp. 8-9 ; Walter, § 46 ; Holzschuher, i. p. 82 ; BouUenois, i. pp. 495-6 ; 
 Wachter, ii. p. 185 ; Piittlingen, § 56 ; Thiil, § 80 ; Mittermaier, i. § 30, 
 p. 1 16 ; Wheaton, § 92, p. 122. As to the recognition of this principle in legis- 
 lation, see Foelix, ii. p. 483. See, too, the judgment of the Supreme Court 
 at Berlin, reported in the Decisions, 29, p. 380, 15th January, 1855 (especially 
 p. 396). Story, § 95, lays down that a prohibition upon the marriage of 
 subjects with foreigners or persons of a different religious belief, need not be 
 recognised in any other country where such a restriction does not exist. This 
 is, however, only true if we are asked to apply the prohibition to the marriage 
 of a native woman with a foreigner, either because he is a foreigner or is a 
 heretic ; for it is in that case alone that the prohibition comes into collision 
 with the right of emigration, which international law must recognise. In the 
 opposite case the woman claims to be naturalised, and then the State may im- 
 pose whatever conditions it thinks fit. Schaffner propounds a peculiar theory, 
 p. 129 : — " If in this country a marriage between particular persons is pro- 
 hibited, then this country will not recognise a marriage between these persons 
 although it may have been celebrated abroad in some country where it was 
 allowable. On the other hand, the country in which it was concluded must 
 certainly recognise it. What of a third country ? We think that it will be 
 recognised there also, although the law of that country may also forbid it ; 
 this is so, either because the prohibition applies exclusively to the citizens of 
 that country, or because the forbidden marriage was not contracted in 
 territorio." This theory is refuted by the principles which we have laid down 
 in the text. But it may also be well to remember how inconvenient it would 
 be for the interests of whole families if a marriage were to be declared null in 
 one country and valid in another. Cf. Story, § 81 ; Savigny, § 379 ; Guthrie, 
 p. 291 ; Gand, p. 373 ; Foelix, ii. pp. 376-82. 
 
 * Gand, No. 377. 
 
366 [§ 90. 
 
 the rule wliicli some writers and the courts of England and 
 America have adopted, that the validity of a marriage, even 
 as regards prohibitions and the personal capacity of the 
 spouses, must be determined by the law of the place where 
 the marriage is celebrated,* exceptions being admitted only 
 in the case of polygamy, or an incestus juris gentvam.^ 
 According to our view a marriage contracted in a foreign 
 country for the purpose of evading legal prohibitions that 
 exist at the domicile of the parties wiU be held to be null;^ 
 it will also be necessary for the validity of the marriage that 
 the parties should at least have acquired a domicile at the 
 place of celebration in bona fide;^ and, finally, it must be 
 admitted that the transgression of a prohibition upon mar- 
 riage which prevails at the place of celebration will not 
 make the marriage void, if there is no such prohibition by 
 the lex domicilii.^ 
 
 It follows at the same time from the application of the 
 lex domicilii, that any dispensation from a restraint on 
 marriage must be obtained at the domicile of the intending 
 spouses, and not from the officials or the sovereign of the 
 country where the marriage is celebrated.^" 
 
 Some authorities, instead of making the law of the domicile 
 of the husband the exclusive rule,^^ as most do,^^ hold that 
 where the parties concerned have not the same domicile, the 
 particular law of the domicile of each of the spouses must 
 rule his or her case. We cannot meet this contention with 
 the argument that the husband is the head of the family, and 
 that, therefore, his law must rule, since in such cases we are 
 dealing with circumstances antecedent to the existence of that 
 
 5 Huber, §§ 12, 13; Story, § 89 and § 113 ; Burge, i. pp. 15, 186 ; Of. 
 Putter, Rechtsfalle, iii. pt. i. p. 81. [But see infra, p. 371, as to English law.] 
 
 ° Se?, however, the difficulty of determining what is mcestus juris gentium, 
 Grotius. de. J. B., ii. c. 5, § 12. 
 
 7 Huber, § 8 ; Bouhier, ch. 24, No. 12, 50. 
 
 8 Burge, i. pp. 190-4-5 ; Of. Story, § 116a. 
 » Story, § 79. 
 
 10 Demangeat on Foelix, ii. p. 375-76. 
 
 11 Wheaton as cited ; Wachter, ii. p. 186 ; Harum in Haimel's Magazine, 
 vii. p. 397 ; Gand, No. 378. 
 
 12 Savigny, § 379 ; Guthrie, p. 291 ; Holzschuher, i. p. 81. 
 
§ 90.] 367 
 
 headship. ^^ But in spite of the general accuracy of the rule, 
 ■which we have adopted, we may allow the following modifi- 
 cation to be made. If the marriage is prohibited by the 
 law of the wife's domicile, but not by that of the husband, 
 the wife acquires a new domicile, not by the celebration of 
 the marriage, but from the fact that she follows her husband 
 to his domicile." If a new domicile is acquired, its law must 
 rule ; and we can only recognise an exception in the case 
 where the woman is incapable of changing her domicile 
 without the consent of some third party,^^ such as a guardian 
 or curator.^® 
 
 1' Harum as cited. [In the case of Musurns Bey and Oomtesse d'lm^- 
 court, 28th May, 1880, the Court of Paris, who was asked to determine the 
 validity of the marriage of a French minor lady with a foreigner, held that it 
 was a petitio principii to urge, that as her personal law had been altered by 
 the marriage, French law could not apply ; and subsequently annulled the 
 marriage, which had been celebrated in England, on the ground of clandes- 
 tinity, 24th Feb. 1882.] 
 
 " If the marriage is not in conflict with the law of the husband's domicile, 
 the wife has a right to require one there. 
 
 16 Of. supra, pp. 103-04. 
 
 1* The distinction taken by linger, p. 190, note a, is not quite to the 
 purpose : " In so far as the question is one merely as to the age required for 
 marriage, or as to the necessity of obtaining the consent of third parties to 
 enter upon the marriage, then certainly each side will be regulated by the law 
 of its domicile ; but where the question is one as to the position which one 
 side holds towards the other — e.g.. as to the capacity of a Christian to marry a 
 Jewess, or a Jew a Christian, a cousin to marry a cousin, or an aunt a nephew 
 — then both sides will refer the question absolutely to the domicile of the 
 husband." The provision which has been introduced in many countries (see 
 Piittlingen, § 57), by which foreigners are required to produce a certificate 
 from their government that the proposed marriage is permissible by the law 
 of their country, has failed as a practical regulation, since there is often no 
 officer at the place of domicile who can give such a certificate. In the absence 
 of special treaties, it seems safer only to require proof where a marriage is 
 contracted in this country between a foreigner and a woman of this country, 
 that the wife will be received as such in her husband's domicile, and to leave 
 to the parties concerned to make all further inquiries as to the existence of 
 other impediments to the marriage, unless from the representations of parties 
 themselves it is known, or is matter of everyday knowledge, that there is 
 some impediment which the law of this country cannot get over (cf. Foelix, 
 iL pp. 384-86). 
 
- 368 [§ 91. 
 
 2. Form of Celebration. 
 
 § 91- 
 
 Secondly, Since the marriage itself is subject to the law of 
 the husband's domicile at the time of the celebration of the 
 marriage, the form of celebration must depend on this law 
 also. But the rule " locus regit actum " has for long been 
 applied here/ except where there is some special statutory 
 provision to the contrary, such as there may very well be ; 
 and this rule has been ranked in English and American 
 practice as a principle, although they do not seem to refuse 
 recognition to a marriage celebrated according to the forms 
 of the domicile, in so far as the spouses belonged to the 
 same country before their marriage.^ 
 
 Most systems of law which have any express declaration 
 on this subject recognise the rule " locus regit actum," in 
 
 1 Hist. iv. 10 ; Oocceji, vii. 24 ; Hofseker, de eff., § 28 ; Bouhier, c. 28, 
 No. 59 ; Hommel Khaps. Quaest. vol. ii. obs. 409 ; Lauterbach. Diss. Acad. iii. 
 128, c. 9. No. 3 ; Cochin CEuvres, i. p. 153 ; Boullenois, i. pp. 494-5 ; Piitter 
 Eechtsf. iii. pt. i. pp. 69-80 ; Titius, Ins. Pr. i. c. 10, § 21 ; Oppenheim, 
 p. 393 ; Burge, i. p. 184 ; Wheaton, p. 115 ; Schaffner, p. 127 ; Foelix, ii 
 p. 367, note 2. The Code Civil, in its 170th article, recognises the principle ; 
 but in spite of that, neglect to publish the marriage in the way required by 
 French law may in certain circumstances operate nullity of the marriage in 
 France. See Foelix, p. 382, as to the disputed meaning of the latter part of 
 the I70th article, cf. Mittermaier, i. 16 ; Stephen, i. p. 243. 
 
 ^ Burge, i. pp. 169-199 ; Story, § 79a, but see the decision in § 80 to the 
 opposite effect. Where the lex loci actus is infringed, it may, under certain 
 circumstances, be doubtful whether there was any intention to enter into a 
 binding contract. See supra, p. 139. For the validity of a marriage con- 
 tracted in English form in a heathen country, or in an English settlement 
 among heathens, see Story, 118-19. Marriages celebrated in the houses or 
 chapels of English embassies according to English law wiU be held valid, 
 Burge, i. p. 168. See, too, the judgment of the Supreme Court of Appeal at • 
 Dresden, of 21st June, 1845, reported by Seuffert, vol. ii. p. 6, by which a 
 marriage contracted in Belgium between two subjects of Saxony, was held a 
 legal marriage, although the Belgian regulations as to the celebration of mar- 
 riages before a civil ofiBcial, and the registration of the same, were not observed ; 
 because, although the rule " locus regit actum " is put in force by the practice 
 of the court, yet the law of Saxony must decide in the case of a legal trans- 
 action between two subjects of Saxony, the legal existence of which is recog- 
 nised by that law, and the legal consequences of which the same law must 
 determine. [Cf. infra, pp. 371-72.] 
 
§ 91.J 369 
 
 relation to marriages contracted abroad by their subjects 
 although of course there are exceptions.^ 
 
 Some writers make an exception to the rule in cases where 
 the marriage is celebrated abroad, in fraudem legis, in order 
 to avoid the forms prescribed by the law of the parties' own 
 country.* We have already seen, however, supra p. 138, in 
 discussing the rule locus regit actum, that in such a case the 
 expression in fraudem legis is out of place. The laws of Eng- 
 land and of America recognise at the domicile of the parties 
 concerned a marriage celebrated abroad in conformity with 
 foreign law, in spite of the stringent regulations as to banns 
 and a religious ceremony laid down by the law of the domi- 
 cile ; and that even although the evasion of these forms which 
 encumber the marriage ceremony may have been the sole 
 motive for celebrating it abroad.' 
 
 So, too, in more modern times, some authors make an ex- 
 ception in the case where the law of the domicUe requires 
 some ecclesiastical ceremony, on the ground that an enact- 
 ment of this kind has a moral and religious foundation, and 
 therefore a coercitive character.^ But, although the reason 
 
 ' e.ff. A Bavarian proclamation of 12th July, 1808 (16), declares all mar- 
 riages contracted by Bavarians abroad null (Foelix, ii. 494). This law, on the 
 grounds referred to above (§ 90, note 14), cannot be recognised as applicable 
 to marriages contracted between Bavarian women and foreigners in a foreign 
 country. If such a law exists in a country where there is a constitutional 
 right of emigration, it must be read with reference to that right, and restricted 
 to the marriage of natives with foreign women. [See p. 373.] 
 
 * Bouhier as cited ; Wheaton as cited ; P. Voet, c. 2, § 9 ; J. Voet in 
 Dig. 23, 2, § 4. 
 
 * Burge, i. pp. 192-93 ; Story, § 123. In England such case have occurred 
 remarkably often by reason of the well-known marriages at Gretna Green. 
 See, too, the judgment of the Supreme Court at Berlin, 15th January, 1855, 
 note 8. The declarations of the Congregatio concilii quoted by Eichter, 
 Kirchenrecht, § 246, note 15, no doubt are to a different effect, and an act 
 in fraudem legis is by them considered possible. No doubt the lex domicilii 
 of the husband can refuse to give effect to a marriage contracted abroad, if it 
 is not performed in accordance with the forms of his country, as is done by 
 the English Act for regulating the future marriages of the Koyal Family, 12 
 Geo. III. c. 11 ; Burge, i. p. 193. It is otherwise with the provisions of the 
 English Marriage Acts for subjects of that country. (See Story, note to 
 § 124.) 
 
 « Savigny, § 381 ; Guthrie, pp. 323-24 ; Thijl, § 80 ; Gerber, § 36, note 16 ; 
 
 Unger, p. 210. 
 
 2 B 
 
370 [%9l,N'oteIj. 
 
 assigned for the ecclesiastical ceremony is the true reason, 
 that is no ground for holding that the rule " locus regit 
 actum" is inapplicable. Even ecclesiastical lawyers have 
 maintained the authority of this rule in such cases from an 
 earlier date, where the law of the one country required eccle- 
 siastical ceremonies, while that of the other was satisfied with 
 the simple declaration of the marriage vows -^ the Protestant 
 Church has no reason whatever to reject its authority, since 
 it holds marriage, on the testimony of the Keformers, to be 
 merely a civil ordinance.^ If a rule of law prescribing any 
 such form of ecclesiastical wedlock had this coercitive 
 character, then a marriage celebrated by foreigners accordiag 
 to the law of their original domicile, as a merely civil con- 
 tract, must be held to be void if they shaR afterwards come 
 to live in the country where such a rule exists ; and, indeed, 
 foreigners in such a position could not be permitted to live 
 together as married persons, if they happened to be in 
 such a country even for a short time, for a law so strictly 
 coercitive, like a law prohibiting slavery, does not merely 
 prevent the relation which it forbids arising in its territory, 
 but also forbids it to subsist there.^ There will be an 
 exception in the case of an express statutory enactment 
 enjoining an ecclesiastical ceremony even in a foreign 
 country.^ 
 
 NoU L. 
 
 [The laws of Scotland, England, and America, as stated by 
 the author, all reject the domicile of either of the spouses as 
 
 ' See J. H. Boohmer, Jus. Eccl. Protestant, iii. lib. 4, tit. 3, § 42, p. 1290, 
 and the citations there. 
 
 8 Of. for instance, Libri Symbolici, p. 355, and the thorough examination 
 of the judgment of the Supreme Court of Berlin, 15th January, 1855 (Deci- 
 sions, vol. 29, p. 380), which held an informal marriage at Gretna Green 
 valid, although the law of the domicile of the spouses required the co-opera- 
 tion of the Church. English and American judgments are at one with this. 
 See Burge and Story, as cited. See the Declarationes of the Congregatio 
 Concilii, cited in note 4, with regard to the Catholic Church. 
 
 . " See to the contrary, Savigny, as cited. 
 
 1" So, e.g., by a law of Wiirtemberg, 5th June, 1807. Laws of this kind, 
 which are directed to the regulation of marriages in a foreign country, are very 
 dangerous. See Story, ,§ 124a. 
 
Note L.J 371 
 
 tlie rule for determining the validity of tlie forms under whicli 
 a marriage is concluded, and go so far as to refuse" validity to 
 a marriage celebrated in conformity with the forms of the 
 domicile, but at variance with the lex loci actus, unless it 
 has been celebrated in some country the forms of which 
 cannot be observed by Christian people, or in the hotel of the 
 ambassador of the nation to which one of the parties belongs. 
 " The forms and ceremonies prescribed by the law of the 
 place where the marriage is entered iuto must be observed ; 
 and if they are, the marriage is valid ; if they are not, it is 
 invalid, although the ceremonies actually followed were those 
 of the place of domicile" (Fraser, Husband and Wife, p. 
 1309. C£ also, Westlake, p. 54, and Story, §§ 80, 81 ; see, too, 
 Cabert v. Imqua, Cour de Bruxelles, 21st Nov. 1875, for a 
 recognition of the same principle in Belgium). Just as the 
 law of the domicile may be observed by Christians in a 
 heathen country, the courts of the United States have 
 recognised the validity of a marriage celebrated between two 
 Indians in Missouri according to Indian customs under the 
 superintendence of an agent of the United States Govern- 
 ment (Boyer v. Dively, 58 Miss. 510). 
 
 Scotland and the United States determine also all questions 
 as to the capacity of the parties by the lex loci contractus, 
 and that even although the parties may have resorted to the 
 country where the marriage is celebrated for the express 
 purpose of evading the restrictive laws of their domicile 
 (Fraser, 1300-01). England, on the other hand, regards the 
 capacity of the parties as a matter to be ruled by their 
 personal law, i.e., the law of their domicile, and has refused 
 to sanction an English marriage between Portuguese subjects 
 who were first-cousins, and therefore by the law of Portugal 
 incapable of marriage. This decision was pronounced by the 
 Court of Appeal reversing a judgment of Sir E. Phillimore 
 (Sottomayor v. Barios, 1877, 3 P. D. 1). But the courts of 
 England have recognised Gretna Green marriages between 
 English subjects without the preliminaries required in 
 England, and have also recognised a marriage in England 
 between French subjects without the consent of their 
 parents, an omission which would be fatal to its validity 
 in France (Simonin v. Mallac, 1860, 2 S. and T. 67, and 29 
 
372 [N'ote L. 
 
 L. J. Mat. 97). This decision is reconciled with that pro- 
 nounced in the case of Sottomayor, by holding the consent 
 of parents to be part of the ceremony, and not a matter 
 affecting the capacity of the parties. 
 
 Belgium and France require in certain circumstances publi- 
 cation of notice of marriage in order to validate it. The 
 English courts have recognised marriages of French people 
 valid by the lex loci contractvs, although no such publication 
 had been made, just as they had recognised Gretha Green 
 marriages ; but the French courts, although they do not pro- 
 nounce such marriages void, hold them to be voidable in the 
 discretion of the court (Desaye v. Clement, 4th July, 1879, 
 Trib. Civ. de Yillefranche). If the marriage has been 
 celebrated abroad in fraudem legis domesticce, and in order 
 to avoid publicity, then it will be annulled (Sotty v. Sotty, 
 C. de Douai, 29th Dec. 1875 ; Cour d'Appel de BruxeUes, 
 13th Jan. 1873 ; D'Alinegro v. Louis, 28th Dec. 1876, Trib. 
 Civ. de le Seine, Ctesse. d'lm^court v. Musurus Bey, C. de Paris, 
 24th Feb. 1882). If false representations be made to the 
 authorities of the country where the marriage takes place, 
 this will raise a presumption of nullity, as being proof of a 
 desire for secrecy (Berthaut, 12th June, 1879, Trib. Civ. de 
 la Seine). On the other hand, where there is no evidence of 
 a desire for secrecy, where, for instance, parties contract 
 marriage abroad to avoid the delays consequent on publica- 
 tion, being desirous of emigrating to America speedily (C. de 
 BruxeUes, 12th July, 1871), or where parties are resident in 
 Brazil, and have no opportunity of observing French forms, 
 while their conduct shows an absence of any desire for conceal- 
 ment (Paumier v. Jouard, 16th March, 1879, Trib. Civ. de la 
 Seine), and generally where there is boTia fides, the marriage 
 so informally celebrated secundem legem loci contractus is 
 good (Bouchard v. Eadot, 14th June, 1876, Trib. Civ. de la 
 Seine ; Desaye v. Clement, C. de Cass. 14th Dec. 1880 ; Lebon. 
 C. de Rennes, 27th Aug. 1879). Registration and publication 
 have been held to be formalities the want of which can only be 
 pleaded by third parties who have an interest in reducing the 
 marriage ; the spouses themselves cannot plead their own fraud 
 (Beaufils v. Denis, 21st Nov. 1876, Trib. Civ. de la Seme). 
 
 In Italy publication is required, but the penalty for a 
 
Note L, § 92.] 373 
 
 marriage contracted abroad without publication is not nullity, 
 but merely a fine. 
 
 The vahdity of marriages in the hotels of ambassadors 
 abroad is discussed vnfra, \ 115, note. It is sufiicient to 
 say here that while marriages contracted there by two 
 subjects of the power which the ambassador represents must 
 be recognised, it has been decided in France and Austria 
 that the same privilege cannot be accorded to such marriages 
 where one of the parties is of another nationality. 
 
 A statute of the German Empire of 4th May, 1870, 
 provides that German subjects may be married abroad, 
 according to certain forms, before consuls and diplomatic 
 agents specially authorised.] 
 
 3. Divorce. 
 
 § 92. 
 
 Divorce is in the same way subject to the law of the 
 domicile of the spouses.^ It can never be the purpose of any 
 system of law to determine whether a marriage subsisting 
 between foreigners is dissoluble, or to say on what conditions 
 it may be dissolved. But while the law of any country 
 where an action is brought may refuse to pronounce a 
 divorce as contrary to morality if it be asked to do so upon 
 grounds which it pronounces to be inadmissible, so, conversely, 
 every ground of divorce which the law of the country 
 approves must be unconditionally applied by the judge who 
 has cognisance of the case, since the maintenance of the 
 marriage tie in spite of these grounds for separation must be 
 held to be just as much an offence against morality.^ This 
 difficulty, according to which the lex domicilii on the one 
 side, but on the other the lex fori, would faU to be applied, is 
 solved by the consideration that in actions of divorce — if 
 there be no express statutory provision — the judex domicilii 
 alone is competent, and we cannot admit any voluntary sub- 
 jection of the parties to the law and the tribunals of another 
 country, since it is not in their power to deal as they please 
 
 1 Burge, i. p. 689. 
 
 2 Waohter, § 42 ; Schaffner, p. 159 ; Savigny, § 379 ; Guthrie, p. 298 ; Story, 
 § 227. 
 
374 [§ 92. 
 
 with the subject of the action.^ A decree of divorce, 
 therefore, pronouriced by any other than the judex domicilii, 
 must be held to be inoperative.* If a different view were to 
 
 3 Wheaton, § 151, p. 197. Gand, No. 390, and the practice of French courts; 
 see, for instance, a judgment of the Court of Cassation, 14th April, 1818 
 (Sirey, xix. 1, pp. 193), 27th Nov. 1822 (Sirey, xxir. 1, pp. 48-52), Cour Eoyale 
 de Paris, 26th AprU, 1823 (Sirey, xxiv. 2, p. 65), Cour Eoyale de Metz, 25th 
 Aug. 1825 (Sirey, xxvii. 2, p. 192), Giinther, pp. 731-32. By the law of Baden, 
 L. E. § 234, 102, the courts of Baden have no jurisdiction over the matrimonial 
 suits of foreign spouses,' unless they have obtained leave from the Government 
 to take up their domicile in the country, and have done so, and thereby have 
 the privilege of exercising all the rights of citizenship equally with natives, so 
 long as they continue to reside there, or unless the case shall fall under one 
 of the exceptions provided for in the 63rd paragraph of the Baden regulations 
 as to marriage. In this paragraph it is provided : " If the wife shall acquire 
 for herseK a domicile in this country that shall not give rise to any right to 
 obtain judgment in matrimonial suits with her husband ; the dispute must 
 be referred to the tribunal of the husband's domicile, unless he, with the 
 approval of his Government, shall consent to prorogate the jurisdiction of the 
 courts of this country," V. Hohnhorst, Jahrbiicher des Badischen Oberhofger- 
 ichts, N. P. Jahrgang 2, 1834, p. 339. The revised statutes of Massachusetts 
 of 1835, chap. Ixxvi. §§ 9, 10, 11, declare that their courts shall on no account 
 pronounce decree of divorce, unless the parties have lived together in Massa- 
 chusetts as married persons. Further, no divorce shall be entertained by 
 reason of any circumstances that have taken place in another country, unless 
 the parties have lived together in Massachussets as husband and wife before 
 their occurrence, or unless one of them at the time of the occurrence of such 
 circumstances was living in Massachusetts. By the 39th section, a divorce 
 obtained in some other State by an inhabitant of Massachusetts, on the ground 
 of some fact which took place in Massachusetts, and while the spouses were 
 living there, is invalid, if the said fact w6uld not be ground for a divorce by 
 the law of Massachusetts. The statute of 1843, cap. 74, provides that decree 
 of divorce may te pronounced on account of facts that have taken place in a 
 foreign State, if the pursuer has resided for five years in Massachusetts before 
 raising his action, Story, p. 348, note 1 ; see Piittlingen, § 59, Oesterreichisches 
 Hofdecret, 23rd Jan. 1801 ; see too, Savigny, as cited. This principle is in no 
 way transgressed if a different tribunal from that of the domicile is declared 
 to be competent within the territory of the same State, that State having one 
 system of marriage law. The other principles which regulate the operation of 
 decrees pronounced abroad are excluded from consideration here. 
 
 * Judgment of the Cour d'Appel de Paris, 11th Feb. 1808 (Sirey, viii. 2, p. 
 86). See Burge, i. p. 690, who says : " It seems scarcely compatible with 
 the respect which States owe and render to the laws of each other, that the 
 tribunals of one should afford assistance to the subject of another State in 
 withdrawing himself from the operation of a law which is obligatory on him. 
 Nor is it required by any considerations for the supremacy of its own laws, 
 that such assistance should be afforded." The courts of the different States 
 
§ 92.] 375 
 
 be taken, tlie subjects of a State could easily defeat the law 
 by which they are absolutely bound/ 
 
 On the other hand, the place where the marriage was cele- 
 brated is of no importance. The theory" which proposes 
 that the law of that place should rule, holds divorce to 
 be a contract right of the spouses. If this opinion were 
 correct, no law to regulate divorce could apply to mar- 
 riages contracted before its promulgation.'^ But marriage, 
 although it rests upon the intention of private parties, is 
 a part of jus publicum, and the spouses are absolutely 
 subject to the jus publicum, of the place in which they 
 are domiciled. 
 
 From this the next step is, that the domicile of the spouses 
 at the date of the action, and not that at the date of the 
 marriage, or of the event on account of which divorce is 
 sought, must rule.* Some English judges, no doubt, contend 
 that a marriage concluded in England can only be dissolved 
 by Enghsh law ; in later times, however, there seems to be 
 
 of the Union in America refuse to recognise decrees of divorce pronounced in 
 other States, if the parties were not domiciled there, Burge, i. pp. 691-93 ; 
 Story, § 229a. The statute of Massachusetts cited in the last note makes that 
 special provision. 
 
 The Courts of Scotland, whose practice has varied, have in some cases held 
 that they had jurisdiction although the parties were not domiciled in Scotland 
 — they have been inclined to regard a mere temporary residence as sufficient. 
 The argument specially urged in favour of this view, that residence in any country 
 gives right to the protection of the law and the courts of that country, can 
 never, considering the really permanent character of marriage, give jurisdic- 
 tion to sever this enduring relation definitely, but merely confers power to 
 separate the spouses temporarily, by provisional regulations, with a view for 
 instance to protect the wife against the cruelty of her husband. See Gand, 
 No. 424 ; judgment of the 0. de Cass., 27th Nov. 1822 (Sirey, xxiv. i. pp. 48- 
 52). There is just as little reason for referring to the event on which the 
 action proceeds. No doubt some grounds for divorce, such as adultery, may 
 be held to be delicts also ; but the question whether these acts can dissolve 
 the marriage, is quite distinct from the question by what law the delict is to 
 be judged, Burge, p. 680. [For the present state of Scots law on this subject 
 see note at the end of the paragraph, p. 380.] 
 
 5 Schaflfner, p. 160. 
 
 « Piitter, Eechtsfalle, iii. pt. 1, pp. 80, 85, 86. 
 
 ' Burge, i. pp. 683, 684 ; Story, §§ 221, 222. 
 
 * Burge, i. pp. 682, 683, 388 ; Giinther, as cited ; Savigny, § 379 ; Guthrie, 
 p. 299; Story, §§ 222, 228-29. Of. the statute of 1843 for Massachusetts 
 (Story, p. 348), supra, note 3. 
 
876 [§ 92. 
 
 an inclination rather to take the view that the acquisition of 
 a bona fide domicile^ in the country where divorce is sought 
 is necessary, and is all that is necessary.^" 
 
 It is true that the wife shares her husband's domicile ; but 
 if the husband abandons the place of their common domi- 
 cile, by the law of which the wife is entitled to divorce, she 
 cannot be denied the privilege of raising her action of divorce 
 there, so long as she does not actually follow her husband 
 to his new domicile animo remaneTidi. The fact upon 
 which she founds gives her a right to dissolve the marriage, 
 and at the same time a right to choose a special domicile for 
 herself. The latter depends, however, upon the former, and 
 thus, if. she should follow her husband to his new domicile, 
 the law of that country wiU rule her rights also.^^ If the 
 wife is refused this privilege, then the husband will be 
 able at his pleasure to put an end to any just claim for 
 divorce.^^ 
 
 The same principles which regulate the competency of 
 courts in actions of divorce are to be applied to actions for 
 declarator of nullity of marriage, with the proviso that if the 
 wife has not actually followed her husband to his domi- 
 cile, she may effectually raise an action in her own 
 domicile. This is necessary to justify the assertion in 
 
 ' By bona fide domicile, English jurists understand a domicile animo 
 remanendi. According to the terminology of the common Koman law there 
 is no such thing as a domicile without this animas. 
 
 " Story, § 216; §§ 219 and 226c. Lord Brougham, too, has expressed 
 himself to this effect in more modern times. See note to Story, § 226. Of. 
 Schaffner, p. 160. 
 
 ^^ Story, § 229a. Quid jwis in the case' of a wilful desertion, where the 
 wife does not know where her husband's domicile is ? See Richter, Kirchen- 
 recht, § 269, ad fin. The decree of divorce must in such a case be recognised 
 even at the new domicile of the husband : the marriage law of a State can 
 bind none but the citizens of that State, and the courts of this country can 
 only pronounce decrees against their own citizens. If, therefore, only one of 
 the persons in question belongs to the State, while the other is, by the law 
 of her domicile, freed from the matrimonial tie, the view which would refuse 
 to regard the subject of the one State as a single person would, by conse- 
 quence, require a foreigner to submit to its rule, since marriage consists in a 
 union between two persons. If both spouses change their domiciles, the 
 court of the former domicile ceases to be competent. Story, as cited. 
 
 12 See Fcelix, i. p. 362-63. 
 
.§ 92.] 377 
 
 the action of nullity, that the wife has retained her former 
 domicile.'^^ 
 
 Lastly, there is a difference of opinion as to what law 
 decides the capacity of the divorced party to marry again. 
 Several French authors, proceeding on the assumption that 
 the question is one as to personal capacity, have laid it 
 down that the law of the place where the divorce was obtained 
 cannot be pleaded,^* and have referred exclusively to the law 
 recognised at the subsequent domicile of the party. We 
 have already remarked that almost aU rules of law are 
 capable of being expressed in the form of a deliverance upon 
 the capacity or incapacity of a person, and therefore we cannot, 
 from the mere use of the terms capacity or incapacity, infer that 
 the lex domicilii should be apphed, except where we find the 
 definite conception of incapacity to act and to enjoy rights.''^ 
 
 But, as a matter of fact, to refuse to recognise the capacity 
 of one who had obtained a decree of divorce in a competent 
 foreign court to marry again, would be to deny the vahdity 
 of that divorce. We may therefore assume that there is a 
 capacity for a new marriage if that is allowed by the law 
 which rules in the court that has competently pronounced 
 decree of divorce. But it is only for its own citizens that 
 the law of any country lays down certain bars to marriage, 
 and not for persons who were citizens but have passed into 
 the citizenship of another State. We must, therefore, recog- 
 nise the capacity for a second marriage, if that is the law of 
 any new domicile that may be acquired, although it may not 
 be the law of the place of divorce.-'® The practice of the 
 
 1' Demangeat on Foelix, i. p. 363, note h, forgets this necessary assumption : 
 so, too, Gand, No. 390. 
 
 1* Here, again, the question arises, Is it enough that the divorced husband 
 is permitted by the law of his own domicile to marry again, or must the lex 
 domicilii of the woman who proposes to marry such a person, permit mar- 
 riage with a divorced person 1 The Cour Royale de Paris, 30th Aug. 1824 
 (Sirey, xxv. 2, p. 203-04), took the latter view. (See, too, Fcelix, i. p. 68.) The 
 Cour Eoyale de Nancy, 30th May, 1826, took the former. 
 
 ^* See supra, p. 164. In any case the expression is not applicable to single 
 men who propose to marry divorced women, as is laid down by the decision 
 reported in the preceding note. 
 
 1" The opposite view cannot be justified either by referring divorce to the 
 sphere of jus pvhUcum or asserting that it concerns public order (Demangeat 
 
378 [§ 92, Note M. 
 
 United States is to hold a marriage valid if tlie spouses were 
 capable of a valid marriage by tbe law of tbe place where 
 the new marriage was celebrated.-'^ But it would seem 
 indispensable that these persons should have acquired a hona, 
 Ude domicile there. ■'^* 
 
 Note M, o« § 92, 
 
 [In determining on what principles the courts of any- 
 country will sustain their jurisdiction in divorce or separa- 
 tion, we shall also find an answer to the question what 
 principles the courts of one country, when asked to 
 recognise foreign decrees of divorce, require to be observed 
 in those of that other country before they wiU recog- 
 nise its sentences. If domicile be required in country A 
 to found jurisdiction, its courts will not recognise a decree 
 pronounced in country B upon an asserted jurisdiction 
 ratione delicti commissi. The same rule, too, holds good 
 with respect to the grounds of divorce ; no law will recognise 
 a foreign divorce pronounced on the ground of any infringe- 
 ment of the duties of the married state which is not held 
 sufficient , in its own country to warrant divorce ; e.g., the 
 Scots courts will recognise divorces pronounced in foreign 
 courts on the ground of adultery or desertion, but will refuse 
 recognition to decrees pronounced on the ground of incom- 
 patibility of temper ; and a Scots decree of divorce on the 
 ground of desertion will not improbably fail to obtaiu recog- 
 nition in a country which recognises adultery alone as a 
 ground for dissolution of the marriage. All courts, too, 
 especially those of America, will take care before recognising 
 a foreign decree to see that it was not obtaiued -without due 
 notice and the observance of the regular forms ; cf Shaw v. 
 Att. Gen. (1870, L. R 2, P. and M. p. 15.6), where the 
 husband had no notice of the suit " except an advertisement 
 which he never saw and was never likely to see ;" and a case 
 decided by the Appeal Court of New York (People v. Belker, 
 
 on Foelix, i. pp. 68, 69), for the possession of this character does' not necessarily 
 exclude the application of foreign law. See supra, § 33. 
 
 w Story, § 89. 
 
 18 As to the position of clergymen and officials -whose assistance is required 
 at a marriage of -which their law disapproves, see supra, § 90, p. 366. 
 
iV^ofeM.] 379 
 
 21st Jan. 1873), where it was held that a decree pronounced 
 in another State against a citizen of New^York, who was 
 domiciled in New York, and had been in residence there 
 during the action, could not be recognised. 
 
 A liberal acceptance of foreign judgments in such, cases is 
 made in France. Although the French law does not permit 
 divorce, the courts of France wiU stUl recognise the effect of 
 a divorce pronounced in a foreign court having jurisdiction, 
 where one of the parties is French, and wiU allow the spouse 
 returning to France to marry again, just as if he or she were 
 single. This holds in cases in which the marriage was celebrated 
 in France, and although, from the fact that jurisdiction for 
 divorce is generally founded on domicile, the cases that have 
 occurred have aU been cases where the husband, whose 
 domicile is the domicile of the marriage, was a foreigner, and 
 the wife French, the principle would equally apply where a 
 Frenchman by nationahty had obtained divorce abroad after 
 a bond fide residence of some duration (Brune de Mans v. 
 Guillamnin, Trib. Civ. de Nogent-le-Eotrou, 7th June, 1878 ; 
 Plaquet v. Maire de Lille, Cour d Amiens, loth April, 1880 ; 
 and Plaquet, Cour de Cassation, 15th July, 1878. The last 
 case was several times before the French courts, but wAs finally 
 determined in a sense favourable to the recognition of the 
 foreign decree). The Cour de Paris (13th Feb. 1872) decided 
 that a foreign divorce was good in France, but, by an 
 anomalous restriction of that recognition, required a delay 
 of six months before the parties could validly marry again. 
 
 It will, then, be understood that a court, in exercising its 
 own jurisdiction according to certain rules, and giving decree 
 on certain grounds, implies thereby that it will recognise 
 decrees of foreign courts based upon like jurisdiction and for 
 like grounds. 
 
 The only principles of jurisdiction now recognised are 
 domicile, and what has been called matrimonial domicile, i.e. 
 residence of such a duration and such a nature by the 
 spouses as married persons within any territory, as to justify 
 either of them in holding that their matrimonial relations 
 are to be determined by the law of that territory, and that 
 he or she is therefore entitled to appeal to that law against 
 any infringement of these relations by the other spouse. 
 
380 [Note M. 
 
 The jurisdictions formerly claimed . in Scotland by virtue of 
 a residence by the defender for forty days, coupled with 
 citation there, and in other cases by virtue of a -personal 
 citation in Scotland, and the fact of the commission of 
 the adultery there, the forum delicti commissi, have now 
 been distinctly abandoned (Stavert v. Stavert, Feb. 1882, 
 9 R. p. 519). In this case all the previous authorities 
 on the subject were reviewed, and jurisdiction on these 
 grounds rejected, and it was held that the mere fact of 
 the commission of the adultery in the territory could not 
 give the courts any right to deal with the status of the 
 parties permanently. 
 
 Domicile, i.e. a complete domicile, such as would regulate 
 succession, is admitted as founding jurisdiction for divorce 
 not only in America, Scotland, England, and other countries 
 where domicile is the ordinary ground for founding juris- 
 diction and determining capacity, but is also accepted as 
 suiEcient in France, Belgium, Italy, and countries where 
 nationality and not domicile is the ordinary criterion for 
 determining the status capacity and personal rights of every 
 individual, and establishing jurisdiction. The American 
 courts in New Jersey have refused to entertain an action 
 instituted by a Canadian woman, who had been married to 
 an American citizen in New Jersey, his domicile being in 
 another State (Blumenthal w. Tannenhole, May, 1879,Chancery 
 Court of New Jersey) ; and have also declined to recognise 
 a divorce obtained in Utah without a domicile or residence 
 being had in that State (Supreme Court of Minnesota, 2.5th 
 April, 1878). A Frenchman who married a Belgian, and 
 afterwards lived for twenty years in Belgium, was held to 
 have acquired a domicile there, and therefore to be entitled 
 to divorce according to the law of Belgium, in spite of the 
 fact of his French nationality at the date of his marriage 
 (Vimenet, C. de Bruxelles, 12th May, 1877). In this case 
 there was complete honcL fides in the residence in Belgium, an 
 important consideration, as we shall see. The domicile in 
 such cases is always the domicile of the husband, which is 
 imputed to the wife. (In England, Ratcliff, 1859, 1 S. and 
 T. 467 ; Wilson, 1872, L. R 2, P. and -M. 435. In 
 Scotland, Warrender v. Warrender, 1835, 2 C. C. and Fin. 
 
J!^oteM.] 381 
 
 488 ; and 2 SI. and M'L. 154). In France tlie nationality 
 of a wife has in the same way been held to be sunk in that 
 of her husband so as to entitle him to divorce her, being a 
 Frenchwoman, in his own courts abroad (Van Overbecke, 
 Trib. Ciy. de la Seine, 13th April, 1880). A suit in Austria 
 at the domicile of the husband was held competent, although 
 the wife, who brought the action, was living at the date of 
 the action, and had lived for the greater part of the married 
 life with her husband in Italy (Supreme Court of Austria, 
 31st July, 1872). 
 
 There is also accepted as a ground for founding juris- 
 diction in cases of divorce a domicile of somewhat less 
 completeness than is required for the purposes of succession. 
 In Scotland it has been the opinion of eminent judges that 
 " there may be a residence or domicile founding jurisdiction 
 such as would not regulate succession, as where a husband 
 and wife have been for years resident in Scotland as married 
 parties, but where the husband, from being a foreigner, and 
 only in Scotland on the public service, may never have 
 acquired a domicile of succession in this country " (per Lords 
 Neaves and Mackenzie, in Jack v. Jack, 7th Feb. 1862, 24 
 D. 467). "The impossibility of resting jurisdiction in 
 divorce exclusively on the domicile of succession is obvious 
 from other considerations equally cogent and conclusive " 
 (per IngHs L. J.-C, in same case). This has since been 
 recognised in Scotland as sound law, but Lord Westbury, in 
 the House of Lords, in giving judgment in a Scotch appeal 
 (Pitt V. Pitt, 4 Macq. 627), indicated a distinct opinion that 
 this "matrimonial domicile," as it has been called, is hot 
 a good ground on which to rest jurisdiction. It was not, 
 however, necessary for the decision of the case that this view 
 should have been expressed ; it has not been put in force 
 in any Scots judgment, nor is it consistent with the law of 
 England as stated by the highest authorities (see infra). 
 Inglis L. P., thus states the present state of the law in the 
 case of Stavert v. Stavert (cited supra) : " Now, a very 
 important question arises in some such cases, whether the 
 domicUe necessary to found jurisdiction is the same as that 
 which would regulate the intestate succession of the husband, 
 or whether it is not sufficient that Scotland has been the 
 
382 [Fote M, 
 
 settled home of the marriage for some period with no inten- 
 tion of leaving the country, where the spouses have settled down 
 to live, where the household gods have been set up for the 
 time, and which, if a separation, judicial or otherwise, has 
 been arranged, would be the place where one party owes the 
 duty of returning for the restitution of the conjugal relations. 
 ... It has not yet been decided in the court of last resort " 
 (i.e. the House of Lords) "whether it is so, and I merely 
 notice the matter in passing. If the answer depended on 
 the decisions pronounced by this court, it is pretty clear 
 what it would be." His lordship indicates that the theory 
 formerly adopted in Scotland of the sufficiency of such a 
 domicile would still be applied by Scots courts, but his 
 brethren. Lords Deas and Shand, ia the same case, held 
 that a complete domicile would be necessary. 
 
 In England there seems to have been the same question, and 
 the same hesitation as to the sufficiency of any domicile short of 
 a complete domicile ; but the law, as it stands at present, is 
 thus stated by Mr.Westlake (p. 75) : "When the husband, being 
 either petitioner or respondent, though not domiciled in Eng- 
 land, is resident there, not on a visit or as a traveller, and not 
 having taken up that residence for the purpose of obtaining or 
 facilitating a divorce, the Court has authority to grant a divorce 
 wherever the adultery was committed, or, if the husband be 
 respondent, wherever the adultery, and cruelty or desertion 
 were committed." Cf. Niboyet, 1878, L. R 4, P. D. 1, the 
 tendency of which decision is to make residence and not domicile 
 the ground for jurisdiction. The necessity of recognising in 
 such matters some special ground of jurisdiction less stringent 
 than that required in ordinary questions as to status or juris- 
 diction, has been indicated by the following decisions of Conti- 
 nental courts : — Such a domicile can be acquired without the 
 loss of a foreign nationality (Cour de Cassation, 1 1th July, 
 1855) ; it was held to be acquired by a foreigner who had 
 married a Frenchwoman, and who had lived in France for 
 several years and carried on a trade there (Klotz v. Klotz, 
 Trib. Civ. de Marseilles, 23rd April, 1875) ; domiciled 
 foreigners will, in the discretion of the Court, be allowed to 
 sue in French courts for separation du corps, the French law 
 not sanctioning divorce, if neither party objects to the 
 
Note M.] 383 
 
 jurisdiction, if public order and morals are not offended, and 
 if the Frencli court is forum conveniens (Mazy v. Joly, 16tli 
 March, 1878, C. de Nancy) ; in Switzerland, domicile wiU 
 confer such jurisdiction without naturalisation (App. Court of 
 Geneva, 6th May, 1876), and by a diplomatic convention of 
 1869, French and Swiss courts have conceded to each other 
 mutual jurisdiction of this character. This has been ob- 
 served in the Swiss decision just cited, and by the Court 
 of Cassation in France (Benweguen, 1st July, 1878). 
 This doctrine of "matrimonial domicile" has also been 
 applied by the French courts to this effect, that a woman 
 who has hved with her husband for a considerable period in 
 France, is entitled to appeal to the French courts for a 
 separation, although the husband has gone abroad ; the 
 object of his departure being to withdraw himself from 
 French jurisdiction and to embarrass his wife in the pursuit 
 ofher remedies (Ramondenc, C. de Cass., 19th February, 1875; 
 X., Cour de Chambery, 27th August, 1877). The laws of 
 England, Scotland, and America will also sanction the 
 . establishment of such a separate domicile by the wife, in 
 order to prevent the husband from taking advantage of 
 his own wrong (Fraser, p. 1289 ; 4 Phill. 349 ; Wharton, 
 § 225 ; Elder v. Reel, American Reports, 414). 
 
 This temporary residence or matrimonial domicile (or, it 
 may be, naturalisation in countries where nationality is a 
 ground of jurisdiction) must, however, be genuine and not 
 acquired collusively or for purposes of divorce (Westlake, ut 
 supra) ; to prevent such jurisdiction from being exercised in 
 France, and to protect public morals, the Minister of Justice 
 will intervene (Raunheim, 27th April, 1875, Trib. Civ. de la 
 Seine — a case of collusion) ; where a French couple fraudu- 
 lently acquired Swiss nationality in order to obtain divorce, 
 neither of them having ever left Paris, a second marriage 
 contracted by one of the spouses, may be reduced by the 
 other on the ground of the divorce having been obtained in 
 fraudem legis ; his or her own participation in the fraud is no 
 bar, or even if it were, the Minister of Justice has a title to 
 pursue (Vidal, C. de Paris, 3rd June, 1877). Another case 
 of the same kind is reported, where a Frenchman, already 
 separated from his wife, obtained Swiss nationality in Decem- 
 
384 [TVoife M, 
 
 ber, IS 74, and was divorced in the Swiss Courts in January, 
 1875 ; he married again in February, 1875 ; he had never 
 left Paris, and it was shown that his foreign nationality had 
 been obtained solely in order to further his second marriage ; 
 this was annulled at the instance of the French Minister of 
 Justice (Gravelle Des Valleds, 28th August, 1878, Trib. Civ. 
 de la Seine). The Belgian courts have decided to the same 
 effect, in the case of a Frenchman who had married a 
 Prussian, and acquired Belgian nationality for the purpose of 
 obtaining a divorce (C. de Bruxelles, 12th May, 1877); and 
 in the case of the Princess Bauffremont, noted infra ad fin, 
 the French and Belgian courts concurred in holding that a 
 woman who had been married to a Frenchman, and separated 
 from him in France by decree of the French court, could not, 
 by acquiring a foreign nationality in a country where divorce 
 was sanctioned, thereby convert her status into that of a 
 divorced woman, so as to enable her to marry another ; it 
 was held as proved that her intention in adopting the new 
 nationality was to enable herself to marry again. In Austria 
 it has been held, without any allegation of fraud, that the 
 marriage of a woman, herself a Catholic, and married in 
 Austria to a Catholic, is indissoluble, and that she cannot, by 
 residing in another country and embracing Protestantism, 
 escape a decree of nuUity of the marriage contracted by her 
 abroad, if she should again return to the jurisdiction of the 
 Austrian Courts (Supreme Court of Austria, 17th Jan. 1871). 
 
 In Scotland it has been decided that although the desire 
 to obtain a divorce may be one of the motives that induces a 
 person to acquire a domicile in any country, or indeed be the 
 principal motive, that will not prevent the court from 
 exercising its jurisdiction if a genuine domicile quoad omnia 
 be acquired (CarsweU'u. Carswell, 6th July, 1881, 8 K. 901, and 
 Inglis L. P. in Stavert, ut supra). A matrimonial domicile 
 could hardly be acquired under such circumstances either in 
 England or Scotland, the foundation of that domicile as a 
 ground of jurisdiction being the expectation of the parties 
 that their married relations should continue to subsist in the 
 territory to the law of which they appeal. 
 
 The courts of all countries will also give temporary 
 remedies to injured spouses, even where they have no juris- 
 
Note M.] 385 
 
 diction to affect their conjugal relation permanently ; residence 
 of tlie husband in England will found jurisdiction for a 
 judicial separation; indeed, the English courts will exercise even 
 a jurisdiction for divorce upon the ground of residence ; in 
 Scotland, residence of the spouses, far short of that required 
 to constitute a matrimonial domicile, will give the court 
 jurisdiction in an action of separation and aliment (Eraser, 
 1294), and will enable it also to regulate the custody of the 
 children. The Italian courts wiU authorise a wife to quit her 
 husband's house in cases where they are not competent to 
 proiiounce any decree that will affect the relations of the 
 spouses permanently (Nellinger v. Struve, App. Court of 
 Milan, 15th February, 1876). The Erench courts will award 
 aUment to an injured wife, give her the custody of children, and 
 allow her the expenses of a journey to the territory where her 
 divorce must be sought (Subercasseaux, Trib. Civ. de la Seine, 
 1st December, 1877) ; and even if the expense be the expense 
 of a voyage to America, it will be allowed against the 
 husband, and extra expense admitted on account of the 
 delicacy of one of the children of the marriage, who was to 
 accompany the wife (ibidem). There will be inquiry to see 
 if there be a probabilis causa, but the application for aliment 
 and for expenses ad litem, may be made in the Erench courts 
 although no judicial steps have been taken there (Stein v. 
 Stein, Trib. Civ. de la Seine, 18th August, 1881). A Erench 
 court may also put property , under judicial management 
 pending a divorce suit in a foreign court to which the Erench 
 court is incompetent (Bddarrides v. Grabisheid, Cour de Cass., 
 19th April, 1878), but the aliment or protection will only be 
 given for such limited time as is sufficient to, institute the 
 action in a foreign court, or, in the case of protection of 
 property, to carry through that action (Van Overbecke, 13 th 
 April, 1880, Trib. Civ. de la Seine) ; interim aliment for 
 children who have been awarded to the custody of the wife 
 has also been allowed (Glover ■;;. Glover, Trib. Civ. de la Seine, 
 21st January, 1880). See below, also, p. 387. 
 
 It has not been thougkt necessary to supplement the 
 authority of the text by the citation of any German authori- 
 ties. By the 12th and 13th sects, of the Civilprocess- 
 ordnung of the German Empire, which has been in force 
 
 2 C 
 
386 [N'oteM. 
 
 since 1st October 1879, domicile regulates the forum for all 
 actions for which no exclusive jurisdiction is appointed ; and 
 by -sect. 1 8, the /orum of one who has no domicile in the 
 empire is settled by his residence; § 568 provides, — "In 
 actions concerned with tlie dissolution, invalidity, or nullity 
 of marriage, or with the re-establishment of married life, the 
 court to whose jurisdiction the husband is generally subject 
 is alone competent." 
 
 It may be interesting to note shortly a case that depended 
 before both the French and Belgian courts touching several 
 of the points raised above, and was watched with interest by all 
 Continental jurists ; it has already been partially reported by 
 Lord Fraser (Husband and Wife, pp. 1307-08). The Princesse 
 de Chimay, a Belgian, married the Prince de Bauffremont, a 
 Frenchman, and resided with him in France, acquiring French 
 domicile and nationality ;. they were separated by decree of 
 the French courts on the ground of his cruelty, and the 
 custody of the children was given to the wife ; she thereupon 
 went to Saxe Altenburg in Germany, taking her children 
 with her, and was there naturalised ; by German law, a 
 decree of judicial separation enables the parties to marry 
 again, by French law it does not. Eelying upon her new 
 nationality she married Prince Bibesco in Berlin. The 
 Prince de Bauffremont obtained from the Court of Cassation, 
 in Paris, a decree of nullity of her marriage with Bibesco, on 
 18th March, 1878, on the ground that a woman merely sepa- 
 rated from her husband could not acquire a new nationality, 
 especially if, as was held to be the case, she attempted to do 
 so in order to enter into a new marriage. Following out this 
 judgment, the French court awarded the custody of the 
 children to the father, on the ground of the mother's miscon- 
 duct, and gave decree against her for pecuniary penalties if 
 she should fail to give them up. Her father, the Prince de 
 Chimay, had in the meantime died, and Prince de Bauffremont 
 arrested his succession, to which his daughter was entitled, 
 in order to satisfy the pecuniary penalties imposed by the 
 French court. After various procedure, the Appeal Court at 
 Brussels, on 5th August, 1880, found that the judgment of 
 the French court as to the invalidity of the second marriage 
 was sound, since it would be absurd to hold the lady to be 
 
i\^oi5eM,§93,i\rofeK] 387 
 
 tte wife of one man in France, and of another in Germany, 
 but held that the French court had pronounced a decree 
 ultra vires in imposing a fine to compel performance of their 
 order to give up the children, and refused accordingly to 
 give effect to the application of the Prince Bauffremont for 
 decree of furthcoming, and loosed the arrestments.] 
 
 4. Personal Kelations of the Spouses. 
 § 93. 
 
 Fourth. The strictly personal relations of the spouses are 
 undoubtedly ruled by the lex domicilii,^ but the husband 
 cannot exercise the rights which that law gives him over his 
 wife in a country whose law holds such rights to be immoral.^ 
 
 Ifote N, on% 93. 
 
 [The French courts hold that the personal relations of the 
 spouses are determined by the law of the husband's domicile 
 (Caro V. Caro, Bordeaux, 2nd June, 1875). In other judg- 
 ments there had been a question whether the law of the 
 husband's nationality or that of his domicile should prevail 
 in such matters (Brouski v. Brouski, 23rd Feb. 1876, C. de 
 Bordeaux) ; but the final decision, and the law accepted at 
 present, is in favour of the law of the domicile, and an excep- 
 tion is made to the ordinary French rules of jurisdiction, by 
 which suits between foreigners are not entertained, so that a 
 wife can sue in France upon personal rights given her by 
 French law, where there has been an intention of making a 
 home in France, that intention being indicated by the estab- 
 lishment of a business iu France (Camoens v. Glisko, 12th 
 March, 1878, C. de Aix). In that case the place of the matri- 
 monial domicile was held to determine all the personal rela- 
 tions of the spouses ; and in the later case of Kowalski v. 
 
 1 PhiUips, § 24, p. 189 ; Wachter, ii. p. 185. Cf. Gand, N. 415. 
 
 ^ The husband cannot beat or lock up his wife in Germany, as he is per- 
 mitted to do in certain circumstances in England. Stephen, ii. pp. 261-62 ; 
 Story, § 111. [According to Westlake, p. 61, conjugal rights must be deter- 
 mined by the lex fori, and this is also the law of Scotland — Eraser, p. 1318. 
 According to Story, § 198, the domicile of the marriage, or, if that is not 
 clear, the domicile of the husband will rule.] 
 
388 Note N, § 94.] 
 
 Kowalski (I7tli July 1879, Trib. Civ. de la Seine), in which 
 the husband was by nationality a- Pole, the same inference — 
 viz., of an intention to submit the regulation of their rights 
 to French law by making France the home of the marriage 
 — ;was drawn from the facts of a French marriage to a French 
 wife, a French marriage-contract, and a residence in France, and 
 jurisdiction was accordingly exercised by the court to deter- 
 mine the husband's liability for ahment. Equity has estab- 
 lished in such cases a legal category of matrimonial domicile, 
 so much invoked in cases of divorce both in Scotland and 
 the Continent, to do justice between parties who might 
 otherwise find their rights indefinite, and the remedy for 
 infringement of them beyond their reach. Cf. swpra, p. 381 
 et seq. The doctrine of the English and Scotch law (cf. note 
 2) wiU not in practice be found to differ much from that adopted 
 in the text, siace the remedy will as a rule be sought in the 
 foruTn of the domicile, and the Scotch courts will not determine 
 any question of rights so as permanently to affect the marriage 
 relations unless they have jurisdiction ratione domicilii.'] 
 
 5. Peopeety of the Spouses. 
 
 (a.) Regulation of Rights in Propertt at the time of the 
 Marriage. 
 
 § 94. 
 
 It is a much disputed question, and one of the greatest 
 importance, looking to the vast differences between various 
 systems of law on the point, what law is to determine the 
 rights of one spouse over the property of the other ?^ Our 
 authorities have been specially concerned with this point, viz., 
 whether, in the absence of a marriage-contract, the com- 
 munity of goods established by the lex domicilii extends to 
 the real property which lies in another country, or whether 
 the lex rei sitce determines aU questions connected with such 
 property, without reference to the lex domicilii of the 
 spouses.^ 
 
 1 As to contracts, see infra, § 98. 
 
 2 All agree that the place of the celebration of the marriage does not decide. 
 See Savigny, § 379 ; Guthrie, p. 292 ; Story, §§ 191, 199 ; Meevius in Jus. 
 Lub. Prolog, qu. 4, §§ 19, 20. 
 
§ 94.] 389 
 
 The reason which is frequently assigned for the application 
 of the lex rei sitcB^ — ^viz., that the law which determines the 
 rights of married persons in regard to their property, speaks of 
 things only and not of persons — is not, as we have already 
 seen, decisive,* nor is the other reason which is assigned — viz., 
 that the authority of the lawgiver is confined to his own 
 territory.^ Lastly, we cannot appeal to the argument that it 
 is contrary to the principles of sovereignty that foreign 
 statutes should have any effect upon real property in another 
 country." If this were so, all questions of capacity to act, 
 or of obligations, would have to be settled by the law of the 
 place where the subject was situated, if that subject happened 
 to be a right to real property. This much, and this much 
 only, is true, that if, in accordance with the lex rei sitae, some 
 definite real right to such a subject cannot be constituted at all, 
 or must be constituted in a particular form, then obviously the 
 law of the domicile of the spouses will also pronounce that 
 no such right can exist, or can only exist if the particular 
 form prescribed shall be observed, as the case may be.''' But 
 this does not affect the question before us. 
 
 Those who adopt the opposite opinion allow the law of the 
 domicile of the spouses to decide all questions, partly because 
 the spouses by their marriage are held to enter into a tacit 
 contract,^ by which they agree that it is their purpose that the 
 law of their domicile shall determine generally questions that 
 arise as to their property ; partly because laws which regulate 
 property touch upon the status of the persons, and belong 
 therefore to statwta personalia;^ and lastly, partly for the 
 
 ^ The adherents of this theory apply the rule " Mobilia personam sequuntur" 
 universally, and, according to this rule, all moveables are by a fiction found 
 at the domicile of the spouses (Argentraeus, No. 31 ; Mass6, ii. No. 13 ; 
 Burge, i. p. 617 ; Wharton, i. p. 113). 
 
 * See supra, § 5. 
 
 ■^ Gain, Observat. ii. 124, No. 4. 
 
 " See Story's Citations, § 148. 
 
 ' This is no doubt the meaning of the 3rd Art. prop. 2, of the Code Civil. 
 Cf. Demangeat on Foelix, p. 214. 
 
 ' Molinsens in L. 1, C. de S. Trin. ; Cochin OEuvres, i. p. 703 ; Wachter, 
 ii. p. 47 ; Hert, iv. 45 ; J. Voet, de Statut, §§ 18-20 ; Abraham a Wesel, 
 de connub. bon societate. Tract i. No. 115-119 ; Danz, D. pr. K. i. § 53. 
 
 ° BouUenois, i. p. 737 ; Maurenbreoher, § 144, note 10. 
 
390 [§ 94. 
 
 reason that it is the aim of the law to regulate all questions 
 affecting the property of its subjects, and not questions as to 
 the property of married persons who may happen to have 
 property in its territory.^" Some authorities give the hus- 
 band, if the lex rei sitce does not recognise a community of 
 goods between the spouses,^^' ^^ an actio personalis, to enable 
 him to put his communio into force, although they refuse to 
 concede to him an immediate real right in real property 
 situated in another country. 
 
 Argentrseus long ago refuted the first of these grounds.^^ 
 At the bottom of the assumption of a tacit contract we find 
 the mistake which we have already noticed, by which the rules 
 of law that adjust these relations are held to be merely expres- 
 sions of what may be presumed to be the will of the parties." 
 
 ^^ Thol, § 80. This is partly, too, the assumption on which Sayigny bases 
 his argument (§ 379, Guthrie, p. 293), although he lays stress upon the 
 voluntary submission of the spouses and their probable intentions. See 
 Foelix, i. § 90, p. 207. But this author illogically makes the lex rei sitce the 
 rule in reference to the regime dotale (§ 60, p. 124). See Demangeat, pp. 213-14. 
 See, too, Demangeat on Foelix, i. p. 218, note A, according to whom all pro- 
 visions as to the property rights of married persons are subject to the Statut 
 Personnel as results of the nature of marriage. The same ground is taken to 
 justify a judgment of the Court of Cassation of the Rhine (Berlin, 24th June, 
 1827, Volkmar, p. 45). The following pronounce the lex domicilii to be 
 generally applicable : — Seuffert, Comm. i. p. 237 ; Walter, § 46 ; Eeyscher, 
 i. § 82 ; Bouhier, cap. 26, No. 3 ; Eichhorn, § 307 ; Mittermaier, § 350 ; 
 Goschen, i. p. 112 ; Holzschuher, i. p. 84 ; Wening Ingenheim, § 22 ; Giinther, 
 p. 731 ; Miihlenbruch, i. § 72 (with reference to L. 65, D. de jud. 51, which 
 deals, however, solely with the competency of the court, and not with the 
 application of the local law— Schaffner, p. 136) ; Puflfendorf, Obs. 1, Obs. 28, 
 § 6. Cf. Merlin, E6p. Communaut^ de bien, § 1, No. 3 ; Schaffner, as cited ; 
 Huber's view, § 19 and § 15, is not quite distinct. French practice is not 
 yet fixed (cf. judgments in Sirey, 16 Q. p. 209-11, and 30, i. p. 91). But 
 in modern times they seem rather to incline to the view by which the hx 
 domicilii rules universally (cf. Foelix, i. p. 210). [Cf. infra, p. 395, note.] 
 
 " Burgundus, i. 15, 16, 37 ; P. Voet, vi. 3, § 9 ; Eodenburg, ii. o. 5, § 9 ; 
 Ghristianseus, Decis. vol. ii. Decis. 57. 
 
 12 The former domicile of the wife does not of itself determine the question, 
 even although she does not leave it after celebration of the marriage. See 
 Judgments of the Court of Appeal at Berlin, 19th Feb. 1856, and 4th May, 
 1857 (Striethorst, 20, p. 182, and 24, p. 256). 
 
 13 No. 33. See Thol, § 44. 
 1* See su'pra, § 69. 
 
§ 94.J 391 
 
 If there were a tacit contract as to the property of the 
 spouses implied in every marriage, persons who undoubtedly 
 have the capacity of contracting marriage, but not of bind- 
 ing themselves by any special contracts as to their property, 
 could never come under these statutory "provisions ; and 
 against this tacit understanding, as against every other under- 
 standing which expresses itself in acts, there would be rights 
 of reduction and restriction. But neither of these results 
 is recognised. 
 
 The second ground, as we have already noted in our dis- 
 cussion of general principles, has no more application than 
 the argument used on the other side, that the laws here in 
 question principally deal with things. 
 
 On the contrary, the third ground is undoubtedly jtist in 
 itself. It does not, however, by any means require that the 
 lex domicilii shall be uniformly applied, but only upon the 
 assumption that the estate of the person can really be 
 regarded as an unuTn quid. If each separate asset con- 
 stitutes a separate estate, whose fate is quite separate from 
 the fate of the rest of the estate, it can scarcely be said 
 that the lex domicilii, in claiming to rule the rights of 
 the spouses in their property, intended to regulate these 
 rights in regard to assets which are situated in a foreign 
 country. But by the principles of German law, it is cer- 
 tainly not true that every asset constitutes a separate estate. 
 The whole sum of moveables is regarded as an unurn quid, 
 but the individual parcels of real property are each re- 
 garded as separate estates, and the succession to them may 
 be regulated by legal principles — such as those of feudal law 
 — quite different ftom the principles that regulate the succes- 
 sion in moveables. By older German law, and by modern 
 English law, which retains the same principle, ^^ the law of 
 married persons' property is a law dealing with the acquisi- 
 tion of rights in separate parcels of property, moveables 
 being always excepted, since they, in a proper legal view, 
 reflect the personality of the husband, and must therefore 
 be figured as situated at his domicile.^* By this legal con- 
 
 ^' See Beseler, ii. pp. 486-88. [Infra, p. 395, note.] 
 18 Mohilia personam, sequuntur ; see supra, §§ 59, 61. 
 
392 [§ 94. 
 
 ception, immoveables follow the lex rei sitce; moveables, the 
 lex domicilii; whereas, by Roman law, in which property forms 
 an universitas without any distinction between moveables 
 and immoveables, both kinds are subject to the l6x domicilii 
 alone. This is the explanation of the course of practice 
 adopted by the English common law, and also' of the circum- 
 stance that the older French authors, who specially deal with 
 the conflict of law on this subject, faU into two classes. The 
 first keeps in its view the coutumes, along with the Germanic 
 conception of property, and therefore asserts the universal 
 apphcation of the lex rei sitoe; the second is more closely 
 allied to Eoman law, and takes the lex domicilii as its rule.^'' 
 But it by no means follows, when we find a territorial 
 system of law distinguishing between moveables and im- 
 moveables in its provisions as to the property of married per- 
 sons, that the law of property is founded upon the Germanic 
 conception of estate. It may very well be that the origin 
 of the distinction or its retention is an anomaly which has 
 no justification but practical convenience. For instance, aU 
 the moveable goods which belonged to the spouses before 
 marriage fall under the conimunity, in contrast to the im- 
 moveable, because they can be easily collected under the 
 domestic roof of the married pair, and cannot, therefore, 
 easily be distinguished the one from the other. 
 
 The real touchstone is rather the theory of succession. ^^ 
 If the succession is held to be an universal succession,^^ 
 then the Eoman conception of the estate as one whole is 
 fundamental ; and this conception is no more impaired by 
 any special view which may be taken of all or any parcels 
 of immoveables, for the purpose of determining questions 
 
 ^' The practice of the Parliament of Rouen asserts the lex rei sites, that of 
 Paris, the lex domicilii as the rule. Argentrseus has immediately in view 
 the coutumes de Bretagne, and the feudal principles on which they rest ; 
 while Boullenois, as President of the Parliament of Dijon, follows the theory 
 of Eoman law. See Boullenois, i. p. 798; Bouhier, as cited; Demangeat on 
 Foelix, i. p. 211. 
 
 1' See the law of succession, § 107 et seq. 
 
 '^ But neither the Eoman nor the German law applies the principles of an 
 universal succession to the law of married persons' property. Savigny, 
 § 379 ; Guthrie, p. 293. 
 
§ 94.] 393 
 
 between spouses, tlian the Roman theory is by the special 
 provisions as to the fundus dotalis in contrast with the 
 moveables which the husband receives in dotem. And in 
 the same way, in French law, although a distinction between 
 moveables and immoveables is recognised for the purposes 
 of the communaut^, the theory which makes the lex domicilii 
 decide is approved, just as it is by the Prussian AUgemeines 
 Landrecht. 
 
 It is necessary, however, that both the lex domicilii and 
 the lex rei sitae should entertain this conception before it 
 can be practically appHed in any particular case to foreign 
 immoveables. If the former has not the notion of the 
 estate as a whole, it wiU make no rules for foreign real 
 property ; and if the lex rei sitoe, on the other hand, has it 
 not, it win treat the law of property of the spouses as 
 a real right in individual things, which must be subject 
 to the leoa rei sitce alone.^" It is therefore impossible to 
 give one answer to the question which wUl be generally 
 appKcable.^1 
 
 It cannot be objected to the determination of questions of 
 property between the spouses by reference to the lex rei sitce 
 
 ^ The fact that French law only applies the rules of the communauU in 
 the absence of any different stipulation between the spouses will explain the 
 apparently contradictory decision of the Parisian Court of Cassation of 30th 
 January, 1854, quoted by Demangeat on Fcelix, i. p. 216. We cannot con- 
 clude, therefore, that there is any community when an Englishman acquires 
 an estate in France, even although he has been naturalised ; for if it has once 
 been validly excluded, it will not be aflFected by change of domicile. See 
 infra, § 96 ; and Demangeat on Foelix, 1, pp. 213-14 and 208. 
 
 ^' The same principles regulate the provisions which many systems make 
 for the widow, differing from succession {mdualicium, dotalicium, douaire, 
 coutumier,. dower). Many authorities who make the lex domicilii govern 
 other questions, make the lex rei sitce the rule here. BouUenois, ii. pp. 57, 58 ; 
 Bnrgimdus, i. pp. 50, 51. (The latter, no doubt, makes an exception where 
 the law of the domicile covers all property ubicunque sitce.) Eodenburg, ii. 
 p. 2, c. 5, § 5 ; and J. Voet, 23, 4, § 27, pronounce for the lex domicilii, 
 but only in so far as the law of the domicile is not expressly limited to 
 native real estate. The result of this view coincides with our own. Cocceji, 
 De fund. vii. 19, and Burge, i. p. 635, pronounce for the general application 
 of the lex rei sitce; while Bouhier, chap. 25, No. 44, would have the lex 
 domicilii the general rule. [In Scotland terce and courtesy as rights in land 
 are regulated by the lex rei sitce; jus relictiB, as a right in moveables, by the 
 lex domicilii^ 
 
394 [§ 94. 
 
 in tlie circumstances, and to the extent indicated, that, on 
 the one hand, we shall defeat what probably is the intention 
 of parties, and thereby cause the greatest inconvenience ; 
 while, on the other hand, the husband, if he should have the 
 power of alienating landed property, or investing sums of 
 money in such property, will, by reason of the variety in the 
 land laws of different countries, have a dangerous power of 
 settling as he pleases what law is to regulate the property of 
 the spouses, and what rights each is to have in it. The first 
 argument rests upon a circle. Parties are not entitled to 
 hold that the lex domicilii is universally applicable if one 
 of the spouses possesses foreign estate, and it cannot be proved 
 that they proceeded upon this assumption ; at least, the oppo- 
 site may be just as easily assumed. The second argument is 
 much more a description of the effect of the rights which 
 the husband originally had in the subjects aHenated, than 
 of the consequences of our theory as to the conflict of laws. 
 If he cannot by the lex rei sitce alienate landed property, 
 nor change the investments of the funds without his wife's 
 consent, then this dangerous power is fully excluded. If the 
 appHcation of the lex rei sitae is sound, the whole matter 
 stands precisely as if within the territory of one and the same 
 system of law there were particular regulations as to the pro- 
 perty of spouses in particular kinds of estate, e.g. manorial 
 or peasant holdings. These would be treated in such a case as 
 separate estates. 
 
 Our view is confirmed by the fact that many authors^^ who 
 take the lex domicilii as the general rule, make an ex- 
 ception in the case where there is some prohibitive statute — 
 e.g. a statute whereby the community of goods does not 
 extend to property acquired by inheritance — in force. In the 
 cases contemplated by these authors, the result no doubt shows 
 that the lex rei sitae is to be preferred, but not because the 
 law that interferes is a prohibitive statute. For a statute 
 of that kind can have no other object than the interest of the 
 subjects of the State to which it belongs, so that it does not 
 affect strangers who do not possess property there ; an iastance 
 
 22 BouUer, cap. 26, No. 19 ; Burgundus, as cited ; BouUenois, pp. 753, 
 796-97. 
 
§ 94.J 395 
 
 is tlie Koman law, wHch forbids donations between spouses.^^ 
 The true reason lies in this, that the limitations which these 
 authors have in view have their origin in the older German 
 law, and have no further meaning than to ensure the rights 
 of the nearest heirs in the estate. But no one has ever 
 doubted that this is regulated by the lex rei sitcB.^^ 
 
 '■^ See infra, § 97. Waohter, ii. pp. 362, 198, roundly asserts the application 
 of the hx donvicilii, because any statute which regulates the property of 
 the spouses has regard to persons and not to things, and in doubt must 
 be held to take cognisance of none but its own subjects. 
 
 ^ A judgment of the Court of Cassation of Paris, 4th May, 1829 (Sirey, 
 XXX. 1, p. 191) affirming one of the Cour Eoyale at Eouen, declares the 329th 
 and 330th Articles of the Coutumes of Normandy, which only allow a certain 
 part of the conquSts of the wife to pass to the spouses, to be real statutes, 
 which are to be applied to foreign spouses who, by the law of their domicile, 
 live in complete community of goods. The reasons assigned for this, viz., 
 " Le statut est personnel, lorsgu'il rigle diredement et principakment la capaciU 
 ou I'incapaciU ginirale des personnes pour contrader — le statut est rid, lorsgu'il 
 a principalement et diredement les hiens powr objet," certainly do not warrant 
 the result. 
 
 [Writing in 1882, Bar says, on the subject of this paragraph: "It is now 
 unquestionably the prevailing opinion in Germany and Italy, and in Prance 
 it has recently come to be more and more accepted, that cases as to the 
 property of married persons, particularly as to the right of the husband over 
 the wife's property, depend on the law of the domicile (or the nationality), 
 without regard to the situs of real property included in it, or to the place of 
 the celebration of the marriage ; it has also been recognised in the Prussian 
 AUgem. Landr. ii. 1, §§ 350-51 ; and in Statute-Book of Saxony, § 14." 
 
 By the law of England land situated in England is not affected by any 
 other marriage law than that of England ; the law of the domicile at the date 
 of the marriage, i.e., of the husband's domicile, or of a domicile acquired by 
 him immediately thereafter, which at the date of the marriage he had it in 
 view to acquire, wiU regulate the rights of the spouses in moveable property. 
 This is also the law of Scotland (Fraser, 1323-24) ; and conversely, real estate 
 situated out of England or Scotland, as the case may be, is not subject 
 to any of the rules of English or Scottish law to any effect, and specially 
 with regard to the present topic, is not subject to be affected by the 
 rules of English or Scottish law as to the property or administration of 
 married persons' estate, or the succession of the survivor at the dissolution 
 of the marriage. 
 
 It has been held by the French courts that, in determining whether the pro- 
 visions made by a predeceasing husband in favour of his widow do or do not 
 exceed one-fourth of his whole estate, which is the limit set by French law to his 
 powers, it is incompetent to take into account real estate situated abroad 
 (Leroy de Chaumont, 21st May, 1879 ; Trib. Civ. de la Seine). As to the 
 effect of an English marriage-contract upon the succession of the spouses. 
 
396 [§ 95. 
 
 (8.) Capacity of the Wipe — Alienation of the Fundus Dotalis. 
 
 §95. 
 
 The lex domicilii is the only rule for determining whether 
 the wife is to be held capable of acting, and if so, to what 
 extent.^ 
 
 Care must be taken not to confuse this question with that 
 discussed in the preceding paragraph — viz., what rights one 
 of the spouses has over the estate of the other. The point of 
 distinction Ues in this, that in the case of incapacity on the 
 part of the wife, she cannot undertake any obligation at all 
 without the concurrence of her husband, whereas the effect 
 of her husband's rights over her estate is that she can- 
 not affect the estate so subjected to her husband's authority. 
 These two questions are frequently confused with each other^ 
 and this is the origin, in a great measure, of the disputes 
 which prevail on this subject.^ 
 
 Now by English law there is a true incapacity in a married 
 woman. An obligation undertaken by her without her 
 
 when that .succession opens in France (cf. the case of Noireterre, cited infra, 
 §96, p. 403).] 
 
 1 Argentrseus, No. 7 ; Eodenburg,ii. 1, § 3 ; Boullenois, p. 200 ; Burgundus, 
 ii. 7 ; Burge, i. p. 256 ; Ohassenseus in Consuet. Burgund. Ruhr. 4 tit. " Ves 
 droits et appartenances d, gens ma/rih " in connection with " contraux entre Us 
 vifs,'\^o. 18; SchafFner,p. 57 (judgment of the Court of Cassation of the Rhine, 
 at Berlin, 14th Dec. 1852); Seuffert, vii. pp. 166-67). Burge remarks : "There 
 is little inconvenience in requiring that a person who deals with a female 
 who from her sex may be a married person, and subject to certain disabilities, 
 should inquire, whether she be married, and what is the degree of disability 
 to which her coverture subjects her. If he does not by inquiry satisfy him- 
 self ... it will be the effect of his own neglect." See, too. Story, § 66 and 
 136 ; Renaud, i. § 42. [The law of Scotland will regulate such contracts by 
 the capacity of the married persons at the place of the contract. In America 
 it is a question of circumstances, Fraser, pp. 1317-18 ; see note, p. 202, as to 
 capacity of married women.] 
 
 2 We shall recur to this distinction again in dealing with the question as to 
 what consequences flow from a change of domicile subsequent to marriage. 
 See, too, the judgment of the Supreme Court of Appeal at Wiesbaden, 18th 
 May, 1858 (Seuffert, xii. p. 322), which laid down that the right of a native 
 subject to enter upon a transaction affecting the property of married persons 
 must be determined by the law of his own country, even although the trans- 
 action has been concluded abroad. 
 
95.] 397 
 
 husband's concurrence has no binding force against her, even 
 after dissolution of the marriage.^ 
 
 In the same way, by French law a married woman who 
 Hves with her husband in the statutory community of goods 
 is incapable of acting.* 
 
 These provisions fall to be apphed with reference to such 
 real property abroad as the wife may happen to possess. 
 
 The prohibition of the Eoman law against ahenation of the 
 dower estate is a particular case of partial incapacity. The 
 spouses are by this disabled from dealing with an asset of 
 their estate during their lives, except in certain cases.^ The 
 result is, that this prohibition, depending upon the lex rei 
 sitcB, does not apply to foreign spouses by the law of whose 
 domicile no such prohibition exists. The special protection 
 which the law by this provision proposes to give the spouses, 
 cannot be extended to foreigners, by the law of whose 
 domicile such protection appears to be unnecessary or even 
 mischievous. But, conversely, according to the usage recog- 
 nised all over the Continent of Europe,® transaction is null if 
 the lex domicilii pronounces it to be so,^ although there is no 
 logical justification of this. We find an analogy in the case 
 of a person declared to be major in terms of the common 
 law of Rome by means of a rescript of the sovereign. He, 
 too, cannot alienate landed estate,^ although he is free to dis- 
 pose of all other property. 
 
 On the other hand, the question whether property in a 
 
 3 Stephen, ii. p. 267; Burge, i. p. 203. 
 
 * Code Civil, art. 1427. 
 
 ^ Cf. supra, § 44. 
 
 ° English jurists are forced to recognise another exception in this case to 
 their general principle that the hx loci actus alone should rule, a principle to 
 which we have already noticed one exception in note 1. 
 
 ' Bouhier, chap. 27, No. 14, and Demangeat on Foelix, i. p. 214, answer the 
 question as we have answered it in the text ; Burge, ii. p. 870 ; Duplessis, 
 Consuet. CEuvres, ii. p. 259 ; G-and, No. 652 ; Foelix, i. § 10, p. 124, pro- 
 nounce in favour of the lex rei sitce. 
 
 ' If judicial permission is necessary for the alienation oiihs fundus dotalis, 
 the judex domicilii is competent. Cf. law of Hanover, 30th July, 1840 (G. S. i. 
 p. 35) § 1. "The alienation or impledgment of a dower estate is only to be 
 held good upon the ground of benefit thereby accruing to the wife, if the con- 
 tract is authorised by a judge who is personally competent." 
 
398 [§§95,96. 
 
 dower estate can be acquired by prescription depends upon 
 the lex rei sitae, and not upon tbe lex domicilii.^ 
 
 We 'bave ab-eady discussed the question by wbat law tbe 
 statutory rigbt of pledge of tbe wife in respect of ber dowry 
 is regulated (see supra, p. 251).^* 
 
 (y.) Change op Domicile by the Spouses after Maeeiage. 
 
 §96. 
 
 If tbe spouses cbange their domicile after marriage, tbey 
 do not tbereby, according to tbe view wbicb is now adopted 
 by tbe great majority of autbors, and sanctioned by tbe 
 weigbt of practice, alter at all tbeir rigbts of property ;^ not 
 
 ' See above Law of things and § 44, note 7. Care must be taken not to 
 confuse the prohibition of the Eoman law against alienation of the fundus 
 dotalis with the prohibitions attached by German law to the alienation of 
 particular parcels of estate on account of the rights of the next heirs. A 
 judgment of the Court of Cassation at Paris, 17th February, 1817 (Sirey, xvLL 
 1, p. 422), declared that the old Norman statute, which provided that a wife 
 siparSe de biens should not have the power of alienating a real dower estate 
 without her husband's leave and the advice of her nearest relatives, was a real 
 statute, and that accordingly the sale of such an estate, before the publication 
 of the Code, by a married woman resident in Paris, was invalid. Cf BouUe- 
 nois, i. p. 739-50, 798-99. 
 
 ^^ See, however, the judgments of the court at Montpellier, 15th January, 
 1823 (Sirey, xxiii. 2, p. 301), and of the Court of Cassation at Paris, 16th 
 January, 1824 (Sirey, xxv. 2, p. 482, note), which settle that where a mar- 
 riage has been contracted abroad by a Frenchman before a foreign authority, 
 it will not give rise to the statutory rights of pledge over the dower estate of 
 the wife, until the marriage has been published by being entered on the 
 register of civil status in France. 
 
 1 P. Voet, 9, 2, No. 7 ; Hert, iv. 48-9 ; Eodenburg, ii. p. 2, o. 4, § 3 ; J. 
 Voet, in Dig. 23, 2, § 87 ; Burgundus, ii. 15 ; Molinseus, in L. 1, 0. de S. 
 Trin. ; Hofaiker, Principia, § 143, ad Jin. j Seuffert, Comm. i. p. 238 ; Bou- 
 hier, c. 22, No. 21 ; Alderan Mascardus, Concl. 7, No. 62 ; Pfeiffer, Prakt. 
 Ausf. ii. p. 263; Hagemann, Prakt. Erort, 6, p. 142; Eeyscher, i. p. 82; 
 Harum in HaimerFs Magazine, viii. p. 398 ; Funk im Archiv. fiir Civilpraxis, 
 vol. 22, pp. 93-126 ; BouUenois, i. pp. 509 and 802 (where he expounds the 
 older French practice, and shows how it coincides with our theory) ; Wachter, 
 ii. p. 51 ; Holzschuher, i. p. 83; Schaffner, p. 137 ; Fcelix, i. p. 214, § 91, 
 and Demangeat in his note to Foelix, i. p. 216 ; Puchta, Lectures, § 113 ; 
 Puflfendorf, Observ. ii. obs. 121, § 2 ; Mittermaier, § 400 ; Gliick, Comm. xxv. 
 p. 269 ; Danz, i. § 53, p. 183 ; Beseler, ii. § 133. In accordance with this is 
 the more recent practice in Hannover (Grefe Hannoversrecht, Hannover, 1861, 
 
§ 96.] 899 
 
 that there is, as used to be thought, any tacit contract as to 
 these rights coincident with the celebration of the marriage, 
 but because, as Savigny properly remarks, on the one hand, 
 in so far as the law of the new domicile permits the law of 
 their property to be altered at the private caprice of the 
 parties, it can only be applied to the marriages of those per- 
 sons who already belonged to the State at the time of the 
 marriage ; and on the other hand, the law of the first domi- 
 cile must have intended to regulate permanently the patri- 
 monial relations of the spouses.^ It may be assumed that 
 these Jaws are to determine questions of property arising out of 
 these marriages, and not to vmsettle questions already deter- 
 mined by another law ; while, on the other hand, we must 
 concede at least the same enduring force to the statutory 
 provisions which take the place of a contract, as we should un- 
 doubtedly be obhged to concede to a contract.^ In the opposite 
 view, the relations of the spouses as regards their property 
 would be thrown into the greatest uncertainty, particularly as 
 regards the wife, since the husband has, to a certain extent, 
 
 ii. § 20), which is now sanctioned by statute and has the force of law in Han- 
 nover, and so, too, the express provisions of the Prussian A. L. E. ii. 1, § 350. 
 Judgment of the Supreme Court of Appeal at Munich, 3rd November, 1841 
 (Seuffert, i. p. 155-56), of the Supreme Court of Appeal at Wiesbaden in 1841 
 (Seuffert, x. p. 322), at Jena, 18th August, 1843 (SeufiFert, xiv. p. 161), of the 
 Provincial Court of Cassation and Revision in Rhenish Hesse, 1st June, 1826 
 (Archiv. 2, p. 289). 
 
 2 See, for instance, the ordinance of Lippe, 1786, § 32 (Kraut, § 199, 1) : — 
 " A change of the domicile of the spouses, if they betake themselves to a 
 foreign country where the community of goods is not known, cannot alter or 
 abrogate that community — and this is true whether (1) they should affect some- 
 thing of the kind by a special bargain ; or (2) that some special enactment of 
 the country of their new domicile should forbid that community of goods. 
 
 5 Gerber, D. Privatr. § 229 : " It is a necessary result of the relations of 
 the spouses in matters of property, that where we have a marriage recognised 
 by law we have not merely the possibility of the application of particular 
 rules of law, but also a positive and enduring shape given to all the relations 
 of the spouses in matters of property, from which a whole series of mutual 
 rights and obligations arise ; these legal relations resulting from a marriage 
 are not subject to the operation of the code of the country in any other sense 
 than every legal relation is, and in particular it does not follow that because 
 they were originally established by the law of the domicile that when the hus- 
 band shifts his domicile it is transformed into the shape prescribed by the 
 law of that new domicile." 
 
400 [§ 96. 
 
 the uncontrolled power of altering his wife's domicile and his 
 own. 
 
 If it is urged ia support of the proposal to determine the 
 law of the property of the spouses by the law of the new 
 domicile/ that on the one hand there is no such tacit con- 
 tract, and, on the other, if there is no special contract, then 
 the law of the property of married persons is to be gathered 
 from the law of the place ; and so when the spouses emigrate 
 to another country, where another law prevails, they must be 
 taken to submit themselves to a new system ; — the first state- 
 ment is, no doubt, correct in itself, but not fit to meet the 
 reasoning of Savigny just quoted ; the second is incorrect, 
 because there is an assumption which is not proved, and 
 which our previous reasoning shows to be wrong, to the effect 
 that the law of the new domicile will innovate upon rights of 
 property already established, and that the law of the former 
 domicUe did not intend to fix permanently what the relations 
 of the spouses should be as regards their property.^ 
 
 An intermediate theory proposes to subject all property 
 acquired after the change of domicile to the law of the new 
 domicile, and leaves the law of the former one to rule all 
 property acquired before that change.^ In support of this 
 there is cited the doctrine which we have already refuted, 
 that the permanent dependence of all questions of property 
 between the spouses upon the law of the first domicile can 
 only be justified by the assumption — an erroneous assumption 
 — of a tacit contract ; and then those who would make the 
 lex rei sitce the rule, adduce this consideration, that in the 
 eye of the law moveables are always situated at the actual 
 
 * Giinther, p. 371 ; Malblanc, Prine. Jur. Rom. § 65, ad fin.; Rioci, p. 
 597-98 ; Eichhom, § 307. 
 
 ^ A judgment of the Supreme Court of Appeal at Liibeck, on 30th Dec. 
 1859 (Seuffert, 14, pp. 162-63) is instructive : it does, no doubt, in itself 
 pronounce the theory attacked in the text to be sound, but proposes still to 
 investigate the question whether the law of the new domicile will really 
 regulate the relations of the spouses as regards their property. 
 
 « Huber, § 9 ; Hauss, pp. 31-2 ; Kierulff, § 5, p. 73 ; Burge, i. p. 622 ; 
 Story, § 178, 187. So, too, according to these authorities, the practice of the 
 common law of England and America, and the jurisprudence of Scotland. 
 [See infra, p. 403.] See, too, the judgment of the Supreme Court of Appeal 
 at Kiel, 26th Nov. 1845 (Seufifert, 7, p. 162). 
 
S 96.] 401 
 
 domicile of tlie party in right of them. But this second 
 consideration does not support the intermediate theory, but 
 rather the second theory, which does not except the property 
 ah-eady acquired by the spouses from the law of the new 
 domicile ; it is not, however, well founded, for the rule 
 " mobilia ossibus inhcerent" xaevely signifies that in certain 
 circumstances moveables, according to the laws of all civilised 
 peoples, constitute an universitas. 
 
 If, in the last place, it is contended, in opposition to tha 
 theory we have adopted, that parties contracting with mar- 
 ried persons are entitled to rely upon the legal conditions of 
 that relation as recognised at the seat of their present domi- 
 cile,* we cannot affirm this contention, unless every marriage 
 which is celebrated in that country necessarily involves the 
 statutory relations of that country as regards property, or, if 
 it is celebrated elsewhere, can only continue to subsist in 
 that country under these relations ; ^ or unless there is some 
 special publication required of any modification or exclusion 
 of the statutory legal relations between spouses ; and in 
 the latter case, too, the proposed rule would only affect the 
 claims of creditors against the spouses, and not the rights of 
 the spouses against each other.^ 
 
 If the husband, immediately upon the celebration of the 
 
 * BouUenois, i. p. 537 ; Eunde. Eheliclites Giiterrecht, § 166, 8, ad fin.y 
 Schaffner, p. 144. The bona Jides of the creditor will, according to a judgment 
 of the Supreme Court of Appeal at Wiesbaden, 26th April, 1825 (Nahmer, ii. 
 p. 474), open the door to the decision of the case by the lex domicilii, if that 
 is to his advantage. 
 
 * In this case the law of the new domicile will be applied (Wachter, ii. p.'55 ; 
 Savigny, § 379 ; Guthrie, pp. 296-97). See, too, the judgment of the Court at 
 Celle, cited in note 1, ad fin. 
 
 " Cf judgment of the Supreme Court at Berlin, 26th Oct. 1860 (Seuffert, 
 14, p. 340) : " When intimation is required as a necessity, the law of the ter- 
 ritory must be recognised to this effect, that so long as this intimation is not 
 given the spouses must be held, so far as their relation to others is con- 
 cerned, to be living in the ordinary community of goods. This territorial 
 law must also be applied to married persons coming from a foreign country." 
 It is also urged that the judge cannot be expected to know the law of the 
 former domicile. See, on the other hand, Schaffner, pp. 142-43. By the law of 
 Hamburg, contracts of marriage are of no force in questions with creditors, 
 except it should happen that the wife possesses some separate estate acquired 
 from a third party (Baumeister, Hamburg Privatrecht, ii. p. 95). 
 
 2 D 
 
402 [§ 96, Note O. 
 
 leaves his domicile, then it is the law of the 
 country to which he repairs then, or immediately thereafter, 
 that rules, and not the law of his former domicile ; for it is in 
 the new domicile that the marriage truly has its origin. But 
 a mere intention is not sufficient : that would only be true if 
 we should assume a tacit contract. If, then, the husband 
 fails to acquire the domicile he desires, then it is the earlier 
 domicile, or another that has really been acquired which 
 rules, even although he may have lived some part of his mar- 
 ried life in the place which he desired to make his domicile. 
 
 If the legal relations between the spouses do not take their 
 rise from the date of celebration of the marriage, but are 
 associated with some more remote event, such as the birth 
 of a child, it is the domicile which the spouses had at 
 the date of the marriage, not that which they had when this 
 event occurred, that rules. The marriage was constituted at 
 the former, not at the latter place ; and the place at which 
 the condition is purified can be of no more importance here 
 than in any conditional contract.'' 
 
 We must not confuse the invalidity of transactions entered 
 into by the wife without her husband's consent, which is a 
 consequence of the right which the husband has over his 
 wife's property, with the invalidity of any transaction which 
 depends upon the incapacity of the woman to act for herseE 
 The former are regulated by the law of the original domicile ; 
 but the woman's incapacity, and the statutory guardianship 
 exercised by her husband, must be settled by the law of their 
 •domicile at the time of the transaction.^ It is to the neglect 
 of this distinction that the origin of many of the mistaken 
 theories stated above may be traced.^ 
 
 Note O, o» § 96. 
 
 [Lord Fraser (Husband and Wife, p. 1S26) thus states 
 the question raised in the foregoing paragraph : " Suppose a 
 
 7 Sohaffner, p. 138. 
 
 8 So, too, a judgment of the Supreme Court at Berlin, 19th December, 
 1859 (Scuffert, 14, p. 6). 
 
 " Boullenois, ii. pp. 14, 15, 24, 25 ; Duplessis, CEuvres, ii. p. 158 ; Beseler, 
 ii. p. 383. Cf. Story, § 136 et seq. 
 
NoU O.] 403 
 
 husband not entitled jure inariti to carry off all his wife's 
 personal estate by the law of the matrimonial domicile, can 
 he, to whom the law gives the power of changing the domi- 
 cile at pleasure, do so to the effect of subjecting the wife's 
 property to a law by which it is assigned to him ? . . . Can 
 her husband change the domicile from England to Scotland, 
 and demand all the personal estate as belonging to him, in 
 virtue of the ^^ws mariti given him by the law of the new 
 domicile, and plead that the English statute " (limiting his 
 rights in certain kinds of personal estate) " was a local law 
 which had no extra-territorial force ? There is no decision 
 to this, effect, and the contrary is maintained by eminent 
 jurists, who are very decided on one point — that if such 
 change of domicile does enlarge the husband's powers over 
 the wife's property, this will apply only to property acquired 
 by her subsequent to the change, and will not divest her of 
 property which had been held by her in her own right under 
 the law of the matrimonial domicile." By the phrase " matri- 
 monial domicile" in this passage is meant the domicUe of 
 the husband at the time of the marriage, or the domicile 
 adopted by the spouses immediately after the date of the 
 marriage, and in their view when it was contracted. The 
 authorities quoted by his Lordship — viz., Westlake, p. 67 ; 
 1 Surge, 626 ; Savigny, § 396 ; Wharton, § 198 ; Story, 
 § 187 ; Bishop on the Law of Married Women, vol. ii. § 665, 
 and the American cases cited there — would probably be 
 sufficient to determine the decision of any case that may 
 occur in Scotland. In questions of succession, the law of the 
 domicile at the time when the succession opens will settle 
 English and Scotch cases (Hog v. Lashley, 1804, 1 Robertson 
 Sc. App. c. 4 ; Westlake, p. 69 ; Eraser, p. 1325). 
 
 It was determined by the Civil Tribunal of Albi (Noireterre v. 
 Griffiths and others, 2nd Nov. 1881) that when, on the death of 
 one of the spouses in France, the succession to her estate opened 
 in Erance, the law of France would interpret for itself an 
 antenuptial contract of marriage which had been executed in 
 the English form ; and that, the liferent enjoyment allowed by 
 the deed to the wife of her estate being inconsistent with the 
 existence of a title in trustees, that title must be held, as it 
 would be in French law, to be fictitious, and the succession 
 
404 [JSTote O, § 97. 
 
 to the estate determined on the footing that it had belonged 
 to the deceaser, and was independent of the provisions of the 
 marriage contract.] 
 
 (S.) Donations between the Spouses. 
 §97. 
 
 The prohibition of the Koman law against donations 
 between spouses is to be regarded as a true instance of 
 incapacity in a certain sphere, and must therefore be ruled 
 by the law of the place in which the spouses had their 
 domicile at the time of the donation.^ If such a prohibition 
 exists according to the lex rei sites it is not to be applied to 
 married persons domiciled in another country, for this reason, 
 that this prohibition exists for the purpose of maintaining the 
 moral integrity of the married state, and that can certainly 
 not be matter of concern to any Government other than that 
 to which the persons of the spouses belong.^ If, then, to take 
 an instance, a married couple domiciled in Vienna, where 
 donation is not prohibited, make one to the other a donation 
 of an immoveable estate,^ which lies in some country where 
 Roman law is observed, this donation is good, and conversely 
 it is null if the immoveable estate lies in Vienna, while the 
 domicile of the marriage is in Hannover, where Roman law 
 prevails. 
 
 The explanation of the difference in the theory of many of 
 the older authorities, to which, too, some of the more modern 
 writers have attached themselves, is that, as Argentrseus cor- 
 rectly says,* they confuse this prohibition of donations between 
 spouses, — a provision of the Roman law, — with the rights 
 
 1 Savigny, § 379 ; Guthrie, p. 297 ; Bouhier, chap. xii. No. 95 ; Deman- 
 geat on Foelix, i. p. 247. 
 
 2 Burgundus, i. 38 ; Barthol. in L. 1, 0. 6, S. Trin. No. 32 ; Bouhier, chap. 
 29, No. 37 ; Waohter, ii. p. 199 ; Holzschuher, i. p. 85 ; Unger, i. p. 93 ; 
 Walter, § 42 ; Demangeat in his note to Fcslix, i. p. 123, and the judgment 
 of the Conr Imperial de Paris, 6th Feb. 1856, cited there. 
 
 ■" By the 1246th article of the Austrian Code, donations between spouses 
 are permitted. 
 
 * Nos. 8, 14, 15 ; Burgundus, as cited ; Boullenois, i. pp. 105-06 ; Abraham 
 a Wesel, ad nit. Ultraj. No. 14 e« seq. 
 
§ 97.] 405 
 
 of the next heirs, which are founded on principles of Ger- 
 manic law ; the protection given to these rights is often 
 described in particular systems of law as a prohibition of 
 donations. But the touchstone of the distinction is this, 
 that the donation of the Roman law, if it is not recalled, is 
 confirmed by the death of the giver,^ and is quite admissible 
 before marriage, while the prohibition of the German law 
 makes any donation, even mortis causa, invalid, and invalid 
 even if made before celebration of the marriage, e.g. between 
 persons betrothed. The views of these older writers are, 
 therefore, in relation to the statutes which were before them, 
 quite correct in their results,® while the theory by which 
 all possible benefactions' from the one , spouse to the other 
 are subjected to the lex domicilii, leaves out of account 
 the prohibitions of Germanic law, which are entirely 
 different. 
 
 The question, too, as to whether spouses can alter existing 
 contracts of marriage after they are married, or can substi- 
 tute contract for common law provisions to regulate their 
 property,® is to be settled by the law of the domicile of the 
 spouses at the time of the alteration in question. We have 
 in this case to deal with a true incapacity to act,^ just as in 
 
 5 L. 32, §§ 3, 4 ; L. 27, D. 24, 1. 
 
 ^ There are in favour of the lex rei sites : P. Voet, iv. 2, § 2 ; J. Voet in 
 Dig. 24, 1, § 19 (J. Voet for this reason, that the prohibition simply aifects 
 things without touching upon the personal qualities of the spouses) ; Oocceji, 
 De fund. vii. 19 ; Christianfeus, Comm. ad leg. nmnicip. Mechlin, tit. xvii. 
 act. 3, No. 12 ; Ricci, Bntw. pp. 547-48 ; Burge, i. p. 639, ii. 846 ; Foelix, i. 
 § 60, p. 123 ; Eocco, pp. 14-27 (according to the citation in Foelix, ad fin.). 
 For the practice of the French Parliament, which had in view that prohibition 
 of Grerman law, and pronounced it to be real, see Bouhier, chap, xxvii. No. 32, 
 45-47 ; Bonllenois, i. p. 489-91, ii. p. 97 et seq. 104-05, 127, 154-55 ; the pro- 
 vision of the Code Civil, art. 1091, proceeds upon the view of the Roman 
 law. 
 
 ^ So, too, the modern German authorities. See Savigny, as cited. 
 
 * Demangeat, as cited ; J. Voet, 23, 2, § 37 ; Bouhier, chap. xxii. No. 95, 
 Of. Code Civil, art. 1394 : " Toutes conventions matrimoniales seront ridighs 
 avant le mariagepar ade devant notaires." 1395 : " Elles nepeuvent recevoir 
 aucun changement aprhs la ciUbration du mariage." Foelix is of a different 
 opinion ; see, too, report of a judgment of the Cour d'Appel de Limoges, 8th 
 Aug. 1809 ; Sirey, ix. 2, p. 386. 
 
 ° Cf. what was said {supra, § 44) as to incapacity to act. 
 
406 [% 97, 98. 
 
 the case of the prohibitions against alienating the fundus 
 dotalis}" 
 
 (e.) CONTEACTS AFFECTINa THE PROPERTY OF THE SpOUSES. 
 
 § 98. 
 
 It is the prevailing opinion that the import of the marriage 
 contract {'pactuw. nuptiale), which determines the rights of 
 property between the spouses, should be settled by the law 
 of the domicile of the husband at the celebration of the 
 marriage.^ In so far as this is an expression of an opinion 
 that the place where the contract was concluded does not 
 regulate its interpretation by virtue of the lex loci actus,^ we 
 must undoubtedly agree with it, since, in the case of a con- 
 tract of marriage, bona fides does not require the parties to 
 subject themselves to the lex loci actus. (Cf. supra, pp. 
 268-70.) The same may be said of the obligation of the 
 husband to repay the dos which he receives. 
 
 The independent obligations of third persons,^ however, 
 and the obligations undertaken by the future wife before her 
 marriage, can only be determined by the law of their respec- 
 tive domiciles ; in the case of the wife, because it is only 
 after celebration of the marriage that the wife follows her 
 
 *" Bouhier, chap. xx. No. 150. 
 
 ^ BartholomsBus de Salic, in leg. 1, C. de S. Trin. No. 5. Jason Mayerus in 
 leg. 1. 0. 'de. S. Trin. No. 24 ; Molinseus in leg. 1. C. de S. Trin. ; 
 Duplessis, Consult. 17 ; (Euvres, ii. p. 93 et. seq. ; P. Voet, 9, 2, No. 5 ; 
 Huber, § 10 ; Hert, iv. 39 ; Argentrjeus, No. 31, 45 ; Rodenburg, ii. p. 2, 
 0. 4, § 1 ; J. Voet, 23, 4, § 29 ; Cooceji, Defund. vii. 12 ; Abraham a 
 Wesel, de Oomm. bon. Soc. i., No. 100 ; Mass6, No. 161, p. 224 ; Boullenois, 
 i., p. 637 et. seq. ; Wachter, ii. p. 47. Cf. L. 65, D. de judioiis. 
 
 " Hanimel, Reps. vol. vii. obs. 409, No. 12 ; Gand, No. 648 et. seq., favour 
 the lex loci actus. 
 
 3 Cf. Alderan Mascardas, Concl. 7, No. 57, 65-6. E.g. according to the 
 1547th article of tlie Code Civil, any one who gives a dos is by common 
 Roman law bound only to make it good in case of eviction under certain cir- 
 cumstances (L. 1. C. de jure dot, 5, 12 ; Arndt's Pandects, § 403). A native 
 of the town of Hanover, who promises a dos to a Frenchman or an inhabitant 
 of the Prussian Rhine Province, is only bound to warrant against taxes on the 
 conditions of the Roman law. 
 
S 98.] 407 
 
 husband ; before tbis, tbe position of husband and wife as 
 contracting parties is equal* 
 
 Marriage contracts are, upon the whole, to be dealt with 
 like other obligatory contracts.^ From this it follows that the 
 interpretation of doubtful expressions must, as a general rule, 
 be taken in the sense which the law of the place of the 
 execution of the contract attaches to them.^ If the lex rei 
 sitce requires a special form to constitute a real right which 
 it is undertaken to grant in a marriage contract — e.g., the 
 registration in a pubhc register — the right in question can 
 only be acquired by observing this form, although a personal 
 action for the right so promised may be brought upon the 
 contract directly." 
 
 Some doubt is created by supposing a case where the hus- 
 band immediately after the celebration of the marriage changes 
 his domicile,* and settles, we shall suppose, at what was the 
 domicile of his wife. The law of the new domicile must rule, 
 although in the general case it is the actual domicile, and 
 not one which is yet to be acquired, which must decide ; we 
 justify the exception by the consideration that the contract 
 has for its subject a permanent relation which will continue 
 to subsist in every sense in the new domicile, and that the 
 law of any country as to marriage contracts cannot be 
 applied to marriages which are not to be carried out 
 there at all ; this holds in cases where the intention of taking 
 
 * Gand, No. 671. 
 
 * See above, §§ 66, 81. In exceptional cases, then, the lex rei sitm may be 
 applied, but only if tbe contract makes special provisions for particukr 
 parcels of real property. 
 
 " For instance, the expressions "heirs of the body," "issue,'' used in an 
 English contract running in the English language. Cf. Story, §§ 276, 113. 
 The exceptio non nume.ratm dotis must, as a rule, be governed by the law of 
 the place where the discharge is granted. See above, § 77. 
 
 7 Argentrseus, Nos. 38, 39 ; Burge, i. p 368 ; Story, § 184. There is no 
 doubt that a community of goods depending on contract will include foreign 
 real property (see Story, § 184 ; Eodenburg, iii., p. 1, c. 4, § 5 ; BouUenois, 
 i. pp. 794, 795), except in cases where the real right sought to be conferred is 
 declared by tbe lexrei sitce to be inadmissible {e.g.. Dominium pro diviso in an 
 estate which the lawsays shall not be divided), or the disposition itself in the con- 
 tract contradicts this, and proposes to treat the subject in question as a separate 
 estate. (The usual expression, "prohibitive statute," is not apt, see supra, § 33.) 
 
 8 Of. Pothier de la commun ant^, No. 15, 16. 
 
408 [§§ 98, 99 
 
 up the new domicile was announced at the time of the 
 execution of the marriage contract,* and where there can be, 
 in the circumstances, no inference of any intention to come 
 under the provisions of the law of the former domicile.'^'' 
 
 ()j.) Dissolution of the Marriage. — Second Marriage. — 
 Succession of the Spouses. 
 
 §99. 
 
 Except in so far as the lex rei sites prevails,^ the law of 
 the first domicile of the marriage wiU settle what rights the 
 surviving spouse has in the property of the deceased or in 
 the goods falling under the communio after the death of the 
 predecessor ; provided, that is to say, that they are the immediate 
 results of the law applicable to the property of the spouses 
 during the subsistence of the marriage f if, for instance, 
 where there has been a communio^ bonorum, the property 
 hitherto held in common falls in whole or in part to the sur- 
 viving husband, or the wife retains the management and life- 
 rent enjoyment of all the property of the spouses after 
 her husband's death.* Both of these are results of the 
 disappearance of one partner in the society that existed, in 
 the latter case of the partner who had the whole right of 
 
 ° To appeal to the law of the new domicile without previously announcing 
 the purpose of acquiring it, is inconsistent with bona fides. The view that 
 the new domicile must always decide puts the rights of the wife entirely at 
 the mercy of the husband's caprice. See Duplessis as cited, p. 96. 
 
 ^'' B.g., where the spouses propose to emigrate to a country foreign to both 
 of them, with whose law they are unacquainted. It is different if the 
 husband goes to the place where the wife is already domiciled. [Cf case of 
 Noireterre cited supra, § 96, p. 403.] 
 
 1 See, for instance, Stephen, ii. p. 403, on the Courtesy of England. [See 
 ante, p. 393.] 
 
 2 Chopin, ad. leg. Andegav, iii. 2, No. 16 ; Bodenburg, iv. p. 2, c. 2, 
 § 8 ; Burgundus, ii. 13, 14 ; Savigny, § 379 ; Guthrie, p. 298 ; Beseler, ii. 
 p. 385 ; cf. Puchta Lectures, § 113. 
 
 3 Ordinance of Lippe, 1786, § 15, cf §§ 8, 9, 6, 7 ; Kraut, § 200, No. 3, 
 201, No. 1, 202, No. 6 ; Hamburger Stadtrecht, iii. 3, 8, cf. ii. § 1 ; Kraut, 
 § 202, No. 15, 201, No. 1,3. 
 
 4 Nurnberg Reform, Tit. 33, Geo. 5 (Kraut, § 212, No. 14) ; Frankfurter 
 Eef. V. 4, § 3 (Kraut, § 205, No. 1). 
 
§ 99.] 409 
 
 management* Ordinary cases of succession are determined, 
 when the lex rei sitce does not assert itself, by the law of the 
 last domicile acquired by the deceased.^ 
 
 Since divorce and its consequences can only be decreed by 
 the court of the last domicile of the parties, the consequences 
 of a dissolution of marriage, in so far as they are penal, can 
 only be determined by the same law. That is, for instance, 
 true of the purely arbitrary punishments of the Eoman law, 
 which have no necessary connection with the Roman law of 
 dowry. '^ For other purposes the law which regulates the 
 relations of the spouses in other matters of property is 
 decisive. 
 
 The effect of a second marriage in the same way, in so far 
 as the lex rei sitce does not interfere and assert its claim, or 
 the question does not become one as to property inherited from 
 the predeceasing spouse, is to be ruled by the law of the original 
 domicile of that marriage ; but in so far as the law gives the chil- 
 dren of the first marriage the right to require payment or security 
 for payment of what the surviving spouse inherited from the 
 predecessor, all questions must be settled by the law under 
 which the children acquired these rights ; in this way, the 
 question as to whether a dos or donatio f roister nwptias of the 
 Roman law falls to the children will be settled by the law of 
 the original domicile of the first marriage ; but on the other 
 hand, the question as to whether the property passing by 
 inheritance from the deceased spouse to the parens hinvhus is 
 to be refunded on his or her marriage, must be settled by 
 
 '^ Many systems of law provide that the wife cannot renounce the com- 
 munity of goods and relieve herself of the debts that have attached thereto 
 during the subsistence of the marriage, except by fulfilling certain conditions. 
 These conditions, unless they are a mere form for declaring intention, in 
 which case the rule locus regit actum is applicable, must be fulfilled in con- 
 formity with the law which decides generally as to the communio bonorum. 
 (E.g., the wife must give up an inventory according to the law of the fijst 
 domicile). Of. Bouhier, chap. 28, No. 67, 76. 
 
 * Cf. for instance a Statute of Hannover in 1303 (Leonhard, Statutes and 
 Customs of the City of Hannover, p. 38 ; Kraut, § 250, No. 15), or the "quart" 
 of the needy widow provided by Eoman law. [Cf. ante, p. 403.] 
 
 ' See Arndt's Pandects, § 416. The opposite is assumed in a judgment of 
 the Supreme Court at Berlin, 31st May, 1841 (Decisions, 10, p. 181) ; cf., too, 
 judgment of the same Court reported in note 8. 
 
410 [§ 99. 
 
 the law of the last domicile of the parens prcBdefunctus.^ 
 For although it is true that the children of the first marriage 
 do not claim the goods that have fallen to the parens 
 hinuhus on the footing of intestacy,^ it is also true that this 
 parens hinuhus has only been allowed to acquire these on the 
 understanding that he shall not marry again, and again the 
 obvious end of all such provisions — viz., to protect the 
 children of the first marriage against the new spouse and the 
 children, if there shall be any, of the second marriage^" — 
 demands that the law of the domicile afterwards acquired by 
 the parens hinuhus shall be excluded, to the end that the 
 rights of the children shall not be left to depend entirely upon 
 the pleasure of that parent. Whether the second spouse can 
 take anything by succession is, on the other hand, dependent 
 upon the law which governs the succession to the estate of 
 the parens hinuhus, and therefore in certain circumstances 
 upon the lex rei sitce}^ 
 
 ' Or by the lex rei sitm, if this is the law that rules the intestate succession 
 of the predeceasing spouse. 
 
 ^ A judgment of the Supreme Court at Berlin, 3rd May, 1853 (Decisions, 
 25, p. 373), makes the law of the place where the second marriage took 
 place decisive ; for the penalties upon a second marriage do not depend upon 
 general principles of law, but upon considerations of morality, expediency, or 
 convenience. No doubt there is much to be said for the view which regards it as 
 a case of intestacy resting upon a tacit assumption as to what the predeceasor 
 would have wished, and consequently a resolutive condition by virtue of 
 which the advantages which the survivor has enjoyed are lost by entering into 
 a second marriage. At variance with this, however, is L. 5, § 1, 0. de sec. 
 nupt., 5, 9, which provides that children shall have a claim upon the lucra 
 nuptialia, if they have not succeeded to the estate of the parens prwdefunctus, 
 and shall lose the right if they are ungrateful to the parens hinuhus s see also 
 No. 22, c. 1, and c. 46, whereby Justinian's law is not to apply to persons 
 married before the date of the law. This judgment was pronounced upon a 
 claim by children of a first marriage to property which the mater hinuha had 
 inherited from her first husband. Justinian's provisions are so arbitrary that 
 no argument can be drawn from the transitory provisions in No. 22, c. 1, and 
 c. 46. 
 
 i" Cf. SeufFert, Comment. 1. p. 243. 
 
 11 Abraham a Wesel, ad No. const. Ultraj. art. 10, § 138 ; J. Voct, in Dig, 
 23, 2, § 136 ; Boullenois, i. pp. 806-9 ; and Bouhier, chap. 34, No. 41, declare 
 in favour of the lex rei sitm. 
 
 [The French courts have held that an English marriage-contract must be 
 read according to the rules of French law, quoad its testamentary provisionsj 
 
^99,100.] 411 
 
 The law of the domicile of the new spouse must decide 
 exclusively as to the rights which children have in his 
 or her property. ^^ The Umitations imposed in cases of 
 intestacy, and upon the dispositive power of a testator, 
 — whereby, for instance, one spouse cannot, where there are 
 children, give by his last will more than a certain proportion 
 to the other — are, as a rule, to be determined by the law 
 which governs the succession in question.^' In this way we 
 can account for the fact that the older writers, who touch 
 this question, and have, as a rule, the purely German insti- 
 tution of the rights of the next heirs in view, apply the lex 
 rei sUcb}* 
 
 B. Betrothal. 
 
 § 100. 
 
 It results, from the same reasons which are cited to sup- 
 port the doctrine that questions as regards the marriage are 
 to be settled by the law of the husband's domicile, that 
 questions as to betrothal — by which the wife is not yet 
 subjected to the law of the husband's domicile, and in 
 
 if the succession opens in France (Noireterre, ui supra, § 96, p. 403) ; and that, 
 in order to ascertain whether a husband has, in settling provisions on his 
 wife, exceeded the one-fourth part of his estate, which is the limit of this 
 provision by French law, no account can be taken of real estate abroad 
 (Leroy de Chaumont, ut supra, § 94, p. 395).] 
 
 '^ For instance, by the law of Hamburg, children of the first marriage have 
 in their step-parent a guardian who is charged by law with their aliment and 
 upbringing. Baumeister, Hamburg, Privatr. ii. p. 144. This is not the case 
 according to the common law of Eome. 
 
 13 Boullenois, i. pp. 564-9 ; Savigny, § 379 ; Guthrie, p. 298. 
 
 1* Argentrseus, No. 8 (this writer correctly notes that foreign real estate is 
 not computed in reckoning the Urtia pars which the Contumes of Bretagne 
 allow one spouse to give to the other) ; Eodenburg, ii. c. 5, § 1 ; Hert. iv. 
 43 ; Ziegler, Dicast. Concl. 15, No. 21 ; J. Voet, in Dig. 23, 2, § 85 ; Moli- 
 n^us, ad Leg. i. 0. de S. Trin ; Stockmans, Dec. 25, No. 10 ; Cochin, CEiivres, 
 v. p. 80 ; Petr. Peckins, de Testament Conjug. ii. c. 28,. No. 5 ; Hofseker, 
 de elf. § 28 ; Jason Maynus, in L. i. C. de.S. Trin. No. 10, have the Roman 
 law of succession in view, and pronounce generally in favour of the lex 
 domicilii. 
 
412 [§ 100. 
 
 which both parties meet with equal rights — must be deter- 
 mined by the law of the domicile of both parties.^ 
 
 The rule, "locus regit actum," is only applicable to the form 
 of the betrothal ; and it is obvious that a judge must dismiss 
 an action proceeding upon a betrothal which the law to 
 which he is subject pronounces to be immoral.^ But it is 
 not generally true that a betrothal is ruled by the law of 
 the place where action is brought.^ This is a result of the 
 coercitive character which laws applicable to these questions 
 possess. The rule, "locus regit actum," cannot but be 
 applied to cases of betrothal, unless the utmost violence is 
 to be done to good faith and honour.* 
 
 ' In the case of a true conflict of law, the decision must be in favour of the 
 defender — e.g., a betrothal is invalid by the law of the bridegroom's domicile, 
 but valid by that of the bride ; an action brought by either of them upon 
 the betrothal must be dismissed. See Duplessis, Consult. 20 (CEuvres, ii. 
 p. 115). Of. judgment of the Supreme Court at Stuttgart, 28th June, 
 1853 (Seuffert, 6, p. 430): — "By the provisions of the rules of the 
 Matrimonial Court of Wiirtemberg, a valid betrothal can only be an- 
 nulled by the sentence of the Matrimonial Court. This provision is a 
 law of a positively coeroitive character, resting upon grounds of morality ; 
 and a defender who, as a subject of Wiirtemberg, is subject to its laws, 
 cannot withdraw herself from their operation by entering into the contract 
 of betrothal with a foreigner in a foreign country, although she is to carry 
 it out there." 
 
 2 E.g., by art. 45 of the General Code of Austria. 
 
 3 Unger, p. 192. 
 
 ^ A judgment of the Supreme Court of Celle, 3rd February, 1846 (Seuifert, 
 6, p. 161), proceeds upon the opposite view. (The ordinance as to be- 
 trothals in the Hannoverian dukedom of Calenberg, of 5th January, 1733, 
 provides that it shall be essential, before entering on a betrothal, to obtain 
 the consent of the parents, grand-parents, or curators on both sides, and that 
 the betrothal shall be contracted in the presence of two persons of credit, and 
 of the clergyman of the place when the betrothal takes place in the coimtry.) The 
 judgment quoted lays down that the legality of a betrothal between persons 
 settled in the dukedom of Calenberg is be determined by that ordinance, 
 even in cases where it is entered into in a foreign country, or the marriage is 
 to subsist in a foreign country. See, on the other hand, a judgment of the 
 Supreme Court at Wolfenbiittel, of 8th March, 1858 (Zeitschrift fur Eechts- 
 pflege im Herzogth, Brauschweig, 1859, No. 2, p. 28, which applies the rule, 
 " locus regit activm," to a contract of betrothal concluded abroad between a 
 native of Brunswick and a foreign woman, although, by the law of Brunswick, 
 there are special forms of betrothal appointed which had not been observed 
 in the case in question, forms which cannot be omitted without rendering 
 
^100,101,i\^ofeP.] 413 
 
 It is only the courts of tlie State to wMcli the defender 
 belongs that are competent to decide questions as to be- 
 trothals.^ This is a consequence of the fact, if we are to 
 judge of betrothals by the analogy of other obligatory con- 
 tracts, that we are here concerned with a contract which 
 proposes to establish a permanent personal relation, and in 
 which, therefore, except as regards the form, the applica- 
 tion of the lex loci actus is not required." 
 
 G. Relations of Parents and Children. 
 
 § 101. 
 
 The purely personal relations between parents and lawful 
 children are to be ruled by the lex domicilii of the parties, 
 in the same way as the personal relations of the spouses, and 
 under the same limitation — that no one can in any country 
 claim rights which are there held to be immoral or indecent.^' ^ 
 
 N'ote P, on § 101. 
 
 [In England the extent of the authority of a foreign 
 parent over his child is the same as that of an English 
 
 the parties liable to punishment. The judgment of the inferior court at 
 Wolfenbuttel had held the law of Brunswick to be an enactment of a 
 positive and coercitive character, which followed subjects of that State into 
 foreign countries as personal statutes. 
 
 * See infra, § 185. 
 
 * To a different effect a judgment of the Supreme Court of Appeal at Celle, 
 4th May, 1852, which grounded its jurisdiction solely upon the fact that the 
 betrothal took place within the territory of the court. The court of first 
 instance, the Consistorium at Hanover, had declared itself incompetent. 
 
 ^ E.g., the right of parents to inflict punishment. Wachter, ii. p. 188. 
 
 2 Aigentrseus, No. 7 ; Phillipps, § 24, p. 189. The actual domicile, and 
 not that at the time of the birth of the child, determines the religious up- 
 bringing of the children ; but permanent provisions of the law of a new 
 domicile must, in cases of doubt, be observed in the new domicile as well, 
 although the law of that new domicile may declare contracts as to the religion 
 in which the children are to be brought up null. This is undoubtedly the 
 case on the analogy of the temporary provisions of the ordinance of 31st July, 
 1826 (Gr. S. T. p. 174), § 10. As to the laws on this subject in different 
 States, see Foelix, ii. p. 504 ; linger, p. 195. See Savigny, § 380 ; Guthrie, 
 p. 301. The relations of master and servant follow the principles of the law 
 of obligations. 
 
414 [Jf/ote P, § 102. 
 
 parent (Westlake, p. 47). Boyle, L. J. C, in Edmonstone v. 
 Edmonstone, 1st June, 1816, Fac. Coll. is of opinion that 
 Scots law is the same. His Lordship refuses to admit that 
 persoiis coming into the territory of a foreign State can 
 insist on having effect given to the peculiarities of their 
 own law. Lord Eraser, again, is of opinion (Parent and Child, 
 p. 590) that the doctrine of the text is the law of Scotland. 
 
 On the other hand, it has been held by the French courts 
 that they will, in the interests of morality, accord to a 
 foreigner who is merely resident in France the powers 
 conferred by the patria protestas upon Frenchmen ; and 
 although without the authorisation of Government he does 
 not enjoy civil rights, he will yet be entitled to appeal to 
 the courts to ordain a child of nineteen years of age to 
 return to him (Trib. Civ. de la Seine, 3rd February, 1872), 
 This decision seems to be rather in the direction of the 
 English principle than in that laid down in the text and 
 adopted by Lord Fraser, for it does not appear that in this 
 case the father would by the law of his own country have 
 had any such rights. The distinction between the notion of 
 domicile with us and of nationality in French law as con- 
 ferring a right of access to legal remedies, must, however, 
 be kept in view. The father's residence may have had all 
 the permanency of what we call domicile.] 
 
 Z>. Paeental Authokitt. 
 
 I. Constitution of this Authoeity by Birth 
 OE Legitimation. 
 
 § 102. 
 
 The law of the place in which the father of a child had 
 his domicile at the time of the child's birth must decide all 
 questions as to whether the child was born in wedlock, and 
 therefore became subject to his father's authority.^ The 
 place of the marriage particularly may be set out of account. 
 
 The same law will determine the effect of the special pre- 
 
 1 Bouhier, chap. 24, No. 122 ; Gunther, p. 732 ; Walter, § 46 ; Gand, 
 No. 430; Savigny, § 380 ; Guthrie, p. 301 ; Unger, p. 195 ; Burge, i. p. 89 ; 
 Foelix, i. § 33, p. 82. 
 
§ 102.] 415 
 
 sumptions with regard to paternity : these are not rules for 
 convincing the judge, which would be subject to the lex fori,^ 
 but substantial rights of the child.^ We shall give our 
 reasons for this view in discussing the law of process ; at 
 present we need only point out how dangerous it would be 
 if the child were prevented from founding on the presump- 
 tions that established his legitimacy at the time of his birth, 
 or if different judgments as to his legitimacy could be given 
 in different countries. 
 
 If a particular form is necessary for the recognition of a 
 bastard child, the rule " locus regit actum " is to be applied, 
 in so far as the intention of recognising the child is concerned, 
 an intention which may certainly be open to doubt in some 
 circumstances with regard to an act which in its substance 
 has reference to the law of the domicile of the person making 
 recognition.* 
 
 Legitimation of bastards, either by subsequent marriage 
 or by an Act of the Government (RescriptuTn principis), is 
 nothing but a legal equalisation of certain illegitimate with 
 legitimate children. The law which rules the rights of 
 legitimate children must therefore regulate the legitimation 
 of bastards ; and as the former are subject to the law of the 
 actual domicile of the father, the latter must be determined^ 
 also by the law of the domicile of the father at the date 
 when the fact said to infer legitimation took place.® 
 
 ^ Burge, i. p. 88, is of another mind. 
 
 ^ See infra, § 123, as to the presumptions which regulate particular legal 
 relations. Bouhier and Foelix take the view of the text. Even Burge 
 recognises that the so-CB.lled pr(Esum,ptiones juris et de jure, such as the 314th 
 article of the Code Civil establishes in favour of legitimacy, against which no 
 counter-proof, however strong it may be, is admissible, are not mere regu- 
 lations for the persuasion of the judge. 
 
 * Gand, No. 436. A child begotten and bom in France of foreign parents 
 can use his French acte de naissance to prove his legitimacy, but may also 
 have recourse to the means of proof recognised in his own country. Fcelbc 
 as cited, and § 73 Demangeat. 
 
 ^ It is of no moment in what place the subsequent marriage of the parents 
 took place. See "Wheaton, § 93, p. 123, and the authorities cited infra. 
 
 ® If the child has acquired a special domicile or nationality, legitimation 
 cannot take place against his will (or that of his guardian) unless by the law 
 of his special domicile he is obliged to submit to it. Gand, No. 446. It is 
 different with regard to the mother's rights ; in this case, since proof of the 
 
416 [§ 102. 
 
 Some authorities have laid down that the time of the 
 birth shall alone rule such questions, because by its birth 
 the child acquires'' the character which is to determine 
 whether it can be legitimated, and if so, in what way ; or, as 
 has been well said, because by the birth of the child there 
 is established a legal relation between it and its father 
 which must be governed alone by the law under which it 
 originated.^ But although the birth of a bastard may lay 
 certain obligations upon him who has had connection with 
 the mother before the birth, and to a certain extent therefore 
 a -legal relation is established by the birth between the child 
 and the putative father ; yet the very meaning of an ille- 
 gitimate birth is that a family relation, which is all we are 
 now concerned with, does certainly not arise between them. 
 Nothing can be inferred from the purely arbitrary expression 
 " Capacity or incapacity of the child to be legitimated ; " it 
 might as reasonably be maintained that if the law of the 
 place where the child was born forbade marriages between 
 cousins, and thus pronounced a child incapable of such a 
 marriage, this child could not, in consequence of his original 
 incapacity, contract a marriage in that degree after he had 
 acquired a new domicile, the law of which was ignorant of the 
 prohibition. Nor can it be urged that according to our 
 view the father may, before entering on his marriage with 
 the mother, choose a domicile prejudicial to the interests of 
 the child. For on the one hand the legitimation of a child 
 depends upon a voluntary recognition by the father,* and on the 
 
 birth is possible, the wish of the child does not affect the leading of the proof. 
 Gand, No. 458. [A bastard born of a foreign mother and a French father 
 is of foreign nationality till the marriage of its parents, when its nationality 
 becomes that of the father (Carmellini, Trib. d'Albertville, 13th March, 1879.] 
 
 ' Merlin, Questions de droit, art. Legitimation, § 1 ; Story, § 93 ; cf. Burge, 
 i. pp. 102, 106, 107. It seems, however, that the judgments of the English 
 Courts there cited do not at bottom rest on this consideration, but upon the 
 circumstance to be illustrated, infra, note 13. The decision of the Oour de 
 Caen, 18th Nov. 1852, reported by Demangeat on Foelix, i. p. 82, note d, that 
 a child begotten by an Englishman in England upon a French woman cannot 
 be legitimated by the subsequent marriage of its parents does not contradict 
 our view ; it would not be at variance with our theory unless the Englishman 
 had been subsequently naturalised in France. 
 
 * Schaffner, pp. 50, 51. 
 
 » Savigny, § 380 ; Guthrie, p. 302. 
 
§ 102.] 417 
 
 other, if a recognition of the child made at a former domicile 
 really confers a right upon it conditional upon the subsequent 
 marriage, then this right is not lost by a change of domicile ;'" 
 
 1" It is not quite accurate to say that the domicile of the father at the 
 time of the marriage decides (Savigny as cited ; Walter, § 45 ; Unger, i . 
 p. 197). The decision given by Sohaffner, p. 51-2, may be reconciled with 
 the view taken here, but not with the view which takes as decisive the 
 domicile at the time of the marriage. The child may, according to our view, 
 plead the law of that domicile among many successive domiciles of the father 
 which is most favourable to him. But the fact of birth in itself does not 
 establish any family relation between the bastard and the father. Savigny 
 says in reference to the Prussian A. L. R. § 3S0, note 1 : " The Prussian 
 law indeed regards mere proof of intercourse within a certain time before 
 the birth as itself proof of paternity ; yet in legitimation by marriage it 
 makes the rights of legitimacy begin from the nuptial ceremony. Hence, 
 according to the sense of the Landrecht, legitimation has no place if the 
 father before marriage transfers his domicile into a country where the 
 common law prevails and then refuses to recognise the child." 
 
 [The Law of Scotland holds that the domicile of the father at the time of 
 the marriage is the important consideration in determining the legal effect of 
 that marriage upon the status of the children of the persons married (Fraser, 
 Parent and Child, p. 52, and cases quoted there). The case of a birth taking 
 place while the domicile of the putative father was in a country whose law 
 forbade legitimation per subsequens matrimonium, while his marriage with 
 the mother took place at a time when his domicile was in a country whose 
 law allowed such legitimation, has not yet occurred in Scottish law ; the 
 domicile at the date of the birth has never been in conflict with that at the 
 date of the marriage, but the judges in Munro's case, 7 CI. and Fin. p. 842, 
 all held the view that if such a case should occur the law of the domicUe at 
 the date of the marriage must rule. Lord Brougham, in giving judgment in 
 that case in the House of Lords, and enunciating principles applicable in 
 England as well as in Scotland, says : " If the domicile were not the same 
 for both parents at these two periods, we should hold that that of the father 
 at the time of the marriage should give the rule." 
 
 Lord Hatherley, however, in a subsequent case (Udny v. Udny, 1869, 
 L. E. 1, S. and D. A. 447) makes the law of the country in which the father 
 is domiciled at the date of the birth give the rule ; his lordship bases this 
 opinion upon the view attacked by the author — viz., the capacity for legitima- 
 tion attaching to the child at that date. 
 
 As regards succession to real estate, the law of England is correctly stated 
 in the text ; that of Scotland will allow one legitimate by the law of his 
 domicile, unless that character be derived from a union considered inces- 
 tuous by Scots law, to inherit real estate in Scotland. 
 
 The French courts have held that the place of the marriage matters not, 
 and that an English marriage will be sufficient to legitimate the children of 
 a French father and an English mother (Courban ■!). Verri&es, C. de Bourdeaux, 
 
 2 E 
 
418 [§ 102. 
 
 for althougli it may be that the law of the new domicile will 
 not give to a recognition in its own territory the meaning 
 which is desired to be attached to it, it will never withdraw 
 from a recognition made in the territory of another law the 
 effect which belongs to it. 
 
 The effect of legitimation in accordance with the law of 
 the domicile must extend to questions of succession to 
 immoveables situated abroad/^ in so far as these depend 
 upon the recognition of the child as legitimate.!^ The 
 judgments of the English courts ^^ differ from this, and 
 
 27th Aug. 1877). On the question as to the form of legitimation — i.e., 
 ■whether there must, previously to the marriage, be a recognition in the 
 French form of the paternity of the children, or a formal recognition of some 
 kind — the French courts have differed ; the Court of Besangon on Appeal 
 {Balmiger v. Dutailly, 25th July, 1876) determined that in the case of children 
 born of French parents in California, where the marriage afterwards took place, 
 no previous recognition was required, the fact of the children having lived in 
 family with their parents being sufficient evidence of paternity, which is the 
 object of requiring a formal recognition ; the question of the status of the 
 ■children was held to be a personal law, and need not therefore be referred to 
 the determination of the law of the country in which they were claiming suo- 
 ■cession ; such children were therefore held entitled to succeed to estate, real 
 and personal, belonging to a succession that had opened in France, and was 
 therefore being administered according to French law. The Court of Paris, 
 on the other hand, held (Chevrillon v. H6ritiers M^chain, 2d Aug. 1876) that 
 bastards if legitimated abroad could only be legitimated according to French 
 law, and that the fact of their being children of their reputed father could only 
 be proved in the way directed by French law — ^viz., by a declaration previous 
 to the marriage, no equivalents being suflSoient. The peculiarity of the 
 French rule of evidence as to the paternity of a child, which does not permit 
 that relation to be established save by the confession of the father, leads to 
 these difficulties, and it is on the ground that' any infraction of this rule would 
 be contra honos mores that the decision of the Court of Paris proceeds.] 
 
 11 Schaffner, p. 53 ; Bouhier, chap. 24, No. 123 ; Gunther, p. 732 ; 
 Hommel, Ehaps. Queest. ii. obs. 409, No. 3 ; Hert, iv. 14 ; Boullenois, i. pp. 
 •62-3, 130-31. 
 
 12 Story, § 87a, and Lord Brougham (Story, § 93p) pronounces in the same 
 sense. See judgment of the Supreme Court of Appeal at Oldenburg, 5th 
 March, 1853 (Seuffert, vi. 433-34) : " The law applicable at the time of the 
 l)irth or legitimation, as the case may be, decides what children are to be held 
 legitimate or validly legitimated. But in succession the law of the domicile 
 of the deceased determines the rights of legitimated as well as of legitimate 
 children." 
 
 13 Burge, i. p. 109, approves of these judgments : " The personal quality 
 or status of the person, if it constitutes his title to succeed to real property, 
 must be that which the lex loci vel rci sitce has prescribed." 
 
§ 102.] 419 
 
 require in order to found a claim to succession in immove- 
 ables that the child should be held legitimate by the law of 
 the place where the estate lies, and that in spite of the fact 
 that they have approved of the view whereby a child, 
 illegitimate by the law of its domicile, is held incapable of 
 making any claim of succession to immoveables, whatever 
 the law of the place where these are situated may be.^* 
 These judgments may be explained in this manner : — 
 The law of England does not give legitimate children 
 action against their father for recognition : the illegitimate 
 child recognised by his father has the same rights against him 
 that a legitimate child has,^^ and the legitimacy of a child 
 which the father has recognised is only questioned as a pre- 
 judicial point in claims of succession. The exclusion of 
 children begotten out of wedlock, who have been recognised 
 by the father, does not then depend upon the legal uncer- 
 tainty as to their birth, — which can only be removed by legi- 
 timation, as is the case in modern Roman law, — but upon an 
 incomplete incapacity attributed to bastards,^® such as we 
 often find in older German law and in many feudal systems. 
 Now since a foreigner has no greater or more complete 
 capacity than an Englishman, he is not entitled to acquire 
 landed property in England, where feudal principles regulate 
 all questions of title to land, any more than he would be 
 entitled in his own country, supposing the same principles of 
 feudal law to prevail there, to claim succession to feu rights, 
 even although he had obtained a grant of legitimacy from the 
 Crown, which would apply to all other legal relations.-^' The 
 
 1* Story, 87a. 
 
 15 Burge, i. p. 90 ; Blackstone, i. 451 ; Stephen, ii. 299. The bastard is 
 counted afiUus nullius in questions of succession to moveables also ; but the 
 Crown can grant special privileges, Stephen, ii. 300. 
 
 1' The exception which the law of England makes in the case of a bastard 
 2mis ni can only be referred to equitable principles. 
 
 ^^ See supra, § 27, principles of legal capacity. The grounds assigned in 
 England for this decision do not justify it, as Lord Brougham has shown. In 
 particular, the words of the statute of Merton, which have to be considered, 
 by which there is required birth " in lawful wedlock," merely require legiti- 
 macy ; nor can we allow an appeal to the fact that we have to deal with a 
 prohibitive statute, since, as is well known, there are prohibitive statutes 
 which without any dispute are counted as personal statutes. Molinfeus, ad 
 
420 [§ 102. 
 
 fact that one wlio is pronounced incapable by his own lex 
 domicilii cannot succeed ah intestato to land in England, 
 whatever the law of England might say as to his capacity, is 
 explained by observing that in such a case the lex domicilii 
 denies the relationship of the deceased to the successor, and 
 that relationship must be determined by the lex domicilii, 
 and constitutes by the law of England a necessary condition 
 of a claim of succession in immoveables. 
 
 The imperfect incapacity which attached to bastard 
 children in the Middle Ages, and subsequently down to more 
 modern times to many effects, accounts for the theory of the 
 older writers, by which they sought to confine the effect of 
 legitimation given by a rescriptum principis to the territory 
 of the sovereign conferring it -'^ — especially, too, as the sole 
 result of legitimation, even in the territory of the sovereign 
 who bestowed it, was in many cases merely to withdraw the 
 estate of the person so legitimated upon his death from the 
 grasp of the sovereign, and to leave it to the relatives of the 
 person legitimated by suspending the old. German rule of law, 
 which forbade bastards either to succeed or, to a certain 
 extent, to leave a succession. ^^ In view of the import now 
 attaching to legitimation, if, as is the case now-a-days in most 
 territorial systems, illegitimacy no longer works any diminu- 
 tion of legal capacity, while legitimacy merely gives the 
 concrete rights which depend on relationship, it cannot be 
 represented, in discussing the effect of legitimation per re- 
 scriptum on the right of succession to foreign heritable 
 
 Consult. Paris, § 8, gl. 1, Nos. 36-46, gives a decision similar to the English 
 decision, and Bouhier, chap. 24, No. 123, also, in the case of a statute calling 
 only children " nis en loyal mariage " to the succession. 
 
 1^ Alb. Brun. De Statut. art. xiii. § 51. " M idea differt legitimatus a 
 legitimo tanquam imago ah eo cujus imaginem representaf. M propterea 
 Salycetus dixit quod kgitimatio non/acit esse essentialiter legitimam." Bald 
 Ubald in L. 1, 0. de S. Trin. No. 75 ; Chassenseus in Consult. Burgund. 
 Eubr. ix. in tit des mains morter. verb, va demeurer, Nos. 17, 18 ; P. Voet, 
 iv. 3, § 15 ; Argentrseus, No. 20 ; J. Voet, de stat. § 7 ; Bartol. ad L. 1, C. de 
 S. Trin. Alef. No. 59 ; Oocceji, De fund. v. §§ 7, 8 ; BouUenois, i. p. 64 ; cf. 
 Bouhier, chap. 24, No. 129. 
 
 19 Chassenseus, 1. c. Ruhr. viii. in tit. Des successions de bastards, verb, 
 ab intest. Nos. 32, 41, 250 ; Mynsinger, Observ. Cent. iii. obs. 26, Nos. 7, 8 
 ]1 : Gerber, D. Pr, E. §39. 
 
i 102, 103.] 421 
 
 property,^" that the sovereign is dealing with estate which lies 
 beyond his territory : ^^ as we hold a foreigner to be a bastard, 
 if he is so by the law of his domicile, we must also hold him 
 to be legitimate if the law of his domicile declares him to be 
 so.^^ On the other hand, legitimation given in a country of 
 which the father is not a subject does not bestow any rights 
 of relationship as against him.^^ If the child has a different 
 domicile from the father, legitimation in order to give the 
 latter rights against his child must be competent by the law 
 of the country to which the child is subject.^* But this 
 condition is no longer necessary if the child (with leave of its 
 guardians) goes to the domicile of the father. 
 
 II. Adoption and Aeeogation. 
 
 § 103. 
 
 The same principles will rule the constitution of paternal 
 authority by means of adoption and arrogation,^ and also 
 emancipation,^ or the discharge of that authority : the rule 
 " locus regit actutn " must, however, be applied in this case in 
 
 20 Except in feudal law, Of. Gerber, § 110. 
 
 2' Several of the authors cited in note 16 take this ground. 
 
 ''■^ Schaffner, p. 55 ; Wening Ingenheim, § 22 ; Miihlenbruoh, § 72 ; 
 Gunther, p. 732 ; Hommel. Ehaps. Qusest. ii. obs. 409, No. 3, Supreme Court 
 of Appeal at Kiel, 2nd February, 1853 (Seuffert, 7, p. 399). " The legal effect 
 of legitimation bestowed by a foreign sovereign extends to estate of a deceased 
 person situated abroad." One who by a rescriptum principis is legitimated 
 in his own domicile must, therefore, be held to be legitimate in Prance, 
 although the Code Civil does not recognise emancipation per rescriptum (of. 
 Code Civil, arts. 331-33 ; Zacharia Civilrecht, iii. § 370). 
 
 23 Judgment of the Oour d'Appel of Paris, 11th February, 1808 (Sirey, 
 8, 2, p. 86). Such a legitimation no doubt confers complete legal capacity 
 for all legal relations pertaining to the territory of the sovereign conferring it, 
 if the bastard has an incomplete capacity there. 
 
 ^ See supra, note C. 
 
 ^ See foregoing section, note 22, and section 5, note 2, as' to the question 
 in what state sanction must be obtained. The actual domicile, and not that 
 which the father had at the time of the birth of the child, rules. 
 
 2 Merlin, E^p. Puissance Patemelle, vii. § 1 ; Boullenois, ii. p. 31, are of a 
 different opinion. Boullenois himself recognises the difficulties that may 
 arise from this rule (§§ 35-6) ; if, for instance, there are several children in 
 existence, the younger brother might thus be emancipated before the elder* 
 
422 [§§ 103, 104. 
 
 so far as the form of any declaration is concerned. (Cf. 
 however, § 102, note 4).^ Unless it is expressly prohibited 
 by statute it must be held competent to adopt a foreigner or 
 to be adopted by a foreigner.* A daughter is always emanci- 
 pated by marriage, since the wife follows her husband's 
 domicile, if the law of the new domicile makes the paternal 
 power cease upon that event. ^ 
 
 III. Rights of the Father in the Property of his 
 Children. 
 
 § 104. 
 
 The rights of the father in the property of his children 
 are to be determined by the same principles^ which decide 
 whether and to what extent the lex domicilii or the lex rei 
 sitce is to regulate questions of patrimonial rights between 
 the spouses.^ According to older German law, which was 
 retained in various of the customary laws of France up to 
 the time of the publication of the Code, and according to 
 the law of England, the lex rei sitce is applied in the 
 case of immoveables, while, according to the common 
 
 2 Bouhier, chap. 24, No. 86 ; BouUenois, ii. pp. 48-49 ; Merlin E^p. Puis- 
 sance Pat. vii. Nos. 5-7 ; Hert, iv. 47 ; Hofaeker, de eff. § 21 ; Unger, p. 195 ; 
 Wachter, ii. p. 185, who, however (note 306), rejects the application of the 
 rule " locus regit actum," probably because the prescribed permission of the 
 authorities, which in certain circumstances may be refused, has been regarded 
 as a form. (See supra, § 34). Of. Unger as cited, note 139 ; Gand, No. 470. 
 (The Code Civil, art. 353, rejuires a formal judicial "jugement"). 
 
 ^ The contrary is laid down by many French authors and in French 
 practice, Fcelix, i. p. 97-8 ; Gand, No. 465. See, on the other hand, Mailher 
 de Chassat, No. 225, and Demangeat on Foelix, i. p. 98 ; cf. what was said 
 sitpra, § 27, as to legal capacity. [A foreigner who has a right of residence 
 from Government maybe adopted (B^toland, C. de Paris, 30th April, 1881).] 
 
 ^ Wachter, ii. p. 187. 
 
 1 Differences— By the law of England, the father has the administration, 
 but not the usufruct of his son's property (Blackstone, i. p. 453 ; Stephen, 
 ii. p. 294) ; while by common Koman law the father as a rule enjoys both. 
 
 2 The lex domicilii alone decides whether a son is under paternal authority 
 or not. The usufruct of the father of an Englishman in an estate situated in 
 the territory of the common law of Rome, terminates with his 21st year, since 
 by the law of England the authority of a father terminates then. Merlin, 
 K6p. Puissance Patemelle, vii. § 1. 
 
§ 104.J 423 
 
 law of Rome and modem Frencli law, tlie lex domicilii is 
 the rule.^ 
 
 The following exceptions are admitted : — 
 
 \st. The law, by which the rights of the father in the 
 estate of the children are fixed, does not propose to settle 
 these for all time, in the same way as the law with regard to 
 the property of the spouses. The authority of the father, at 
 least in modern law, is a legal relation which is terminated 
 by his death. Besides the father's right of property does not, 
 like the rights of the spouses, rest upon the free consensus 
 of the parties interested, but upon the relation which Jus 
 Publicum confers upon them. This is determined by tte 
 law of the actual domicile. Lastly, however, it cannot be 
 the intention of the law of the new domicile to disturb rights 
 of property which have already arisen.* On these reasons 
 depends the correctness of the prevailing theory, which holds 
 the law of the domicile at the time of the alleged acquisition 
 of the right to be the rule, and not the law of the domicile 
 which existed at the date of the child's birth.^ 
 
 2nd. It is certain that, if the lex dom,icilii allows it, the 
 father can renounce a right of usufruct which the lex rei 
 sitae bestows upon him, and under similar conditions the son 
 may acquire a foreign estate in such manner as to exclude 
 
 ^ Capacity to act is also to be determined solely by the lex domicilii. The 
 lex rei sitce should rule, according to Merlin, Edp. Puissance Paternelle, vii. § 1. 
 Duplessis, Consult, xv.; (Euvres, ii. p. 77 ; D'Aguesseau, CEuvres, iv. p. 660 ; 
 BouUenois, i. p. 68 ; Foelix, i. p. 121 ; Gand, No. 473 (who even in move- 
 ables would have the lex rei sitce prevail), and also according to the practice 
 of the English common law. 
 
 The grounds adduced by these authors do not, however, justify their theory, 
 which is, in its result, according to the older German and Englifh law, correct. 
 Merlin as cited : " La loi qui donne d un phe I'usufruit des Hens de son Jils 
 doit itre rielle, parceque son objet est riel." For the general validity of the lex 
 domicilii, see Seuflfert, Comm. i. p. 244 ; Walter, § 46 ; Bouhier, chap. xxiv. 
 No. 47 ; Mittermaier, § 30, p. 116 ; Wachter, ii. pp. 187-88 ; Unger, i. p. 195. 
 
 * To apply the law of a new domicile to property already acquired would 
 place the rights of the children entirely at the mercy of the father. Cf. 
 Seuffert as cited, and the authors quoted in the following note. 
 
 5 Bouhier, chap. xxii. No. 17 ; Merlin as cited, § 2. With this the more 
 recent decision of an English court, reported by Story, § 463a, coincides. 
 BouUenois, ii. p. 31, pronounces in favour of the opposite view, although not 
 without hesitation. 
 
424 [§§ 104, 105. 
 
 the usufruct of the father. This must be the case if the son 
 acquires an estate abroad out of his own funds over which 
 the father has no usufruct.^ In like manner it must be 
 assumed that there is a reservation of the usufruct in favour 
 of the father, if he acquires a property with funds of the son 
 over which he has a usufruct, and the lex rei sites can as a 
 rule therefore be applied only to estate which the son has 
 inherited.' 
 
 H. Duty op Maintenance^ and Dowering. 
 
 § 105. 
 
 The obligation to maintain and to dower arising from 
 kinship is to be decided according to the law that exists 
 
 ' The intention of the donor or deceasing person will decide in cases of 
 donation or bequests mortis causa, and this intention may no doubt be 
 determined by the law of an earlier domicile. Older authorities propose to 
 apply the law of the earlier domicile on account of the possibility of dolus on 
 the part of the father. See Merlin as cited, No. 2. 
 
 '■ [A decision of the French courts has laid it down that the privilege of a 
 liferent in the children's estate, given by French law, is a personal law, and 
 therefore, if the parent claiming the liferent is French, it must be allowed 
 whatever the nationality of the children may be (Chimol v. Cohen, 14th 
 March, 1877) Cour de Cassation. In this case the children were children 
 of an Algerian Jew and his wife ; the father died, and the mother 
 became naturalised as a Frenchwoman ; she then claimed under the French 
 law the enjoyment of her children's property, and this was allowed to her as 
 from the date of her naturalisation, ratione potestatis paiernai, although her 
 children remained of their father's nationality, and were never naturalised. 
 The rule in England would seem to be different ; see Sir L. Shadwell in 
 Gambier v. Gambler, 1835, 7 Sim, 263, where a father claimed the liferent of 
 his children's property. That case is not directly an authority to the contrary, 
 for neither parent nor children were there domiciled in a country where the 
 law would allow the claim ; the judge, however, deals with the case as being 
 a claim upon property adjudged to belong to domiciled British subjects— 
 viz., the children ; " and so long as they are domiciled in this country, their 
 personal property must be administered according to the law of this country." 
 The principles of English and Scots law would forbid the recognition of any 
 such rights over real estate unless the claim was in accordance with the hx 
 rei sitae.} 
 
 1 The duty of the stuprator to aliment no doubt belongs to the law of 
 obligations. We discuss it in this place, because the point is to demonstrate 
 the difference between the provisions in question, and the legal rules of the 
 family relations : this we could not do before discussing the law of the family. 
 
§ 105.] 425 
 
 at the domicile of the person against whom the claim is 
 made.^ 
 
 It is matter of dispute whether the obligation for aliment 
 imposed upon the person who has had intercourse with the 
 mother of a bastard a certain time before its birth, rests upon 
 kinship. Although the act which may be presumed to have 
 given life to the child cannot be held as a delict iu a question 
 with it/ and the claim which private law gives the child 
 cannot ia any sense be referred to what is to be held to be 
 a delict against the pubhc,* still we cannot refer the obUgation 
 for aliment to any kinship, if we consider the disadvantageous 
 position which the unrecognised bastard occupies as compared 
 with a lawful child, or a child recognised by its father — 
 disadvantages which really rest upon a denial of any kinship'' 
 between the alleged progenitor^ and the child.''' 
 
 On the other hand, the provisions as to the duty of the 
 person who has had intercourse to furnish aliment or to con- 
 tribute thereto, may be regarded from the following point of 
 view. The duty of alimenting the child, if the father is unable 
 to supply aliment or to pay for it, falls on the mother, and 
 ultimately on the State, or on the locality where the mother 
 has her domicile. A law which binds the paramour to 
 aliment has for its object a permanent provision for the child 
 
 2 Of. supra, § 102, note 6. 
 
 ^ See, on the other hand, Vaugerow, Pandects, i. § 260. The mother's 
 claims must be distinguished. 
 
 * Many who maintain that the claim in question has the character of a 
 claim upon a delict, do not hold that any delict was committed against the , 
 child, but that there was a public delict, for the consequences of which — and 
 among these is the birth of the child — the man is answerable (Puchta, 
 Lectures, § 316). It cannot be disputed that illicit intercourse may be held 
 to bo a delict, and in many systems of law it is threatened with public 
 punishment ; but it is difficult to see how that can give rise to a claim for 
 private rights which cannot be made by anyone except the child. We might 
 explain by such a theory a claim on the part of the State for the maintenance 
 of the child. 
 
 ■^ Vangerow, as cited. 
 
 * See, on the other hand, Puchta as cited. 
 
 ' It is not a fair conclusion from words occurring in a statute, to the effect 
 that he who has intercourse must be held to be the procreator of the child 
 (Allg. (Esterr. Gesetzbuch, § 163, ad fin.), that this statute regards kinship as 
 the ground of the claim for aliment. (The same statute book, § 165, says : 
 " Bastards are as a rule excluded from the rights of family and kinship.") 
 
426 [§ 105. 
 
 and tte unmarried mother. Such a law then will hold good 
 as far as may be for all bastards belonging to the State, and 
 conversely cannot be applied to children who happen to be 
 begotten in this country upon foreign mothers, if the law of 
 the mother's domicile does not recognise such a provision, or, 
 as may be the case, holds it to be harmful. For a permanent 
 protection of individuals is the affair of the State to which 
 they belong.^ The child, therefore, can only ask aliment 
 under the conditions required by the law of the mother's 
 domicile, and can only require so much as the lex domicilii 
 of the mother allows him,^ but at the same time he can only 
 make a demand in so far as the law of the place where the 
 
 ' It is also the view always taken in the practice of the Supreme Court at 
 Berlin, that the law of the mother's domicile rules. See the judgment of this 
 court, nth April, 1856 (Decisions, 32, p. 404), 1st Nov. 1850 (Decisions, 20, 
 p. 300), 4th Oct. 1858 (Striethorst, Archiv. N. F. Jahrg. 2, vol. i. p. 355), 
 and the Plenarbeschluss of 21st Nov. 1849 (Decisions, 18, p. 39). The 
 court holds the duty of maintenance, imposed upon the father, as a personal 
 right given to the child by its birth. Holzschuher (i. pp. 79, 488) is also in 
 accord with this view. According to Putter (Fremdenrecht, § 59) the 
 child cannot require more than the law of its domicUe permits, and if the 
 suit be brought at the father's domicile, cannot get more than it is allowed to 
 get according to the law recognised at this latter place. 
 
 [The Supreme Court of Austria, on 31st October, 1871, held that it was 
 competent to give decree for aliment against the father of a bastard, in a case 
 where both he and the mother were foreigners, and that the condition and 
 measure of the claim was the law of the mother's domicile.] 
 
 ^ The extent of the paramour's obligation can only be determined by the 
 law of the domicile of the mother at the time of the child's procreation, and 
 not by the law of any subsequent domicile of the mother (Koch, on § 23 of 
 the introduction to the Prussian A. L. E., is of a different opinion). For 
 although the mother and the child come under the protection of the law of 
 the new domicile, yet it cannot be laid down that that law will give them a 
 right which has its origin in an act that took place previously. Otherwise 
 the mother would have it in her power to throw an obligation upon her 
 paramour at her pleasure. If the mother changes her domicile after connec- 
 tion, but before the birth of the child, the defender must be amerced in 
 accordance with the law of the new domicile, if he has had connection with 
 the mother since her change of domicile. With this the Plenarbeschluss of 
 the Supreme Court of Berlin, 1st February, 1858, accords (reported in the 
 Decisions of the Supreme Court at Berlin, xxxvii. 1-16, and by Seuffert, xii. p. 
 444), "because the right of the child arises when it is begotten, although it is 
 first put in force when the chUd comes into the world with the capacity 
 for life." 
 
§ 105.]. 427 
 
 act occurred from which these rights take their origin allows ;^* 
 for it is to these alone that the paramour is subject. ^^ If, 
 on the other hand, we were to ask that the persons and the 
 property of our subjects should enjoy more ample protection 
 abroad than the laws of that place permit, we should extend 
 unwarrantably our laws into the territory of another State.^^ 
 Finally, the judge must always dismiss an action, if the 
 law of his country shall hold it to be unbecoming or im- 
 moral.^^ 
 
 '" The obligation of the paramour arises immediately from his relation to 
 person of the stuprata, cf. swpra, §§ 87-88. 
 
 " See note 14, as to the rule when there have been several acts of connec- 
 tion at diflferent places within the critical time. 
 
 '^ If the obligation depended on a delict it would have no reference to the 
 law of the domicile. 
 
 '^ The provision of the 340th article of the Code Civil : " La recherche de la 
 paterniti est interdite" makes an action by a bastard who has not been 
 recognised as improper ; every court, therefore, in whose jurisdiction the 
 Code Civil is recognised, must throw out such an action as incompetent. 
 (Judgment of the Court of Cassation of the Ehine at Berlin, 29th Dec. 1830. 
 Volkmar, p. 147). But that provision is not a mere rule of process. The 
 law of France gives no legal title to a child, from the mere fact that the 
 person against whom he makes a claim has had connection with his mother, 
 a provision very carefully laid down in article 340 as to abduction. (See the 
 Plenarbeschluss of the Supreme Court at Berlin, p. 46, cited in note 8). 
 Foelix, i. § 33, p. 84, note 2, is of opinion that no claim could be made 
 against a Frenchman, even in a foreign country, by a child begotten upon a 
 foreign woman, whereas the child of a Frenchwoman will have right of action 
 against a foreigner in his domicile, if the action is competent by the law 
 recognised there. It may often be doubtful whether a law which allows 
 action upon illicit intercourse as a general rule, but under special circumstances 
 excludes it, considers the action raised in any particular case as improper or 
 immoral. For instance, the Prussian Statute of 24th April, 1854 (G. S. 1854, 
 p. 193, §§ 9, 13), provides that the claim recognised in other cases should not 
 hold in the case of the children of persons who were censured for incontinence. 
 In the judgment of 4th October, 1858, already quoted, the Supreme ^Court 
 rejected the plea of a Prussian subject founded on these provisions, advanced 
 by him in an action raised by a woman of Brunswick, because the paragraphs 
 cited only give rise to an exceptio. It cannot, however, according to my 
 view, signify whether the defender is obliged to aver the circumstance in 
 question and to prove it (to advance it ope exceptionis) or not, in order to 
 establish that a particular action is to be held immoral. The defendeij^must 
 also guard against the exceptio metus, although an action proceeding upon an 
 extorted promise is held to be contra bonos mores (Puchta, Pandects, § 56). 
 The provision of § 9, 2a of the Prussian law already cited, whereby the 
 claim falls if the mother has taken money or a present for the act of inter- 
 
428 [g 105. 
 
 Those who deduce the obligation for aliment from a delict, 
 found either upon the law of the place where the intercourse 
 took place or of that where the action is brought.-^* 
 
 If, on the other hand, kinship is to be held to be the origin 
 of the obligation,''^ then the law of the domicile of the defender 
 must in the first place decide.^^ 
 
 course, may be referred to considerations of morality. See too the Plenar- 
 beschluss cited, p. 51. 
 
 " Eeyscher, § 82 ; Phillips, p. 192 ; Bluntsehli, i. § 12, iii. ,3 ; Judgment 
 of the Supreme Court of Appeal at Munich, 1st Dec. 1829 (Seuffert, i. 157) ;■ 
 Plenarbeschluss of the same Court, 5th June, 1855 (Seuffert, iv. 325) ; and 
 the judgments of the Supreme Court of Appeal at Jena in 1835 and 1839 
 (Seuffert, ii. p. 161), all are in favour of the lex loci delicti commissi. The 
 lex fori is supported by Mittermaier, § 30 ad fin.; Savigny, § 374 ; Guthrie, 
 p. 255 ; linger, pp. 196-97 (who, however, proposes to settle the scope and 
 duration of the obligation by the law of the father's domicile) ; Harum, in 
 Haimerl's Magazine, viii. p. 397 (not, however, because the action arises 
 upon a delict, but because the rights of the child are inherent in the relation 
 itself, and must, therefore, be determined by every system of law according 
 to its view of morality) ; Judgment of the Supreme Court at Stuttgart, 28th 
 March, 1846 (Seuffert, iii. 161). (In the case in question the child was one 
 begotten upon a woman of Wiirtemberg, in Baden). Seuffert (Gomm. i. p. 
 245) argues against the view which takes the lex loci delicti commissi as the 
 rule, that when there have been various acts of connection in different places 
 at the critical time, the decisive place is not easily ascertained ; but his argu- 
 ment is not substantial. The question is not whether the child is the fruit 
 of any particular act of connection, but whether that was possible. The 
 pursuer may in this case appeal to the local law which is most favourable to 
 her. The Supreme Court of Appeal at Dresden consistently follows 'the 
 theory that the law of its own country must rule civil claims advanced there, 
 and proceeding upon illicit connection with a foreign woman in a foreign 
 country. Judgment of 20th Sept. 1860, Seuffert, 14, p. 334. The Draft 
 Code for tbe kingdom of Saxony says in art. 1560 : "Claims arising upon 
 a birth out of wedlock, which are advanced before the courts of this 
 country, are to be determined by this Code, although the birth took place 
 abroad." But in the second part this addition is made : " If, however, the 
 woman is a foreigner, and the birth takes pbce in a country where the 
 law does not allow her or her child to make any claim, they cannot bring any 
 in Saxony. In so far, however, as different kinds of claims are recognised by 
 the law of the foreign State, they will be recognised in Saxony also, and 
 their amount determined by the provisions of this Code." This draft, as may 
 be seen, comes very near the view adopted in the text. 
 
 15 This seems wrong, if, as in the common law of Rome, it is no answer to 
 the claim that the woman, during the time of conception, had intercourse 
 with several men. 
 
 1^ Gand, No. 462 ; Waohter, ii. p. 460 ; Seuffert, Comm. as cited ; Giinther, 
 
%lQ5,NoteQ] 429 
 
 Some territorial systems give the bastard who has not been 
 recognised, besides his claim of aliment, a right of succession 
 ab intestato to his mother's paramour. It need scarcely be 
 said, however, that the law which determines the succession 
 is the only one that can decide, and therefore, in so far as 
 moveable succession is concerned, the law of the last domi- 
 cile of the deceased.^^ For in its very nature such a provision 
 only goes so far as the law of the succession of any particular 
 person permits, or can permit. The right of succession ab 
 intestato, which the Prussian A. L. R 2, ii. §^ 652-54, gives to 
 a bastard who has not been previously voluntarily recognised 
 by a judicial act, cannot be pleaded if the child's father had 
 his last domicile in a country where the common law of 
 Rome prevails, even although he may have left immoveables 
 in Prussia. Third persons, too, such as the paramour's 
 father, are only liable to claims in so far as the law which 
 rules the circumstance in virtue of which the burden is laid 
 upon the paramour — i.e., the law of his domicile binds them.^® 
 
 The claim of the mother for damages, on the other hand, 
 on account of her • seduction, is really a claim upon a delict. 
 (See supra, § 88.) 
 
 Ifote Q, on § 105. 
 
 [Claims for aliment will be viewed favourably by all courts, 
 and will be enforced against parties not otherwise subject to 
 
 p. 732, holds that the obligations arising out of the circumstance in question 
 have effect in the father's domicile, only if and in so far as they are in accordance 
 with the law of that domicile as well as with the law of the mouther's domicile. 
 A judgment of the Supreme Court of Appeal at Liibeck, 20th Nov. l857, 
 reported by Seuffert, 9, p. 325, decides in favour of the lex domicilii of the 
 defender. 
 
 1'^ See Wachter, ii. p. 397. 
 
 18 Supreme Court at Berlin, 1st Nov. 1850 (Decisions, xx, pp. 300, 304, 
 307) : " Foreign bastards cannot acquire any rights by the interpretation of a 
 disputed rule of the common law adopted in Prussia which they do not eujoy 
 according to the interpiretation adopted in their own country. . . . Conversely, 
 if the law of this country gives a bastard no claim of aliment against the 
 father of his father, while the lex domicilii does, it is important to observe 
 that in no case can obligations be imposed upon a native of this country by 
 a foreign law without his consent, to the effect that he can be asked to 
 satisfy them here, although our law recognises no such duties." 
 
430 [Mte Q. 
 
 thoir jurisdiction. This is a consequence of the claim being 
 due ex debito naturali, and presumably the same in every 
 civilised country. The French courts will allow one foreigner 
 to sue another for aliment, although as a general rule they 
 are closed to suits between foreigners (Bouchard, 10th May, 
 1876, Trib. Civ. de la Seine). In another case, where the 
 same rule was applied against a defender resident but not 
 permanently domiciled in France, it was remarked : " The 
 action is founded on a natural obligation, as well as conse- 
 crated by public law, and it touches public decency that it 
 should be implemented" (Frings v. Mathyssens, Srd May, 
 
 1879, Trib. Civ. de la Seine). French children have been 
 held liable by the French courts to aliment their father, who 
 had become naturalised in America, on the ground that the 
 paternal relation, on which the obligation was founded, took 
 its origin before his American naturalisation (Trib Civ. de la 
 Seine, 22nd May, 1877). In Scotland it has been laid 
 down that personal presence in the territory for however 
 short a time will found jurisdiction to entertain an action of 
 aliment by a child against a father, the father having the 
 child with him within the jurisdiction of the Scottish courts, 
 per Lord Mackenzie in Einger v. Churchill, 2 D. 316. 
 
 The same favourable view is taken of claims for aliment 
 by a wife against her husband. The court of any country 
 where the husband resides will, according to French decisions, 
 entertain a suit for aliment, and if the marriage is denied, 
 process will be sisted until this question can be determined 
 by the judge of the proper domicile (UUmann, 20th April, 
 
 1880, Cour de Paris). The general principle upon which 
 this assertion of jurisdiction is advanced, is forcibly stated in 
 a judgment of the Civil Tribunal of the Seine, and is put 
 upon considerations which will hold good for all systems of 
 jurisprudence : — " Marriage is a contract belonging at the 
 same time to natural law and to the law of nations ; it 
 creates for the spouses rights and duties which follow them 
 everywhere, and which they are bound mutually to observe 
 in a foreign country as fully as in their own ; in particular, 
 one of its results is the obligation on the husband to receive 
 his wife in his house, and to supply her wants." Following 
 out this general statement of the law the Court ordained a 
 
Note Q, § 106.] 431 
 
 foreigner trading in France and resident there, to entertain 
 his wife in his house, or otherwise, to pay her a certain 
 allowance (Stoops v. Stoops, 31st Aug. 1878). As to interim 
 awards of aliment, while actions for divorce are pending, see 
 note on § 92.] 
 
 F. GUAEDIANSHIP. 
 
 § 106. 
 
 We have already, in dealing with the law of persons, 
 discussed the incapacity of certain persons, and in dealing 
 with the* law of contracts, the obligations of guardians or 
 curators ; all that remains now is to inquire, while we are 
 occupied with the law of the family, by what rules the repre- 
 sentation of a minor, or person under curatory, should be 
 determined. This is the aspect of guardianship which belongs 
 to the law of the family ; we have here to deal with the 
 authority exercised by a guardian or curator over the person 
 and the property of his ward in a fashion analogous to the 
 exercise of the authority of the father. 
 
 The principle which rules the whole subject is that, accord- 
 ing to the theory of the law which has in modern times 
 been generally accepted,^ guardianship exists solely in order 
 to ensure a permanent protection of the person of the ward, 
 and that this protective care must be entrusted to the State, 
 and regulated by the law of the State to which the ward 
 belongs.^ It is an immediate result of this principle that, 
 except in the practice of English, Scottish, and American 
 courts, there is a recognised rule that the guardian is named 
 by the judicial authorities of the domicile, and has to admin- 
 ister the estate of the ward, whether in that country or 
 abroad, and to represent him before foreign courts f although 
 
 1 For an exception, see note 3 below. 
 
 2 Savigny, p. 380 ; Guthrie, p. 303. 
 
 3 This is the decision of Argentrseus, No. 19 ; Hert, iv. 29 ; Bverhardus, 
 Consil, vol. ii. cour. 28, No. 82 ; Andreas Gaill, Observat. ii. obs. 123, No. 
 6 ; Stockmann's Decis. Brabant decis. 125, No. 6 ; Petr. Peckins, De Test, 
 conjug. iv. 0. 28, § 7 ; Molineeus in Leg., 1 0. de S. Trin. ; Boullenois, ii. 
 p. 320 ; Fcelix, ii. § 466, p. 202, and i. § 33, p. 81, and § 89, pp. 206-07. Mass^, 
 No. 62, distinguishes between the appointment of a guardian for the person 
 and for the estate. In the first case the lex domicilii is to be the general 
 
432 [§ 106. 
 
 we do not deny the competency of appointing more than one 
 guardian within the limits of one and the same territory, a 
 course which reasons of convenience will justify in cases 
 where there are different estates lying apart from each other.* 
 Of course, every court is competent to make provisional 
 .regulations — i.e., to appoint a provisional guardian in cases 
 of necessity, when it finds a person or an estate within its 
 jurisdiction in want of immediate assistance, just for the 
 very reason that there is in such a case no question of per- 
 
 rule, and therefore he is in fact of the opinion taken in the text.* As to the 
 case of a curator appointed to the estate, in which connection he refers chiefly 
 to the curator ionorum in. bankruptcy, see the law of bankruptcy infra. 
 Kxaut, Guardianship, i. p. 284, describes the view taken here as the general 
 usage in Germany, although some particular systems may differ from it. Cf. 
 Bouhier, chap. xxiv. No. 63 ; Gand, Nos. 488-89 ; Merlin, E^p. Autorisation 
 Maritale, § 10 ; Vattel, ii. 7, cap. 7, § 85 : " Le droit des gens qui veille au 
 commun avantage et a la bonne harmonie des nations, veut que cette nomina- 
 tion d'un tuteur ou curateur {par le juge du domicile) soit valable et reconnue 
 dans les pays, ov, le pupille pent avoir des affaires." Holzschuher, i. p. -86 ; 
 Thol, § 81 ; Schaffner, p. 55. The treaties collected in Krug (pp. 26-9) pro- 
 vide without exception that, as regards all moveables, the guardianship 
 should be constituted by the court of the domicile, and recognised in the 
 other State. But if there are foreign immoveables in question, then, accord- 
 ing to some of these treaties, the guardian appointed by the courts of the 
 domicile is to be recognised by the authorities of the other countries as 
 having right to the estate. Others give the authorities of the court where 
 the estate lies the power of appointing special curators as far as it is con- 
 cerned, or of confirming the foreign curator, who must, however, in all his 
 dealings with the estate in question, observe the conditions which the law of 
 the place requires. (For the interpretation of this latter provision, see infra, 
 note 20.) According to these treaties, the courts of both countries shall 
 account to each other for the application of the income. 
 
 * Of., e.g., L. 20, § 2 ; D., de exous, 27, 1. The provision in this passage, 
 that the prcesides of the various provinces where the property of the ward lies 
 should appoint guardians, is to be treated as a rule of convenience which can 
 only be applied within one territory. Provisions for the care of the pupil 
 and his estate will be dealt with in a similar fashion by all courts within the 
 same territory (and in the Roman empire the whole territory was one) ; and, 
 therefore, it matters not which of the various officers appoints the guardian 
 and superintends him. It is a different matter when the officers of different 
 States are in question, who may be under different systems, and regu- 
 late their superintendence of guardians by different principles. In this case, 
 too, it may seem convenient to appoint different guardians. The administra- 
 tion, however, must be managed through the judge of the pupil's domicile, 
 and in accordance with the law of that domicile. 
 
§ 106.] 433 
 
 manent protection, but merely of a temporary guardianship, 
 which is due to every one who happens to be in the country, 
 or to possess estate there, and which is the only means of 
 protection that can be exercised in such circumstances.^ 
 The opposite view, by which the validity of the appointment 
 made at the domicile of the ward is not recognised, even as 
 regards the moveables situated abroad,^ cannot be logically 
 carried out. If that appointment is not recognised by the 
 State, it lias the right and the duty of appointing a guardian 
 so soon as any piece of property belonging to the pupil falls 
 into its territory. Otherwise not only would the person who 
 stands in need of representation by a guardian be deprived 
 of all protection, and of the capacity of making contracts, 
 but the subjects of that State would be placed in a most 
 dangerous position if they desired to make contracts with 
 such a person. A special guardian will probably not be 
 appointed unless the rights of the ward are to be pleaded in 
 some court.'^ To require such an appointment in every case 
 seems to be a pure oppression of one from whom the State 
 exacts taxes and duties without making any return therefor, 
 as it does by the appointment of guardians in the case of its 
 own subjects. It is impossible, as we have seen in practice, 
 to appoint a guardian for every foreigner who happens to be 
 for a time in the country, or to possess moveable property 
 
 ^ Gand, No. 489. Piittlingen, § 61, describes this as a duty of humanity, 
 and very properly desires that the curatory should be handed over as soon as 
 possible to the ofB.cers who have personal care of the foreign vizard. The pro- 
 cedure of the court until the foreign officials take over the curatory can, of 
 course, only be conducted in accordance with its own law ; and this pro- 
 cedure will be recognised by the courts of the domicile, if it has not exceeded 
 the limits of provisional management. According to the Austrian Code, the 
 matter seems doubtful. Piittlingen, on the ground of §§ 189-90, applies the 
 opinion stated in the text to it. Unger (p. 198), looking to §§ 225-26, 240, 
 holds that no doubt a guardian nominated abroad requires no confiimation 
 in the Austrian courts, but that where a ward has real property in Austria, 
 a special curatory must be established in Austria, according to the lex rei 
 sitae. 
 
 * Story, §§ 540a, 499. So, too, the practice of the courts of England, 
 America, and Scotland. See, too, Mittermaier in Archiv. fur Civil Prasis. 14, 
 pp. 304-05. [See infra, p. 443-44.] 
 
 ■^ This is the result of the practice of England and the United States. 
 Burge, iii. pp. 1010-11. [See infra, p. 444.] 
 
 2 F 
 
434 [§ 106. 
 
 there ; and the matter, as a rule, is reduced to this, that it 
 becomes necessary to appoint as guardian the person appointed 
 at the domicile, who alone has the necessary information as 
 to the circumstances of the ward. 
 
 It may be objected that, where a practice of this kind has 
 grown up out of reasons of convenience, it should be main- 
 tained, and that where that is not the case, the principles 
 that hold. as to the sovereignty of individual States should 
 rule ; and that, as the guardian is clothed with the character 
 of an officialof the Government, no one who is nominated to 
 that office by a foreign Government can act in this country 
 unless confirmed by the Government of this country. But 
 although the guardian in modern times holds his position by 
 the appointment of the Government, yet that does not by 
 any means prove that he exercises any of the functions of a 
 Government official. The truth is rather that, under certain 
 limitations, he exercises a family authority which belongs to 
 the father in other cases. The difference merely consists in 
 this, that the father holds his authority by direct provision 
 of law, while the guardian holds his position by an act of the 
 Government, proceeding likewise upon the ground of the 
 common law of the domicile, and importing, therefore, the 
 same effects as the paternal relation.® It cannot, there- 
 fore, be said that a special license should be required in 
 order to give a guardian appointed by Government officials 
 the right to exercise the same powers which the father can 
 undoubtedly exercise over the moveable property of his child 
 in a foreign country.^' ^^ One might just as well require that 
 
 * In Roman law, as is well known, there were many cases in which the 
 guardian did not require any authority from the Government for the adminis- 
 tration of the ward's property. Burge himself (iii. p. 1002) recognises that 
 the appointment of a guardian or curator by the judex domicilii is to be 
 recognised everywhere as far as the person of the ward is concerned. 
 
 ' The person of the ward must be given up to the guardian if he demands 
 it. If, however, dolus on the part of the guardian is inferred, this surrender 
 may be refused until correspondence has been had with the officials of the 
 ward's domicile charged with the superintendence of curatories, and a pro- 
 visional curator may be appointed. See supra, note 5. 
 
 I" The analogy which Story, § 504, draws of the coniirmation of foreign 
 executors and administrators who wish to get possession of moveable estate 
 belonging to a foreigner, and situated in a territory where the comm.on law 
 
§ 106.] 435 
 
 the ofEcials of a foreign Government should be confirmed, in 
 order to entitle them to represent their subjects and follow 
 out their rights in a foreign country. An intermediate view 
 proposes that the office of guardian should be recognised as 
 far as regards the moveables situated abroad, but requires 
 the appointment of a special guardian for the real property 
 which the ward may have in another country. ^^ 
 
 This view may no doubt be carried out ; but it cannot 
 derive any support from the argument that the exercise of 
 the office of a guardian, without previous confirmation by the 
 authorities of the country where it is to be exercised, is an 
 invasion of the sovereign rights of that country, any more 
 
 prevails, cannot be approved. In that case -we have to deal with the institu- 
 tion in possession of one who previously had no rights ; in the case of guardian- 
 ship we have to deal with the exercise of a family authority over the pupil's 
 person, and the representation of him by his guardian. 
 
 ^^ Burgundus, ii. 18 ; Martens, § 98,— the latter upon the ground that the 
 question is one of an act of voluntary jurisdiction, which will not take effect 
 abroad without special provision by treaty. The rule, however, is that acts 
 of voluntary jurisdiction are good in a foreign country. Of. supra, § 34, and 
 Fcelix, ii. § 466. P. Voet, 9, c. 2, No. 17, remarks : " Quarmiis regular- 
 iter ah illo magistratu detur tutor, ubi pupillus domidliv/m habet ubi 
 parentes habitarunt : etia/m qui dat tutorem, eum primario personw non rei 
 cUdisse censetur, adeoqu& is, qui simpliciter datus est, ad res omnes etia/m in 
 diversis provinciis sitas datus intelligitur, id quod plerumque jure Romano 
 obtinebat, quo diversarum provineiarum ma-gistratus uni sulerant impera- 
 tori. Ne tamen videatur Judex domicilii quid extra territorium fecisse, non 
 prcBJudicabit Judici loci, ubi nonnulla pupillaria bona sita, quin et tutorem 
 pupillo ratione illorum bonorum scilicet immobilum recte dederit. Unde 
 etiam si de prmdiis minoris alienandis contentio, si quidem in alia sita 
 sint provincia, tutius egerit tutor, qui datus est in loco domicilii, si decre- 
 tum ab utroque Judici curet interponi et domicilii pupilli et rei sitoe." Of., 
 too, J. Voet, in Dig. 26, 5, No. 5 : " Non autem in loco originis ml situs 
 rerum pupillariv/m, sed tantum in loco domicilii pupillaris tutores n loco 
 illius camera pupillari aut magistratu erea/ri, moris est, qui hoc ipso dati 
 intelliguntur universo pupilli patrimonio, ubicumque existenti. Quod tamen 
 6% comitate magis quam juris rigore sustijietury quum in casu, quo pupillus 
 immobilia habet sita in eo loco qui non subest eidem magislralui supremo, 
 cui pupillus subest ratione domicilii, magislratus loci, in quo sita immobilia, 
 rebus in suo territoris existentibus peculiarem posset tutorem dare." Mal- 
 thseus, De Auction, i. c. 7, No. 10, is of another view : " Sic enim et tutor 
 hodie a iudice domicilii datus : nee tamen universorum negotiorum ad bono- 
 rum administrationem consequitiir, nisi cessit judex ejus territorii, in quo 
 prcedia sita sunt." 
 
436 [§ 106. 
 
 than the second view, already dealt with, derives support 
 from that argument. Moveables, so long as they are in any 
 State, are subject to the sovereignty of that State no more 
 and no less than immoveables : the distinction merely con- 
 sists in this, that in the one case the hold of the State over 
 the property is temporary ; in the other it is permanent. 
 
 This view, however, may be historically explained as 
 follows : — 
 
 In the first place, according to older German law, the 
 nearest male agnate of the ward,^^ that is, the person who was 
 entitled to succeed to his real property, either solely or at 
 least for the greater part, was entitled to be appointed 
 guardian ; ^^ it was, therefore, no great step to hold that the 
 right of guardianship was merely one of the effects of the 
 succession to which the guardian was entitled ; the influence 
 was all the easier that by older Germanic law, in which the 
 guardian merely protected the next heirs and rendered an 
 account of his intromissions to them,^* guardianship truly 
 existed, in the first place, in the interest of those next 
 entitled to the succession, while, according to the provisions 
 of many particular systems, the guardian actually drew the 
 income of the estate for himself during the subsistence of the 
 curatory. -^^ If, then, succession in real property was by that 
 older law subject to the lex rei sitce, we have an explanation 
 of the fact that the position of the guardian is determined by 
 the lex rei sitce, and the operation of any appointment of a 
 guardian is confined to the immoveables situated in his own 
 territory. -^^ 
 
 In the second place, however, feudal law required the 
 guardian of the vassal to pay the vassal's prestations to the 
 overlord. It naturally depended upon the lex rei sitce who 
 
 12 Kraut, die Vormundscliaft naoh den Grundsatzen des Deutsclien Eechts. 
 (Guardianship according to the principles of German law), i. p. 165. 
 
 13 Beseler, ii. p. 489. 
 
 1* Kraut. Vormundschaft, i. pp. 92-3. 
 
 15 Kraut, ii. p. 54. By the law of the Longobardi, the guardian had as such 
 a claim of succession to the ward's estate, Kraut i. p. 390. 
 
 18 The judges named by the same lord in one country act in his name, and 
 therefore with authority recognised all over his territory. See note 22 with 
 regard to Great Britain. 
 
§106.] 437 
 
 could and should fulfil these duties, and it was necessary 
 that the overlord should confirm any appointment to the 
 office of guardian made abroad, especially as the older law 
 made him the guardian himself of the feudal estate, and gave 
 the office of guardian in other matters to another vassal." 
 As the feudal relation was more widely prevalent in earlier 
 times we can understand that older writers could not dis- 
 tinguish accurately between this feudal guardianship and 
 guardianship proper, which existed merely for the interest of 
 the pupil ; and, again, that the practice of England and the 
 United States, since in theory the doctrines of the common 
 law of these countries as to real property rest entirely upon 
 feudal principles,^^ should require the appointment of a 
 special guardian, or at least the confirmation of the guardian 
 appointed by the judex domicilii for property situated in a 
 foreign country.-'* 
 
 Modern law, on the other hand, holds that guardianship 
 has no other object than the interest of the ward ; it cannot, 
 therefore, be regarded as being derived from the law of suc- 
 cession or from feudal law ; even in England the rights of 
 the overlord in landed property have disappeared except in 
 the case of real feudal holdings, which can be shown to have 
 been given out by the Crown for a definite period, and to 
 have fallen under the right of reversion.^" There is, then, no 
 other tenable ground left to support the nomination of a 
 special guardian by the officers of the State in which the 
 property lies ; and we must abandon that position aU the 
 more certainly that the result will be either that unnecessary 
 expense and trouble will be incurred by confirming the 
 
 " Beseler, ii. p. 191. 
 
 18 See infra, § 107. 
 
 1' BouUenois, iii. p. 30, and Bouhier, chap. xxiv. Nos. 63-4, distinguish 
 ordinary guardianship from the Garde noble, which occurs in French customary 
 law, and is a rule of the feudal system. See, too, Thol, § 81 ad fin. 
 
 ^ The curatory which some of the German legal systems give over the 
 estate of one who has disappeared (cf. Kraut, ii. pp. 217-66), which belongs 
 along with the right to the income to the next heirs, must be regulated by the 
 law which determines the right of succession to the estate of the person who 
 has disappeared, and therefore in certain circumstances by the lex rei sitcsi 
 but as a rule in Germany by the lex domicilii. So, too, by French law, 
 Foelix, ii. pp. 116, 205. 
 
438 [§ 106, 
 
 guardian nominated by the judex domicilii,^^ who will follow 
 the principles recognised at the ward's domicile in the 
 administration of the estate, or that the interest of the ward 
 in place of being advanced, will be exposed to the utmost 
 disadvantage by the appointment of a special guardian, who 
 will act according to the principles of the lex rei sitae, and 
 independently of the guardian appointed at the domicile of 
 the ward.^^ 
 
 No doubt, grounds of expediency may recommend the 
 appointment of special guardians at the place where the 
 estate is ; but it must be administered according to the law 
 of the ward's domicile. 
 
 It follows from these principles that the guardian has all 
 the privileges which the lex domicilii of the ward gives him 
 and no others. ^^ This, for instance, will determine whether 
 the guardian can alienate any subjects without the sanction 
 of the court, and if so, what subjects, and again what pay- 
 ments he is entitled to receive.^* 
 
 The alienation of the ward's property constitutes a ques- 
 tion of importance, and one that is much disputed. Many 
 
 2' As to letter of administration in questions of succession, see infra, § 113. 
 
 22 The matter is otherwise when different guardians are appointed by courts 
 which are all in the same State (see note 4 to this paragraph), since both 
 courts and guardians act on the same principles. See, however, supra, § 28. 
 It is, howeTer, only recently that the Lord Chancellor of England has been 
 empowered to name curators of lunatics to]administer property in the colonies. 
 Burge, iii. p. 1000. The courts of Scotland and England treat the appoint- 
 ments of guardians made by each other in the same way as if they had been 
 made by some foreign State. Cf. Story as cited. [Infra, pp. 443-44.] 
 
 22 As to the right of the guardian to change the domicile of a minor, see 
 supra, § 31, note 11. A change of domicile wUl transfer to the courts of the new 
 domicile the right of superintending the administration. A provision such as 
 the 85th section of the introduction to the Prussian A. L. E. (" A change of 
 domicile on the part of the ward or his parents does not produce any altera- 
 tion iu the administration of the guardianship ") can only be applicable in a case 
 where a new residence is taken up, and not where there is emigration in the 
 true sense. For this it is undoubtedly necessary that the authorities charged 
 with the superintendence of curatories should assent. This is the decision of 
 a rescript of the Eoyal Prussian Ministry of Justice on 12th Jan. 1827 
 (Mannkopf, vol. vii. p. 16). The case reported by Savigny (§ 380 ; Guthrie, 
 p. 305) may be explained as one would explain a provision of the deceased 
 father of the pupils. 
 
 21 Unger, p. 198, note 153. 
 
§ 106.] 439 
 
 authorities who desire that in other matters the lex domicilii 
 should decide, and give the guardian appointed by the jvdex 
 domicilii the right of administration even in a foreign 
 country, make an exception in this case, because the ques- 
 tion here is one as to the power to dispose of property, and 
 does not affect the person of the ward.^^ But if, as Savigny 
 remarks,^^ a statute ordains that the property of a pupil is 
 only to be alienated under certain restrictions, that consti- 
 tutes a protective regulation for the person of the ward, who 
 stands in need of protection ; it is no mere regulation for 
 the protection of the property, as an object of commerce 
 which it is desirable to set on a firm basis, so as to assure 
 the most advantageous return from it ; such a theory would 
 make the law a real statute. In order to ensure the true 
 object, particular forms of alienation are required, and 
 alienation by a guardian will not have the same effect as the 
 act of an owner of mature age unless these forms are 
 observed. The object of a law of that kind is to give effect 
 to acts of the guardian : it is no real statute, but a personal 
 statute. ^'^ The explanation of the desire of the older 
 authorities in so many instances to apply the lex rei sitce, is 
 that they confused the right of the next heirs, recognised in 
 some districts, to prevent the alienation of a particular 
 
 ^ Aigentrseus, Nos. 19, 20 ; Burgundus, i. § 16 ; Cocceji de fund, vii. 8 ; 
 Molinseus in L. 1, C. de S. Trin. Merlin, E^p. Majority, § 5 ; Burge, ii. p. 
 270, i. p. 14 ; Schaffner as cited — are all in favour of the lex rei sitce. See, 
 on the other hand, Savigny as cited. 
 
 28 Eodenburg, i. 3, § 7 ; Bouhier, cap. 24, No. 10 ; Walter, § 46 ; Thol, § 
 81, are for the hx domicilii. P. Voet, i. 9, c. 2, No. 17, declares that he is 
 doubtful. " Tutius egerit tutor, qui datus est m loco domicilii, si decretum 
 ah utroque judice curet interponi." See, too, Krug, pp. 27-8, as to the treaties 
 cited, supra, note 2. " Among the statutory provisions which hold good at 
 the seat of the property," and which the foreign guardian in his dealings with 
 that property must observe, are to be understood the statutes which relate to 
 that real property as such (statuta realia). On the other hand, the question, 
 for instance, whether the estate can be alienated, is in every case to be settled 
 by the principles of the law of the country where the chief curatory depends. 
 Everhardus, jun.. Const, ii. cons. 28, No. 82; Stockmann, Deois. Brabant, deois. 
 125, No. 10 ; Peter Peckins, de Testam, Conjugum, iv. c. 28, § 7, declare that 
 a decree of the jvdex domicilii is sufficient. 
 
 ^ The judex domicilii is therefore competent to pronounce decree de alien- 
 ando, Kraut, ii. p. 147. 
 
4.40 [§ 106, Note E- 
 
 estate without their consents with the provisions of the Roman 
 law, which had no other object than the interest of the 
 wards ; and this confusion was all the more natural (Kraut, 
 ii. pp. 35-6), as the sentence of the judge would in cases of 
 necessity take the place of that consent.^ 
 
 The exclusive application of the lex domicilii is strength- 
 ened by the consideration that in many cases it will be 
 impracticable to observe the forms required by the law of the 
 place where the property lies if the pupil has his domicile 
 elsewhere. Thus, according to the 451st Article of the Code 
 Civil, it is necessary, in order to alienate real property be- 
 longing to a ward, besides some other formalities, that there 
 should be a resolution of the family council, confirmed by 
 the court of first instance after consultation with the Pro- 
 cureur Imperial. The family council is summoned, according 
 to the 406th Article, by the Juge de Paix at the minor's 
 domicile, and is advised by him. What is to be done if at 
 the domicile of the minor there is no family council, and 
 no Juge de Paix ? ^^ On the other hand, the question 
 whether the property so alienated has been taken possession 
 of, or the wider question, whether restitution on the head 
 of minority must be allowed where possession has followed, 
 will be ruled by the law of the place where the estate lies.'" 
 
 As to the right of hypothec which the ward has over the 
 property of the guardian, see supra, § 65, note 10. 
 
 [The State cannot require a foreigner to take up a curatory 
 or guardianship.] 
 
 Note R, on § 106. 
 
 [The general principles of international law which regulate 
 the recognition of the appointment and administration of 
 foreign guardians are identical, whether the incapacity that 
 gives rise to the guardianship is due to incomplete age, 
 mental weakness or disease, or prodigality. These three 
 
 28 This will meet the practice cited by Schaffner, p. 56. 
 
 2° With this view the judgments of the Supreme Court at Berlin, 25th 
 March, 1838 (Simon and Strampff, vol. i. p. 279) agree, and those of the 
 Court of Cassation of the Rhine, 5th July, 1847 (Seuffert, 2, p. 1). I know 
 no judgments of German courts to the contrary. 
 
 ^ See the judgment last cited, and supra, § 64, note 14, § 56, note 8. 
 
.Note R.] 441 
 
 kinds of incapacity may be considered together, since the 
 incapax from any of the three causes falls into the same 
 legal position, and the rules of law in different countries are 
 the same in all of the three cases. 
 
 The principle that the interest of the incapax is the first 
 thing to be considered has regulated the practice as to the 
 appointment of guardians in America and continental countries, 
 and has now been adopted in England also, except where 
 real estate is concerned. Thus, in France a foreigner will 
 not be excluded from the family council, nor from the oflSce 
 of tutor, merely because he is a foreigner, if he is otherwise 
 suitable for the office (Dunn v. Dupuis, 1st May, 1879, Trib. 
 Civ. de Versailles); a foreign father may be appointed tutor 
 to his son, who is a French subject, if that is most convenient 
 for the interests of the child (Bourchy v. Antoine, Trib. de 
 Briey. 24th Jan. 1878) ; and a foreigner resident in Louisiana 
 has been nominated to be the tutor of his children by the 
 courts of that State (1874, Succession Guillemin, 2 A. 634). 
 The Belgian courts have refused to appoint a foreigner to the 
 office of tutory (Prince of Rheina-Welbeck v. Comte de 
 Berlaimont, Trib. de Namur, 12th Aug. 1872) ; but this 
 decision is pronounced by the Reporter to be of doubtful 
 soundness. The Scots courts have refused on grounds of 
 expediency to appoint persons out of their jurisdiction to be 
 tutors or curators ; but they will recognise the appointments 
 of foreign courts to such offices, except where real estate forms 
 the subject which is to be administered. It is no doubt the 
 influence of the maxim that the interest of the incapax must 
 be the leading consideration for the court that has induced 
 the courts of the continent, in countries where nationality 
 and not domicile is generally accepted as founding jurisdic- 
 tion, to exercise a protective jurisdiction, ratione domicilii, 
 in cases of incapacity, and appoint guardians to persons who 
 are of foreign nationality, and have no more than a domicile, 
 or it may be in some cases merely a residence, within the 
 territory of the court. The French law allows a French 
 citizen to change his domicile without changing his nation- 
 ality, to the effect of submitting the tutory of his children 
 to a foreign law. So, too, a Frenchwoman who has been 
 married to a foreigner, but has on her widowhood returned 
 
442 [Note R. 
 
 to France and recovered her French nationality, may be 
 appointed tutrix to her children who are resident with her in 
 France, although their nationality wUl be that of their father. 
 The appointment is made by the French courts, and the 
 rights and duties of the tutrix on the one hand, and the 
 security given to the wards on the other, over her estate, are 
 those which the law of France allows. This decision bears 
 to proceed upon considerations of social order and public 
 morality (Sokolowski, Bourges, 4th Aug. 1874). So, too, 
 from similar considerations of the interest of the wards, in 
 a case where the father of a family, himself a foreigner, was 
 in jail in a foreign country, and his children, who were with 
 their mother in France, had been left unprotected by her 
 death, the French courts appointed a tutor, although no such 
 step had been taken in their own country (De Nau, 10th 
 April, 1877, Trib. Civ. de la Seine). The courts of Belgium 
 will place a foreigner who is resident in Belgium under 
 curatory as a prodigal. " The Court extends to foreigners 
 the benefit of all the laws that have in view the protection 
 of person or of property" (Cour d'Appel de Bruxelles, 9th 
 June, 1873). This same jurisdiction, in a case of prodi- 
 gality, has been exercised by the Italian courts (Dulch^ v. 
 Pirola, 1st July, 1872) ; and in the case of Stocker Kirkhope, 
 decided by the Court of Appeal at Lucca, 1st Sept. 1875, 
 the Court laid down that in cases of incapacity in persons 
 who were domiciled or resident in Italy, there was jurisdic- 
 tion in the Italian courts to assume the administration of the 
 affairs of the incapax, but only if the courts of his own 
 country could have exercised a similar jurisdiction in the 
 circumstances that had occurred. In the case of interdiction 
 on the ground of prodigality, the French courts have followed 
 a similar rule, laying down that a process of interdiction wUl 
 be allowed to proceed in France if it is just and advantageous 
 for the interests of the incapax that it should do so (May v. 
 Sheppards, Cour de Caen, 20th Jan. 1873). 
 
 These were all cases where no competing appointment had 
 been made for the protection of the incapax by the court of 
 any other country, and they have been cited for the purpose 
 of showing that the interests of the incapax are of such 
 importance that the courts of the country where he is found 
 
Note R.] 443 
 
 will not hesitate to exercise a protective jurisdiction for his 
 behoof. But on the continent the status of guardianship 
 once vaHdly constituted will be recognised according to the 
 lex domicilii, wherever the ward may go, or wherever his 
 property may be, and no distinction will be taken between 
 real and personal property. In Austria, for instance, the 
 courts have refused to sanction a sale of real property situated 
 there, belonging to minors who were of foreign nationality 
 and domicile and under a foreign guardianship. The neces- 
 sary authority must be obtained from the court that is 
 charged with their guardianship (Supreme Court of Austria, 
 4th Jan. 1870). 
 
 In so far as domicile is taken as the criterion of jurisdiction, 
 the law of England and Scotland is in conformity with these 
 cases, for domicile and not nationality is in all cases taken by it 
 as founding jurisdiction. But the jurisprudence of England 
 and America stands alone in this, that they hold that if any 
 person incapax comes within their jurisdiction their courts 
 have power to take up the care of his person and the 
 management of his affairs, although a foreign guardian has 
 been already validly appointed : that they should have juris- 
 diction in cases of necessity to appoint, on the ground of 
 residence, without requiring a full domicile, is reasonable, 
 and is sanctioned by the principles of the continental deci- 
 sions cited above, and the courts of Scotland would, in pressing 
 cases, hardly hesitate to make such an appointment ad 
 interim. But the law of Scotland recognises, in so far as the 
 custody of the person and the management of the personal 
 estate are concerned, the appointment by a foreign court 
 without requiring any new appointment to be made or the 
 old one to be confirmed. In England, however, and in 
 America the courts maintain their rights of jurisdiction over 
 all such persons within their territory, and have exercised 
 them in such cases as Johnstone v. Beattie, 10 CI. and Fin. 
 42. But in more recent times the courts of England have 
 receded from this extreme position, and their attitude as 
 described by Mr. Westlake is this : — As regards the custody 
 of the person of one incapax, " now at least the English court, 
 in appointing a guardian or committee of the person, will 
 support the authority of the guardian or committee existing 
 
444 [JVote R. 
 
 under the personal law or jurisdiction, and not defeat it 
 unless it should be abused," and refers to cases in point : (cf. 
 also Wharton, § 260 ei seq.) ; as regards the estate, the foreign 
 guardian can sue and give receipts for personal property- 
 belonging to his ward, and it will therefore seldom be 
 necessary to appeal to the English courts to make a new 
 appointment for such purposes; The courts of Scotland, in 
 the case of lunatics as well as minors, will refuse to make any 
 appointment in the face of one already made by a foreign 
 court, to control the person or the personal property (cf 
 Fraser on Parent and Child, pp. 602 and 609). 
 
 In England, as in America, where real property is in 
 question, the appointment will be made by the court of the 
 country, and the administration of that estate will be regu- 
 lated by the law of the country where the real estate is 
 situated : ' ' There is no question whatsoever that, according 
 to the doctrine of the common law, the rights of foreign 
 guardians are not admitted over immoveable property situate 
 in other countries. These rights are deemed to be strictly 
 territorial, and are not recognised as having any influence 
 upon such property in other countries whose systems of 
 jurisprudence embrace different regulations and require dif- 
 ferent duties and arrangements" (Story, ^ 504). 
 
 On the continent, as 'the author states, the lex domicilii 
 wiU regulate the guardianship over immoveables just as over 
 moveables. 
 
 In Scotland the law is thus stated by Lord Fraser (p. 605): 
 " The practice in Scotch courts has been for some time to 
 appoint a special guardian to Scotch heritage belonging to 
 foreign wards ;" and the person so appointed will always be 
 a Scotsman within the jurisdiction of the court. In special 
 circumstances the courts have allowed a minor to nominate 
 as his curator a person outwith their jurisdiction, taking all 
 possible precautions and exacting undertakings that the 
 curator shall, in the matters of the curatory, submit to their 
 jurisdiction; but very special circumstances require to be 
 shown. Contrast the cases of Lord Macdonald (June 11, 
 1864, 2 M. 1194), where it was sanctioned, and Fergusson 
 (Jan. 25, 1870, 8 M. 426), where it was refused. "But in 
 regard to the administr-ation of guardians for lunatics, as well 
 
iVoteR, §107.] Mo 
 
 as that of guardians for minors, the question is yet undecided 
 whether the lex domicilii will be recognised as the law to 
 which the guardian is bound to conform in his dealings with 
 property situated in Scotland," belonging to a ward having 
 a foreign domicile (Fraser, Parent and Child, p. 609). 
 There are indications that the lex domicilii of the ward would 
 be held to regulate these (Lamb, 20th July, 1858, 20 D. 
 1323); but on the other hand, it is difficult to suppose that 
 an officer appointed by the courts of Scotland should have 
 wider or narrower powers according as the ward was by 
 domicile a foreigner of this or that country or domicile. 
 
 VI. Law of Succession. 
 
 A. Succession in General — Intestacy. 
 
 §107. 
 
 The law of succession prescribes how the property of one 
 person on his death passes to another. The rules of succes- 
 sion may be figured in the following different shapes : — 
 
 First, it might be the case that nothing but the actual 
 assets belonging to the estate of the deceased and his rights 
 should pass to the successor, and that all debts should be 
 discharged by the death of the person to whom they origin- 
 ally attached. Such a rule, which would make succession 
 merely a form for acquiring particular things and particular 
 rights, could never be satisfactory, except in a very low state 
 of civilisation — a state in which claims and debts existed 
 for a limited time only, where payment followed immediately 
 upon delivery, and in which credit was unknown : the exist- 
 ence of any claim would depend entirely upon the uncertain 
 length of the debtor's life, and the heir would no more be 
 under an obligation to pay the debts of his ancestor than 
 the person who had got any article from that ancestor by 
 purchase or by gift. 
 
 Secondly, the estate might pass as a whole to another 
 person, who would possess it precisely as the ancestor pos- 
 sessed it, and therefore take over the debts with it — in other 
 words, so possess it that the legal personality of the ancestor 
 
446 , [§ 107. 
 
 would be revived in the successor. This is the rule of the 
 Eoman law, and its result is the greatest security possible for 
 the creditor, because the existence of the debt is quite inde- 
 pendent of the life of the debtor, in so far as there is any- 
 one to take over the inheritance of the deceased as heir. 
 
 Lastly, we may figure an intermediate system : Certain 
 articles included in the succession, such as real property is 
 shown by its nature to be, are not affected by the debts ; 
 other assets of the succession are affected even after the 
 debtor's death by his Habilities, but in such fashion that the 
 things themselves are alone responsible, and the persons who 
 take, by virtue of the law of succession, are only bound to 
 discharge the debts in so far as their share of the succession 
 will suffice. This intermediate rule is the rule of the older 
 German law ;^ and it may be reconciled, too, with a more 
 advanced stage of civilisation, in which it is not uncommon 
 that claims of debt should exist for a considerable time, while 
 the creditor must have some security against the event of 
 the debtor's death.^ The creditor may trust his debtor 
 absolutely to the amount of the value of the property which 
 is subject to be affected by debt after the death of the debtor, 
 and still greater security is given if, as is the case in more 
 modem times, it is competent, under certain conditions, to 
 affect with liability for debts the specially important property 
 in immoveables. If the rule of the Roman law ensures in 
 the highest degree the creditor's safety, and gives his estate 
 the greatest elasticity, the rule of the Germanic law, without 
 overlooking the protection which the creditor needs, has at 
 the same time in view the protection of the successor against 
 a perpetuation of the liability for all time. The rule of the 
 Roman law, which is quite unnecessary for the protection of 
 the creditor, that all the successor's own resources and his 
 own separate estate, against which the creditor could have no 
 claim at the time the debt was contracted, should be made 
 available to the creditor, is not retained : but the heirs and 
 the family of the ancestor will not lose their right to the 
 important estate, which, as a rule, no ancestor desires to 
 
 1 Cf. Beseler, ii. pp. 486-87 ; Landlaw of Saxony, i. art. 6, § 3 ; Kraut, 
 § 171, No. 98. 
 
 2 The proof of this is, that this is still the rule of the law of Englaad. 
 
§ 107.] 447 
 
 witlidraw from them, unless there shall be some special 
 arrangement previously made to affect them. In other 
 words, there is in the German system what is partly a parti- 
 cular, partly a universal succession : the latter is applicable 
 to the moveable,* the former to the immoveable succession ; 
 but still particular debts may pass along with the immoveable 
 succession, if they are specially attached to it, and are in a 
 certain measure made real rights. 
 
 It is a necessary result of regarding the position of the 
 heir as a universal succession, by means of which the legal 
 personaHty of the deceased passes over to his heir, that this 
 transmission can only take place in conformity with the law 
 of the land to which this legal personality of the deceased 
 belonged at the time of his death — that is, the law of the 
 last domicile which he had.* 
 
 On the other hand, if his position is regarded as a parti- 
 cular succession, then, as in the law of things generally, it is 
 the law of the place to which the thing belongs that must be 
 applied. 
 
 The laws of aU civilised nations treat succession in move- 
 ables as we have seen as a universal succession ;^ the general 
 rule for decision here is therefore the lex domicilii. 
 
 ^ It is no essential of universal succession that the heir should be answer- 
 able beyond the amount of the succession. The truth rather is, that the 
 succession is regarded as a purely arithmetical quantity, which may just as 
 well result in a minus quantity as a plus (Of. Savigny, System, i. 383). The 
 conception of a universal succession is satisfied if the heir performs exactly 
 those prestations which the ancestor, if he had lived, was able to perform ; 
 that this is so is shown by the association in Eoman law of the beneficium 
 inventarii with' a universal succession. Just as the hereditas jacens repre- 
 sents the ancestor, although there can be no notion of responsibility beyond 
 the amount of the succession, so, too, does the heir, who represents the 
 ancestor only to a limited extent. According to Eoman law, if the heir 
 enters upon the succession that implies at once a new and independent obli- 
 gation on the part of the heir, quasi ex contractu, to pay the debts of the 
 succession, and this liability no one can incur, unless he is of status such as 
 to be able to bind himself by legal transactions. 
 
 * On the obligations of the heir over and above the sum of the inheritance 
 as an ohligatio quasi ex contractu, see infra, § 113. 
 
 ^ The conception of a universal succession is not defeated by the fact that 
 individual things belonging to the moveable estate are subject to some special 
 destination, any more than by the fact that legacies and trusts may be com- 
 bined with it. 
 
448 [§ 107. 
 
 Succession in real property is to be determined by the lex 
 domicilii, if it and the lex rei sites agree in regarding this 
 real property as a part of a universal succession embracing 
 the whole estate of the predecessor. If the lex domicilii 
 pronounces to the contrary, it will lay down no rules for real 
 property situated abroad, which it will hold to be an estate 
 quite separate from real property in this country and from 
 the moveables ; and, on the other hand, if the law of the 
 place where the thing lies holds succession in real estate as 
 a particular and not a universal succession, which need not 
 share the destiny of the rest of the estate, then the lex 
 domicilii cannot dispose of it, because the direct right in 
 individual things is always subject to the lex rei sitce,^ and 
 the estate cannot be all combined into a universal succession, 
 unless the lex domicilii and the lex rei sitce agree in uniting 
 it.^ The situation of the heir who is called by the operation 
 of the lex domicilii is exactly the same as if the foreign real 
 estate did not exist at all.^ 
 
 We are now to test the grounds advanced in support of 
 different theories;^ and in the first place, those that are said to 
 support a rule that the lex rei sitce alone will determine the 
 rules of intestate succession in immoveables, while on the 
 other hand the moveable estate is subject to the lex doTnicilii ; 
 
 ^ The law of the place where the administrative court lies has nothing to 
 do with the question. The judge is bound to decide who has the right in the 
 foreign estate by virtue of succession, and not to give a right to any one. 
 See, too, Kenaud. D. Privatr. § 42, ii. 3. 
 
 ' If, in spite of the fact that the hx rei sitm recognises only a particular 
 succession, real estate situated abroad is to be held at the domicile of the 
 deceased to be part of his universal succession, we must also, e.g., assert that 
 a Government can be called upon to deliver up an inheritance belonging to a 
 foreigner, of which, by virtue of the }us Albinajii (now no doubt almost 
 universally obsolete), it is in possession. But as a matter of fact no one has 
 ever thought of doing so, although an action for delivery of a succession so 
 confiscated might be all the more confidently looked for in early times in 
 Germany, since in that country even private persons exercised the right of 
 the Gabella. 
 
 * As to liability for debts, see infra, note 43. 
 
 ' In setting out the various theories I must deal with the particular problem 
 of intestate succession, which is the key-stone of the whole subject, since there 
 is not to be found in most of the authorities any exposition of the theory of 
 succession in general. 
 
§ 107.] 449 
 
 next those that are advanced to support the theory that the 
 lex domicilii exclusively supplies the rule.-^" 
 
 ^^ I have not been able to find any authority save Kori, Erorterungen, iii. 
 p. 19 (see, on the other hand, Wachter, i. p. 304), and the dissertation by 
 Zollius {de preferentia statutorum discrepantium), quoted in Schaffner, p. 175, 
 who maintains that moveable succession is subject to the lex rei sitce, a view 
 which is totally at variance with all regular intercourse among civilised States, 
 and makes the creditor's security as well as the right of the heir dependent 
 entirely on accident (see, on the other hand, Savigny, § 376 ; Guthrie, p. 
 275-56). The doctrine which many express, that the law of succession is a real 
 statute, is modified by the fiction which they presuppose, that moveables are 
 situated at the domicile of the ancestor (see supra, § 59-60). The Jus 
 Asdomicum mentioned by Dutch writers, which was in former times recognised 
 in some parts of Holland, and by which intestate succession in moveables was 
 regulated by the law of the place where the ancestor died, had reference only 
 to the inhabitants of these provinces (P. Voet, de stat. ix. c. 1, § 9 ; Vinnius, 
 ad Just. iii. 5), and does not contradict the notion of a universal succession. 
 The place of death is substituted for the place of domicile. When foreigners 
 are recognised as having legal capacity, and the Jus Alhinagii disappears or 
 dwindles into a duty upon succession, we hear of nothing but the rule of suc- 
 cession in moveables recognised by the lex domicilii. Savigny's view, that it 
 is only a milder form of the Jus Albi/nagii to determine the succession in move- 
 ables by the lex rei siice, may be disproved historically. Nor can it be urged 
 to disprove that the older writers held the theory of a universal succession, 
 that by their views even moveables could by appointment of the testator have a 
 permanent seat assigned to them as much as immoveables, and so be like them 
 subjected to the lex rei sites (Mevius, in Jus Lub. prol. qu. 6, § 20-4) ; Carpzo- 
 vius, Defin. forens. iii. const. 12, def. 13) ; what they there treat of is the 
 moveable pertinents of real property — e.g., the stocking of a farm. [By the 
 law of Bavaria intestate succession, both in moveables and real estate, is 
 regulated by the lex rei sitce, but with this will be combined the law of the 
 residence or actual domicile to determine in what cases it shall apply. The 
 American courts, too, have held that where an estate consists of property, debts, 
 and claims situated in different States, the sum of assets and liabilities is 
 separately made up in each State, the debts existing in any particular State 
 being deducted from the assets situated there, and the creditors having no 
 claim upon assets situated in another State, at least primo loco (Burbank v. 
 Payne, i. A. 15, 1865 ; Atkinson v. Rogers, xiv. A. 633, 1859), By the law 
 of England the personal property of a deceased person cannot lawfully be 
 possessed or sued for without confirmation in England (Westlake, § 57, p. 91), 
 and in the United States the executors of a foreigner must obtain confirma- 
 tion in every State where they propose to recover or administer property, 
 Chiapelle v. Oouprey, 8 L. 85. Confirmation in Scotland is also required by 
 Scots law to give a title to administer property in moveables situated there. 
 Where a grant of administration has been made in England, even although 
 that be merely auxiliary to a foreign grant, the English courts will allow any 
 
 2G 
 
450 [§ 107;. 
 
 In tte first place it is urged in favour of the general appli- 
 cation of the lex rei sitae, that the sovereignty of the State 
 where the property lies cannot suffer any foreign law to be 
 applied to determine the succession to it. But moveable 
 property, so long as it is in the territory of any State, is 
 subject to its sovereignty as much as immoveable. But since 
 in spite of that it is not proposed to apply the lex rei sitce to 
 moveables, the attempted inference must fail. The lex rei 
 sitae mnj shut out the application of foreign laws of succes- 
 sion ; but that these should really be shut out, it must be dis- 
 tinctly shown that the lex rei sitae means to do so.'^^ This is 
 said to be shown by the fact that the law regulating succession 
 has most strongly in view the property concerned, the des- 
 tination of which it is to fix. But it might as well be said 
 that these laws of succession settle what persons are to take 
 the succession, and against what persons the creditors of the 
 deceased are to claim. This chain of reasoning is no better 
 than the distinction of Bartolus so often criticised by the 
 ■older authorities (c£ supra, § 4).^^ 
 
 creditor to seek his remedy in England against the English assets, so that an 
 administrator in such a case cannot in safety pay over the estate to the 
 foreign heir until all claims of debt are discharged (Preston v. Melville, viii. CI. 
 and Pin. 1).] 
 
 11 See to the opposite efifect, Mittermaier, in the Zeitschrift fiir Rechtsw. des 
 Auslandes, vol. ii. p. 272 : " The public interest of a State, in which a real 
 estate is situated, can go no further than to require that every person who 
 seeks a real right in that estate shall observe the provisions under which alone 
 the lex loci rei sitos recognises such rights. . . . But it is an empty question 
 to ask what public interest is concerned in determining whether A, who lives 
 abroad, or B is to take a real estate in Baden as heir of C." Of. Wachter, ii. 
 p. 198. 
 
 12 For the lex rei sitce: Bald Ubald, in L. 1, 0. de S. Trin; Molinseus, 
 in L. 1, C. de S. Trin ; Argentrseus, No. 24 ; Burgundus, ii. 16 ; Eodenburg, 
 ii. 2, § 1 ; Abraham a Wesel, de Connub. bon. Societate, tract i. 1, No. 118 ; 
 Christiansens, Decis. Tris. ii. dec. 4, No. 2, iv. 8, defin. 7 ; Petrus de Bellaper- 
 tica, in L. 1, C. de S. Trin. ; Petr. Peckins, de Test. Conjug. iv. c. 28, No. 8 ; 
 Vinnius, Select Jur. Qusest. ii. c. 19 ; Colerus, de Process. Execut. i. 3, No. 230 ; 
 P. Voet, ix. 1, No. 3 ; No. 50 ; Mevius, Decis. ii. 99,,and Jus. Lub. proleg. qu. 
 6, § 10 ; Everhard. jun., Consil. vol. ii. eons. 32, No. 10 ; Consil. xxviii. 
 No. 78 ; Mynsinger, Observ. Cent. v. obs. 19 ; Cocceji, Defund. Tii. 14, 19 ; 
 Carpzov. Defln. for. P. iii. const. 12, def. 12 ; Ziegler, Dicastice Concl. xv. No. 
 28 ; J. Voet, de Stat. § 21, and in Dig. xxxviii. 17, No. 35 ; BouUenois, i. p. 
 223 ; ii. p. 383 ; Hofseker, Princip. § 140 ; Ricoi, p. 550-51 ; Hauss, de 
 
§ 107.] 451 
 
 It has been attempted, in the first place, to find a founda- 
 tion for the opposite view in this, that the law of intestate 
 succession merely expresses what may be presumed to be the will 
 of the deceased : further, that it must be assumed that the 
 deceased knew the law of his own domicile, and in dying without 
 executing a will had that law before his eyes, and that it 
 tberefore must rule the disposition of his whole estate.^^ But 
 it is quite incorrect to refer the rules of intestacy to the pre- 
 sumed will of the testator : a proof to the contrary is the 
 existence in Roman law of heirs that must be recognised " — a 
 provision by which an order of succession is introduced which 
 not merely runs counter to the presumed will of the deceased, 
 but is contrary to his plainly expressed will : a further proof 
 is that by older Germanic law testaments and dispositions 
 mortis causa were not known, and the ancestor could not as 
 a rule defeat the rights of his nearest heirs in heritage with- 
 out their consent, even by a disposition inter vivos.^ 
 
 Savigny modifies this reasoning in this respect, that he 
 does not seek to establish the order of intestate succession 
 upon what may be presumed to be the wish of particular 
 persons for their own individual circumstances, but bases it 
 upon a general presumption to which the law of each differ- 
 ent territory gives a different expression, according as it con- 
 ceives the nature of the relations of the various members of 
 a family to require. In this general sense, however, every 
 rule of law rests upon what it is reasonable to suppose is the 
 wish of the person concerned. There is no peculiarity or 
 
 Princip. p. 36 ; Kori, Erorterungen, iii. p. 19 ; Mailher, de Chassat, No. 58 ; 
 No. 292 ; Wheaton, § 81, p. 109 ; Foelix, i. § 66, pp. 143-44 ; Burge, iv. p. 154 ; 
 Story, § 483 (and the practice in England and the United States) ; Deman- 
 geat on Foelix, i. p. 144. The passages cited from the Eoman law, L. un. 1. 
 ubi de hered. 3, 20, Nov. 69, cap. 1, deal only with jurisdiction, and prove 
 nothing as to the'application of the local law of the thing. 
 
 13 So, too, Bartholom. de Saliceto, in L. 1, C. de S. Trin. No. 14, and in more 
 recent times, Gliick, Intestaterbfolge, pp. 159-64 ; Gunther, p. 733. 
 
 1* This law is founded upon the law of the succession of such heirs ab 
 intestate. According to the theory given above rules of succession against the 
 will of the testator must depend upon a rule of succession which proceeded 
 from his own will. 
 
 1^ Of. Walter, Rechtsgeschichte, ii. § 469. See, on the other hand, Schaffner, 
 p. 171 ; Beseler, ii. p. 523. 
 
452 [§ 107. 
 
 characteristic specially belonging to the law of succession, 
 and that view will not support the application of the lex 
 domicilii to that law unless the lex domicilii is also to be 
 applied to influence every rule of law. 
 
 Further, the application of the lex dom,icilii cannot be sup- 
 ported on the ground that the law of succession depends 
 upon the personal properties of the individuals concerned, 
 and is, in fact, a law of status, or an enlargement of the per- 
 sonality of the ancestor. ^^ There is nothing to show either 
 that the law of succession is part of the law of the ancestor's 
 status, or that anything affecting status is, as a rule, to be 
 settled by the lex domicilii : again, all rights may be repre- 
 sented as constituting an enlargement of personality.^^ The 
 lex domicilii, therefore, would have to be applied in every 
 case.''* 
 
 But, in the third place, there is no more force in the asser- 
 tion that the State in laying down rules of succession has 
 persons only, and not property, in view ; and that the laws of 
 succession, therefore, affect only the subjects of a State, 
 but affect them in all questions pertaining to their property.^* 
 It might just as reasonably be said that these laws affect 
 things only, and that the lex rei sitce should therefore be 
 applied. 
 
 The proposition, however, that the succession of an heir is an 
 universal succession, and that in consequence the lex domidlii 
 must be applied, is fully established in the Koman law and 
 the systems that follow it.^" All that prevents it from being 
 a general rule is that there may actually be systems resting, 
 as we find in the case of the law of England at the present 
 day, upon an advanced stage of civilisation, which do not 
 recognise the principle of universal succession with reference 
 to immoveable succession.^^ Savigny, to get rid of this objec- 
 tion, argues that the law of inheritance and universal succes- 
 
 1' Maurenbrecher, i. § 144 ; Phillips, i. pp. 190-01. 
 
 " Savigny, i. p. 334. 
 
 1' See to the contrary, Wachter, ii. p. 196. 
 
 " Wachter, ii. p. 198. 
 
 20 This ground is taken by older writers— e.sf., Barthol. de Saliceto, in L. 1, 
 0. de S. Trin., and is urged by most of the more modern German authors. 
 
 21 Cf. Wachter, ii. p. 197. 
 
§ 107.] 453 
 
 sion are identical ; the latter merely supplies the form which 
 the other must take, and the technical language in which it 
 must be expressed, but is no pecuhar rule 6f Koman law. 
 The true state of the case, he says, is rather that the law of 
 succession has, in the positive laws of many States, remained 
 stationary at a lower grade of development, while in Eoman 
 law it was at an early date subjected to the treatment which 
 every positive law must inevitably attempt to reach. ^^ No 
 doubt, as we have noticed, it is true that singular succession 
 in its pure form seems to be irreconcilable with an advanced 
 stage of civilisation, and is not found among any civUised 
 people ; but the combination of a universal and a singular 
 succession, such as is recognised in older German law, and in 
 the law of England at the present day,^* may exist under 
 certain modifications in conformity with the claims of modern 
 commerce and intercourse, and cannot be dismissed as an 
 imperfect theory of legal relations.^* 
 
 Objection, too, has quite properly been taken to the 
 exclusive application of the lex domicilii, on the ground that 
 there are kinds of real property in reference to which 
 commonly received theories allow the lex rei sitoe alone to be 
 apphed f^ e.g., feudal and entailed holdings, and in many 
 countries the ancestral property of noble families, manorial 
 lands, and peasant proprietories. Savigny cannot refuse to 
 recognise the force of this objection.^" Feudal and entailed 
 estates are similar, he says, to the Eoman usufruct ; they do 
 not belong to patrimonial estate, and so do not fall imder 
 
 22 § 376 ; Guthrie, pp. 274 and 278. 
 
 ^ Succession in real property is by the law of England quite separate from 
 that in moveables. The law of succession is looked upon as a mere modits of 
 acquiring property, and Blackstone speaks of succession in the same book in 
 which he treats of sale and prescription. The heir in heritage was in earlier 
 times not liable, even subsidiarly, for all debts — i.e., he was not liable for 
 simple contract debts. In modern times this has been altered, first for persons 
 carrying on trade, and then for all persons. The heir cannot, however, be 
 answerable for more than he took as heir. Cf. Stephen, i. chap. xi. pp. 429-30, 
 and ii. chap, vii; p. 201. 
 
 ^ Of. Gerber, § 248, note 2. 
 
 25 P. Voet. 9, 1, §§ 5, 6 ; Kodenburg, ii. 1, C. 5, § 17 ; J. Voet, Digressio de 
 fendis ; Seuffert, Comm. i. p. 258, note 17 ; Boullenois, i. pp. 880-81. 
 
 20 § 376 ; Guthrie, pp. 278-80. So, too, Holzschuher, i. p. 81. 
 
454 [§ 107. 
 
 succession ; these are special legal categories applying to parti- 
 cular portions of real estate, and as such, therefore, must be 
 governed in every case by the lex rei sites. The special 
 treatment appHed to other special kinds of landed property 
 rests upon political considerations, which are the object of the 
 laws determining the order of succession in them. It is not 
 ' the most appropriate destiny which, as in the case of the 
 ordinary law of succession, is to be given to the estate of 
 deceased subjects ; but the object sought to be attained is the 
 preservation of the estate, specially by the exclusion of, 
 daughters, by regulations as to indivisibility, and as to the 
 right of the eldest, or of younger sons to succeed. But,' 
 although by modern law entails may be regarded as a kind 
 of usufructus, the same thing can by no means be said 
 of feudal holdings. The right of the vassal in his feu is 
 something far more than a right of usufruct, and the order 
 of succession in feus is in reality nothing but the old German 
 order of succession, modified by the rights of the overlord. 
 Succession in a feu transmits the whole rights of the property 
 to the person who takes f he does not take over all the debts 
 of his predecessor, but those only which are specially connected 
 with the feu, and the principle is just the principle of old 
 German law as to succession -in real estate. As regards, 
 the second kind of estates, we have there the old German law of 
 succession pure and simple, which is only now to be found in 
 these holdings, although, no doubt, in the case of entailed 
 property, it exists with certain modifications introduced by 
 Eoman law.^' This is the explanation of the application of 
 the lex rei sitce ; there is no need to assume a political 
 end. No doubt in all laws we may fancy that there is some 
 poHtical end, but yet we do not on that account always apply 
 the lex rei sitce. If, for instance, in a country where the 
 principle of an universal succession and the common Eoman 
 law of succession are recognised, the eldest son must in all 
 circumstances get three-fourths of the whole property, 
 
 ^ Cf. Gerber, § 266. 
 
 ^ Nor can the application of the lex rei sitce be grounded on the argument 
 that we are here concerned with a prohibitive law (see Gliick, Pandects, i. pp. 
 292-93). Cf. supra, § 33. 
 
§ 107.] 455 
 
 there can be no doubt that this law has as its object the 
 maintenance of a large estate, particularly a large landed 
 estate in a family, since there never could be many people in 
 a position to leave any but their eldest son a landed estate if 
 that eldest son is to take three-fourths of the whole property.^* 
 But yet such a law cannot apply to a foreigner, who happens 
 to possess an isolated estate in that country ; its object is to 
 regulate the whole property, and that cannot be done unless 
 the personality, by which the property is held together, 
 belongs to that State. 
 
 Lastly, we have proof from history of the accuracy of the 
 theory we have adopted — viz., that neither the lex domicilii 
 nor the lex rei sitce^^ should rule all cases — in this fact, that 
 those authors who are more familiar with the principles of 
 German law favour the lex rei sitae, and those who have 
 Koman law in view, the lex domicilii; while there are 
 many adherents of the latter theory, who require that the lex 
 rei sitae should be applied in such exceptional cases as where 
 they have to deal with rules of German law, such as the 
 exclusion of daughters from succession to heritage or the 
 rules of primogeniture ; a result which shows a practical 
 instinct, although they defend it upon erroneous grounds, 
 such as that they have here to deal with a statutum 
 odiosum.^^ 
 
 In Germany, at the present day, the principle of an 
 universal succession found in Eoman law has been adopted in 
 the various particular systems,^^ and with it the view, which 
 
 ^ Especially in the law of succession is it always possible to figure some 
 political object. See Demangeat, i. p. 145. A rule of particular succession 
 is no doubt best adapted to ensure that a particular estate shall be kept in a 
 family or kept intact. But yet in such cases it is the legal form and not the 
 political end which that form seeks to attain that is the ground upon 
 which we apply the lex rei sitm. 
 
 ^ The Sachsenspiegel (Landrecht, i. 30), has logically laid down this rule : 
 "Jewelk inkomen man untveit erve binnen dem lande to sassen na des landes, 
 reekte, und nicht na des marines, he si heier oder svaf oder franhe.'' 
 
 21 See, for instance, Bartholom. de Salic, as cited. Albert Brun. de Stat. 
 art. 6, § 2, 16 (in den Tractatus ill let de statutis, fol. 165). Bouhler, chap. 
 24, No. 159, chap. 30, No. 1. Alderanus Masoardus, Concl. 6, No. 100. 
 
 32 Beseler, ii. p. 489 ; Gerber, § 249, make an exception only in the case of 
 the holdings mentioned above. 
 
456 [§ 107. 
 
 now prevails, that the lex domicilii should always rule.'^ In 
 France, before the Code NapoUon was publislied, the older 
 German law had been retained in the Coufumes of the 
 northern provinces,^* and that will iaccount for the pre- 
 ponderating weight of authority in favour of the lex rei sitce ; 
 but there is no justification left for such a view since the 
 publication of the Code Napoldon,^^ which, like the AUgemeine 
 
 53 Besides those already mentioned, the following favour the lex domicilii : 
 — ^Alb. de Rosate, Lib. i. qa. 46, § 8 ; Alexand. Tartagn. Imol. Consil. Lib. v. 
 cons. 44 ; Puffendorf, Observat. vol. i. obs. 28, § 5 ; Boehmer, L E. Protest, iii. 
 tit. 27, § 15 ; Seufifert, Comment, i. p. 258 ; Goschen, Civilr. i. p. 112 ; Holz- 
 schuher, i. p. 80 ; Wening Ingenheim, § 2 ; Miihlenbnich, § 72 ; Eeinhardt,, 
 i. 1, p. 31 ; Mittermaier, § 32 ; linger, i. p. 199 ; Bluntschli, i. § 12, 5 ; 
 Oppenheim, p. 395 ; Beseler, i. p. 153 ; Eichhorn, § 36 ; Gerber, § 32 ; Ross- 
 hirt, Civilr. § 6 ; Thol, § 79 ; Judgment of the Supreme Court at Berlin, 4th 
 Oct. 1844 (Decisions 10, p. 177) ; Supreme Court of Appeal at Liibeck, 10th 
 Dec. 1828 (Seuffert, 4, p. 165) ; 28th Feb. 1857 (Frankfurt Collection, 3, 
 p. 112). (See, too, the judgment of the same Court reported by Seuffert, 2, 
 p. 447) — It is the domicile obtained with approval of the Government, and 
 not the place of political citizenship that is to be considered. Judgment of 
 the Court of Cassation at Paris, 7th Nov. 1826 (Sirey, 26, 1. p. 350-03); 
 Hagemann, 6, p. 140 (Judgment of the Supreme Court of Appeal at Celle, 
 23d Dec. 1817). It is the actual domicile, and not the nationality or home 
 of the person concerned that is to rule, according to a decision of the Supreme 
 Court of Appeal at Liibeck, 21st March, 1861 (Seuffert xiv. p. 164). See, on 
 the other hand, supra, § 30, note 22. 
 
 ^ From this comes, as Bouhier, chap, xxiii. No. 12, chap. xxvi. No. 71, with 
 some sadness says, the ancien prdjugd enracine of the older French authors, 
 que toutes les coutumes sont rielles. Bouhier, as President of the Parliament 
 at Dijon, stood closer to the Roman law. 
 
 35 Cf. Code Civil, arts. 732, 870, et seq. ; Prussian A. L. R. i. 2, § 34, i. 9, 
 § 350, i. 17, § 127 et seq.j Austrian A. G. B. §§ 532, 547-78. In opposition to 
 these provisions, rules such as those of the Code Civil, art. 3, § 2, " Les 
 invmeubles <ndme ceux possides par des Grangers, sont rigis par la loi fran- 
 caise," Prussian A. L. R. § 23, and Austrian A. G. B. are applicable merely to 
 real rights in particular parcels of heritage (the reverse is assumed in a judg- 
 ment of the Oour Royale of 7th April, 1833, and by Bornemann, Prussian 
 L. R. L p. 53 ; see, on the other hand, Koch on §§ 23 and 32 of the Intro- 
 duction to the Prussian L. R.), for the law makes a marked distinction 
 between the incorporeal right to the succession as a universitas, and the 
 right to particular corporeal articles. It is a very unfortunate idea iipon 
 which the second article of the French Statute of 14th July, 1819, rests : that 
 article, while it abrogates the 726th article of the Code Civil by which 
 foreigners are declared incapable of succession, goes on to provide " dans le 
 cas de partage d'une mime succession entre les coheritiers Strangers et francais, 
 
§ 107.] 457 
 
 Preusslsche Landrecht and the Allgemeine (Esterreichisclie 
 Gesetzbuch, consistently adopts the principle of a universal 
 succession : the only explanation is that the old mode of 
 thought is still cherished, while no weight is given to the 
 legislative changes.^^' ^^ 
 
 Schaifner rejects the view we have adopted, although he 
 admits it to be logically correct, and announces that he is in 
 favour of the lex rei sitae, because, on the one hand, so simple 
 a thing as the law of intestate succession should not be made 
 dependent upon such distinctions ; and, on the other hand, 
 because, if the lex domicilii is to be the rule, there must be 
 a new exception when we have to deal with a prohibitory 
 enactment. The latter difficulty has no application to the 
 
 ceux-ci priUveront sur les biens situis en France une portion igale a la valeur 
 des biens dont il seraient exclus, a guelque litre que ce soit, en vertu des lois et 
 coutumes locales," and, confusing what is termed formal reciprocity with 
 material reciprocity, it invades a department of the law which both the spirit 
 and the reason of French law give over to the foreign law, whether the lex 
 domicilii or the lex rei sitce is to be applied to it. The rule would be just 
 and adequate if it were limited to the case of French people who should, as 
 such, be exposed to disadvantages abroad. This rule does not contradict in 
 the least the view we have adopted, because if it is properly interpreted accord- 
 ing to the plain sense of. the words used, it must be applied to moveables 
 just as much as to immoveables (Of. Demangeat as cited, the judgment of the 
 Court of Cassation at Paris, there quoted of date 21st March, 1855, and Gand, 
 No. 310), and seems to be nothing but an exclusive privilege of French co-heirs, 
 as appears from a judgment of the Court of Cassation at Paris, 30th March, 
 1850, where there was a concurrence of foreign co-heirs, and the lex domicilii 
 was applied to regulate the real estate in France. [Cf. infra, p. 480, note.] 
 
 ^ A judgment of the Court of Cassation at Paris, 14th March, 1837, 
 (Sirey, 37, 2, pp. 195-99), proceeds directly iipon the older French practice. 
 Both courts of first instance had in this case given a contrary decision. 
 
 3' In Austria, by a decree of the Court of 22nd July, 1812, and still more 
 plainly by a law of the 9th August, 1854, it is distinctly recognised as the 
 duty and the right of the Austrian courts to take up the regulation of the real 
 estate of a foreigner, and the lex rei sitce is thus applicable by direct legislative 
 enactment. The most puzzling complications must result from this confusion, 
 for the idea of a universal succession is deeply rooted in the Austrian 
 Statute Book, see § 531. (Law of 9th August, 1854, § 2 : "The administra- 
 tion of the real property of a deceased foreigner, which is situated in Austrian 
 territory, belongs entirely to the Austrian courts, to which the law assigns 
 such questions where its own citizens are concerned, and therefore the rights 
 of all concerned must be attended to in accordance with Austrian law." See 
 Unger, i. p. 199.), 
 
458 [§ 107. 
 
 view we have adopted, and the former we can meet by 
 remembering that the question, whether the lex rei sitae 
 regards succession as universal, is easily answered ; and, 
 where the lex domicilii and the lex rei sitae both regard it as 
 Universal, it is only when we propose to apply the lex rei sitae 
 that difficulties arise. Savigny (§378; Guthrie, p. 288) 
 gives the following illustration with reference to this matter : 
 — An inhabitant of Berlin dies intestate, leaving a widow and 
 several near relations of different degrees ; the estate consists 
 of landed property near Berlin and in Silesia, a house in 
 Ehrenbreitstein, and a house in Coblenz ; besides that, the 
 deceased has many personal debts, which, of course, affect all 
 parts of his estate. According to the theory of our opponents, 
 no fewer than four different systems of law must regulate the 
 succession to these parcels of real property, and each of them 
 may give its parcel to a different heir ; there would, in truth, 
 be four inheritances, regulated in the Mark Brandenburg by 
 the Joachima of 1527, by which the widow has right to one 
 half of the combined estate of herself and her husband, — in 
 Silesia by the AUgemeine Landrecht, in Ehrenbreitstein by 
 Eoman law, and in Coblenz by French law. If, on the other 
 hand, universal succession is not recognised by the lex 
 domicilii, or, it may be, by the lex rei sitae, and, while 
 therefore some debts are seen to be a special burden upon 
 the real estate, while others have nothing at all to do with 
 it, the greatest confusion would arise if the lex domicilii were 
 generally applied, just in the same way as if, in the case of a 
 feu, feudal and allodial debts were all thrown together.'^ No 
 doubt, if we found a case — which, according to the principles 
 of Germanic law explained above, could only be counted an 
 abnormal state of matters — where there was no universal 
 succession, but yet the debts fell equally upon the moveable 
 and real estate, then, in this case, the only expedient left 
 would be a taxation and apportionment ; but that would be 
 
 38 Cf. Vattel, ii. ch. 8, § 100: " Les biens qu'il (I'dtranger) dilaissem mouranf, 
 dans wn, pays dtranger, doivent naturellement passer b, ceux qui sont heritiers. 
 Mais cette regU ginirale n'empkhe point, que les biens imvmeubks ne doivent 
 suivre Us dispositions des lois du pays cC ils sont situes. Eenaud, i. § 42, 
 ii. 3 ; and Kierulfif, 79, 80, take our view. 
 
§ 107.] 459 
 
 due not to any error in our theory as to tlie collision of legal 
 systems, but solely to the individual territorial system. 
 
 The following cases may serve to illustrate our meaning. 
 By the law of Scotland heritable bonds, which are obligations 
 for payment of money secured by hypothecating or creating 
 another real right over heritable estate,^' fall upon this estate 
 primarily, while in England the law makes the moveable 
 estate principally liable for the payment of such obligations. 
 If then a domiciled Englishman who owns req,l estate in 
 Scotland has granted such an heritable bond over it, our 
 theory will make the Scottish heir in heritage answerable 
 without recourse against the English representative in move- 
 ables. By the terms of the bond the obligation is closely 
 attached to the heritable subject, and becomes a real burden, 
 which has the character of a personal debt only in a sub- 
 sidiary sense. It has been so decided in England, upon 
 what is certainly a singular ground — viz., that the disability 
 of the Scottish heir to require the heirs in personality to relieve 
 him of the debt follows him to England.*" Conversely, if the 
 real estate is by the lex rei sitae not answerable fbr pay- 
 ment of the debt, this is explained by the fact that the heir 
 in heritage was originally only responsible for debts which 
 had been created a real burden upon the estate, but that in 
 later times he took the position of a cautioner, himself bound 
 along with the principal debtor. He has, therefore, recourse 
 against the foreign heir in solidum, even although the foreign 
 law would allow the debt to attach to both moveable and 
 immoveable estate ; just as the successor in a feu, who pays 
 what is subsidiarily a debt upon the feu, has recourse against 
 the heir who takes the allodial estate." 
 
 ^ Story, § 366. 
 
 " Story, §§ 487-78. 
 
 *" In the result, Story, § 489c., and Pothier des Successionis, eh. 5, § 1 ; 
 Barge, ii. p. 85, iv. pp. 724-25, 732-33 ; Merlin, Rdp. Dette. § 3, iv. ; Bouhier, 
 oh. 29, No. 59, ch. 24, No. 186, are agreed. Story, § 486, reports the follow- 
 ing case : — " A person domiciled in England died intestate, leaving real estate 
 in Scotland. The heir, who was one of the next of kin, claimed a share of 
 the personal estate. To this claim it was objected that by the law of Soot- 
 land the heir cannot share with the other next of kin in the personal pro- 
 perty of an intestate except on condition of collating the real estate ; that is, 
 bringing it into a mass with the personal estate, to form one common subject 
 
460 [§ 107. 
 
 The matter is quite otherwise if there is a valid testament 
 in existence, since the question there is which of the heirs 
 the testator intended should bear the debts. *^ 
 
 The question whether any particular thing is to be held 
 moveable or immoveable is to be determined by the lex 
 domicilii, if that is the law that regulates the succession, but 
 by the lex rei sitcn in the opposite case ; ^ in the latter case 
 the question must be whether it is to be held to be a per- 
 tinent of some other thing, in which case of course the lex 
 rei sitcB must be applicable. 
 
 Capacity to take is, as a part of legal status and capacity, 
 according to the principles expounded above, § 45, subject 
 to the law which in other respects determines questions as 
 to the succession — i.e., the lex rei sitce or the lex domicilii 
 of the deceased.** Some authorities *^ make the lex domicilii 
 of the heir or of the legatee the rule ; but, on the one hand, 
 this rests upon a confusion between the capacity to act and 
 legal status, which cannot be approved of ; and, on the other 
 hand, upon the theory that the voluntary entry into a 
 religious order, which forbids those who come under it to 
 acquire anything by inheritance, — the case which is generally 
 taken as illustrative of the principle, — must be held to be a 
 renunciation of the succession.*^ 
 
 of division. It was determined, however, that he was entitled to take his 
 share without complying with that obligation." This decision, too, is right. 
 The Scotch and English estates form two distinct and separate subjects, which 
 stand to one another just as the succession to two different persons would. 
 *2 Ct infra, § 110, and Story §§ 528-29, 490-91. 
 
 *^ Supra, § 62. Most authorities make the lex rei sites the general rule 
 here (Story, § 447 ; Beseler, i. p. 154). This is not quite accurate ; if, for 
 instance, the succession is universal both by the law of the domicile and the 
 lex rei sites, but the lex domicilii provides that the real estate must go to 
 some privileged heir for a consideration, the lex domicilii must decide whether 
 any consideration is to be given for any particular thing. 
 
 ** Hert, iv. 13, 50 ; Bartolus, in L. 1, 0. de S. Trin, Nos. 38, 40 ; Argent- 
 rseus, Nos. 17, 18 ; Burge, iv. pp. 155, 217 ; Oppenheim,p. 396 ; Judgment of 
 the Supreme Court of Appeal at Kiel, 2nd. Feb., 1853. 
 
 *^ Holtzschuher, i. p. 80 ; Unger, i. p. 200, note 61. BouUenois, i. p. 66, 
 proceeds quite illogically ; he says that the lex domicilii can make a man 
 incapable of taking anywhere, but cannot give him capacity to take every- 
 where. 
 
 *' See Hert, iv. 42. Walter, § 43, makes this distinction : " By the law of 
 his domicile a monk cannot take by succession ; this has no effect in the 
 
Note S.] 461 
 
 Note S, 0% § 107. 
 
 [The law of the domicile of the deceased, or the deliver- 
 ance of its courts, is universally regarded as the law that 
 shall regulate the rights of succession and administration in 
 moveables belonging to him. In England the right of ad- 
 ministration and the beneficial interest are both so determined 
 — Westlake, §§59 and 112, pp. 92 and 124 ; subject to 
 this exception, that where no executors are appointed by the 
 will, and the grant of administration is therefore to be made 
 to those who are interested in the beneficial succession, the 
 English practice will be followed in selecting the grantees, 
 subject to referring the question of beneficial interest to the 
 law of the deceased's last domicile (Westlake, § 69, p. 96 ; 
 Wharton, § 610). The law of America proceeds on the same 
 principles, as does also the law of Scotland (Alexander's Prac- 
 tice of the Commissary Courts, p. 44). As to the liability of 
 the assets in one country for debts due to foreign creditors, 
 cf. supra, note on p. 449. The rule of the situs is by all 
 of these legal systems recognised in questions of succession 
 to real property. 
 
 Domicile and not nationality is in France regarded as 
 regulative of the right of administration and of succession, 
 — " There is no law to prevent a foreigner settled in France, 
 although he may not have obtained a license such as to con- 
 fer upon him the capacity for civil rights, from acquiring and 
 retaining a domicile of fact, that draws with it certain prac- 
 tical consequences — e.g., the regulation of succession" (C. de 
 Cassation, Specht v. Specht, 7th July, 1874). The mere 
 fact of death in France will not suffice if there is no animus 
 remanendi (Le Baudy, Trib. Civ. de la Seine, 25 th June, 
 
 country where the institution of monasticism is positively rejected, but it 
 has where it is known, although this incapacity may not be attached to it." 
 Savigny (§ 377 ; Guthrie, p. 283) makes the capacity of the heir or legatee 
 dependent on the law of his domicile. But he makes exceptions in cases 
 where there are laws of a coercitive character — e.g., civil death or disability 
 to take on account of heresy, and admits the lex fori in such cases as ihe 
 rule. But if any laws can be held coercitive, the laws as to incapacity to 
 inherit must be ; and therefore in Savigny's view the lex fori must be the 
 general rule. 
 
462 [Note S, § 108. 
 
 1880). (Cf. also Poupardin'U. Garforoukel, 14th March, 1879, 
 Trib. Civ. de la Seine.) 
 
 A residence for many years, the possession of a trading 
 establishment, and marriage in France to a Frenchwoman, 
 have together been held sufficient to constitute a French 
 domicile (Becker v. Chantreuille, Bourdeaux, 1 9th Aug. 1 879). 
 Such a domicile will give right to the French courts to regu- 
 late the administration of real estate situated abroad, and 
 the French courts will recognise the right of foreign admini- 
 strators to deal with real estate in France (Vierry Miez, C. de 
 Besancon, 23rd July, 1875). As a means of preserving 
 estate situated in France the French courts will nominate a 
 judicial factor during the dependence of a litigation in the 
 courts of another country as to the right of succession to the 
 estate, even although the estate be moveable and the domicile 
 of the deceased be abroad (Falrez v. De Gonzo, Trib. Civ. de 
 la Seine, 31st March, 1876). 
 
 In Italy residence for any considerable time will suffice to 
 place the whole succession, heritable and moveable, under 
 Italian law as an universal succession ; no such intention of 
 permanent residence as is required to constitute a domicile, in 
 the English sense of that term, is necessary (Court of Appeal 
 at Lucca, 18th June, 1880). It will be remembered that in, 
 questions of status and capacity the law of Italy holds the 
 principle of nationality to be regulative.] 
 
 B. Mortis Causa Deeds and Contracts as to Succession. 
 
 § 108. 
 
 Mortis causa deeds and contracts as to succession are 
 in truth operations of the will of the testator upon the 
 statutory order of succession, whether it be that the legal 
 heirs are thereby entirely excluded, and an arbitrary series 
 of heirs instituted, or that subordinate provisions modify in 
 isolated points the statutory order of succession, which would 
 but for them take effect. The result of that is, that testate 
 succession is admissible when the law which regulates the 
 succession ah intestato permits this operation to take effect, 
 and so mortis causa deeds will depend upon the lex 
 domicilii of the testator or the lex rei sitce, according as the 
 
§ 108.] 463 
 
 law which would regulate intestacy speaks of a universal or 
 a particular succession. The question of capacity to make 
 such a deed — i.e., the recognition by law of a deliberate 
 settlement of succession, expressed in some particular form — 
 has been left to the determination of the lex rei sites or the 
 lex doTnicilii, according as the author dealing with the sub- 
 ject holds that intestate succession is determined by the one 
 or by the other.^ 
 
 Some authors, however, moved by the expression " capacity" 
 (hahilitas, capacitas, capaciU), have been led illogically to 
 apply the lex domicilii in aU questions of this class,^ although 
 ia other respects they are in favour of the lex rei sitae. Some 
 assistance has no doubt been given to this tendency by the 
 fact^ that, on the one hand, if the territorial system which 
 regulates the succession makes the capacity to execute a will 
 dependent upon freedom from paternal control, the lex domi- 
 cilii must, of course, determine whether this is the case or 
 not ; while, on the other hand, many authors go so far as to 
 apply the lex rei sitae, to the collision of systems of law, both 
 of which treat succession purely as an universal succession, 
 and thus make the wiU, which in this case from its very 
 
 1 The following support the Ux rei sitae : — Bartolus, Nos. 38-41 ; Burgun- 
 dus, i. 45 : P. Voet, de Stat. iv. c. 3, § 12 ; Huber, § 15 ; Hert, iv. 22 ; Gaill, 
 Observ. ii. observ. 124, No. 12 ; Stockmans, Decis. Brabant, decis. 125, No. 
 10 ; Eodenburg, ii. 5, § 7 ; Vinnius, Select Juris. Quaest. ii. e. 19 ; Oocoeji, 
 vii. § 4 ; Merlin, E^p. Testament, i. § 5, art. 2, No. 2 ; Kicoi, pp. 544-45 ; 
 Eiegler, Dicast. Concl. 15, § 21 ; Burge, iv. pp. 217-20 ; Story, §§ 474 and 
 465 ; Bornemann, Preussisohes Civilr. i. p. 13. 
 
 The following the lex domicilii : — Hofseker, De eff. § 24 ; Molinseus, in 
 L. 1, 0. de S. Trin. ; Bouhier, chap. 24, No. 91 ; Alder. Mascardus, Conel. 
 6, No. 42 ; Holzsohuher, i. p. 80 ; Wachter, ii. p. 365 ; Thdl, Einl. § 79 ; 
 Savigny, § 377 ; Guthrie, p. 282. It is indisputable that the capacity of 
 testing on moveables must be determined by the lex domicilii. See Burge, 
 iv. p. 580 ; Seuffert, Comm. i. p. 259. 
 
 2 For instance, Bald Ubald, in L. 1, C. de S. Trin. No. 79 ; D'Aguesseau, 
 CEuvres, iv. p. 539; Foelix, i. § 88, pp. 198-99 (Demangeat on this passage, 
 andi. pp. 64-5); Schaffner, p. 180 ; Hugo Grotius (Epistolee. Amstelod. 1687, 
 No. 464) ; BouUenois, i. pp. 486-88, 714. Some of these authors with this 
 further absurdity, that if a person is incapacitated by the lex domicilii, he 
 must be held to be so everywhere ; but if, on the contrary, the lex domicilii 
 give him capacity, while the lex rei sitce denies it, the testament is of no eflfect 
 as to the real estate in question (" the coupoLciU de tester is personelle rkU"). 
 
 3 Cf. Merlin, R^p. Testament, sect. 1, § 5, art. 1, iii. 
 
464 [§ 108. 
 
 nature ought to regulate the entire succession, settle nothing 
 more than the succession of a part. 
 
 Capacity to act is not to be confused with capacity to 
 execute a testament. The laws which set limits upon the 
 former exist solely for the advantage of the incapax, but laws 
 as to testamentary incapacity have in view the security and 
 the advantage of the heirs ab intestato.^ 
 
 That this view is false is, lastly, demonstrated by the fact 
 that, if one law is to regulate testamentary capacity and 
 another intestate succession, then we may have testacy and 
 intestacy co-existent in the same instance; for if intestacy 
 and its rule of succession are not excluded, they must receive 
 effect, and nothing can exclude them except the law which 
 is to regulate their operation. 
 
 When German systems come into conflict with the Code 
 Civil, or when one of these systems is in conflict with 
 another,' our theory wiU make the lex domicilii provide the 
 general rule ; while, if one of these systems comes into 
 conflict with the common law of England, the lex rei sitce 
 must determine questions as to the succession to real pro- 
 perty. 
 
 If a change of domicile has taken place, the law of the last 
 domicile is that which rules, in so far as the lex domicilii 
 supplies the rule f but a testament which is bad from the 
 
 * This will suffice to refute the argument attempted by Demangeat (i. p. 65), 
 which sets on the same footing the provisions of the Code Civil in articles 
 903-04, and the provisions as to incapacity to act. The minor, for instance, in 
 making a will, may damage his heirs ; he cannot damage himself. In a 
 judgment of 30th August, 1820 (Sirey, 20, 1^ p. 447), the Court of Cassation 
 of Paris declared that the article 904 was a statut personnel, because it stands 
 in a chapter entitled, " De la capaciU de disposer on de recevoir par testament." 
 
 ' There are, for instance, differences between the Prussian A.L.E., which gives 
 the prodigal a limited capacity of testing — viz., over one half of his estate — 
 (i. 1, 13, i. 12, § 37), and the common law of Eome, which declares him quite 
 incapable ; in the same way, between the Prussian A. L. R. ii. 2, § 201, i. 12, 
 § 16, and the law of Hamburg (Baumeister, ii. p. 51) on the one side, which 
 give children in familia the right of testing, and the common law of Borne 
 on the other side, which denies it to them. 
 
 ^ If incapacity to execute a testament were a special kind of incapacity to 
 act, the law of the domicile which the testator had when he made it could 
 alone be applied. 
 
§ 108.] 465 
 
 beginning cannot be made good merely by a subsequent 
 change of domicile. 
 
 That is the result of the following reasoning. If any one 
 is incapable of executiag a testament, he cannot test in any 
 form ;'■ the testament which he executes is just as invalid as 
 if it were null from some defect in form. In the latter case 
 no one would hesitate to say that it continued to be invalid. 
 This view^ is supported by analogous provisions of the Roman 
 law which treat of the change of the legal relations of a per- 
 son under the dominion of the same system of law.^ If the 
 
 ' Incapacity to test arose, according to older Roman law, from the in- 
 capacity to do the act in which the testament was, as a matter of form, 
 clothed. 
 
 8 Cf. L. 19, D. 28, 1, § 4 J, quibus modis test, infirm. 2, 17. 
 
 " Cf. Savigny, § 377; Guthrie, p. 282. Koch, on § 23 of the Introduction 
 to the Prussian A. L. K. ; Burge iv. p. 450 ; Holzschuher, i. p. 80 ; Wachter, 
 ii. p. 365, take the same view. Savigny makes a distinction between physical 
 qualities — e.g., age, and legal character. The first only need to be present by 
 the law of the domicile of the testator at the time of the execution of the 
 instrument. This theory rests upon an erroneous application of the rules of 
 Roman law. By older Roman law the deaf and dumb could not test, because 
 these physical peculiarities made it impossible for them to observe the forms 
 then required. In this the Romans were right. It is enough if the testator, 
 at the time of executing the deed, could physically make use of these forms, 
 for in accurate language no one retains the physical power of doing so up 
 to the last moment of life. To insist rigorously upon this as regards physical 
 peculiarities would make it quite impossible to make a testament. It is just 
 the same with the natural gift of capacity of the will in each individual ; 
 this, too, no one can keep till death, since in the last moments of life every 
 creature's will fails ; and the legal incapacity which the decree of the Praetor 
 imposes on the prodigus was held equivalent to natural incapacity. It is other- 
 wise with legal qualities — e.g., independent personality. These may exist 
 till death, and so we can adhere to the logical legal position that they must 
 continue up till that moment. Want of full age certainly falls, however, into 
 the second class, for once attained it is never lost. But as the necessary age 
 for the execution of a deed according to Roman law always remained the 
 same, the Roman jurists had no opportunity of discussing the closely allied 
 question as to the effect of a change in the law of the domicile with regard to 
 the necessary age. The incapacity of the prodigus, however, may be treated 
 as a legal fact, although that is not the theory of the Roman law, and the 
 testament executed before, the decree of prodigality becomes void,if that were 
 the view taken by the law of the last domicile. In these times we can 
 scarcely have to consider the incapacity of deaf or dumb persons ; such 
 questions would fall to be settled by the law that regulates the forms of 
 testaments, since the incapacity here rests upon the failure of these persons to 
 
 2 H 
 
466 [S 108, 109. 
 
 testator has full capacity by the law of his last domicile and 
 of that -which he had at the time he executed the deed, but 
 is incapax by the law of some domicile which he has in the 
 interval acquired and lost, his deed must be sustained.^" 
 
 Form of mortis causa Deeds. 
 §109 
 
 The form of the instrument is determined by the same 
 principles. The application, however, of the rule locus regit 
 actum, without any distinction between judicial and extra- 
 judicial forms, ^ is established by the force of custom as a law^ 
 in the sense we have already expounded — viz., to this effect, 
 that it is sufficient to observe the lex loci actus or the lex 
 domicilii, TpTOYided always that there is no doubt about the 
 intention of the testator to make a wUl. We say it is so 
 established with reference both to real and personal succes- 
 sion in those systems which hold the theory of a universal 
 succession, and with reference to personal succession in all 
 systems. 
 
 It is quite consistent and proper that English, Scottish, and 
 American practice- — the last in so far as it is founded on the 
 common law of England — should allow no law but the lex 
 rei sitae to affect real estate situated in a country where the 
 English common law prevails f for as we have already seen, 
 
 comply with, the necessary forms. This must also be the rule in the case of 
 deaf mutes. The Prussian A. L. R., i. 5, § 171, i. 12, § 120, requires, for 
 instance, a judicial testament. See, on the other hand, as to the different 
 views depending on the common Roman law, Arndt's Pandects, § 448, note 
 4 ; Code Civil, arts. 902, 967, 979. 
 
 1" Burge, iv. p. 451 ; BouUenois, ii. p. 194. 
 
 1 Thol, § 83, note 4, seems inclined to confine the rule to public testaments. 
 There is, however, no indication of this among the older writers. See, on the 
 contrary, 'Foelix, i. § 79, p. 176. 
 
 2 Cf., supra, § 36. 
 
 ' The following hold a testament is good everywhere, if it is in accordance 
 with the forms required at the place where it is executed : — Bald Ubald, in 
 L. 1 C. de S. Trin., No. 83 ; Alb. Brun. de Stat. x. § 5S ; Alb. de Rosate, L. 1, 
 qu. 46, § 1 ; Hugo Grotius, Epistolse (Amstelod, 1687 fol.), Nos. 464-67 ; 
 Bodenburg ii. c. 3, § 1 ; ChristiauKUs, in leg Municip. Mechlin, tit. 17, art. 
 
§109.] 467 
 
 the rule locus regit actum, does not apply to the acquisition 
 of real rights in particular things.* 
 
 Many authorities who, in dealing with intestate succession, 
 give absolute authority to the rule of the lex rei sitce, make 
 in this department an exception, and regard the lex domicilii 
 
 1, No. 9 ; Stookmans, Deois. Brabant, decis. 9, No. 1 : " Hodie sine hesita- 
 tione judicamus sufficere sollennitates, qucs obtinent in loco confedionis ;" Bar- 
 tolus, in L. 1 0. de S. Trin, No. 36 ; P. Voet, 9, c. 2, No. 1 ; Mynsinger, 
 Observ. Cent. t. observ. 20, No. 4 (illustrating the practice of the Eeichs- 
 kammergerioht) ; Gaill. Observ. ii. obs. 123, No. 1 ; Oarpzov. Defln. forens. 
 P. iii. const. 6, def. 12, No. 1 ; Everhard. jun. Cons. vol. ii. cons. 23, Nos. 
 9, 10, cons. 28, No. 79 ; Jo. a Sande, Decis. Pris. iv. 1, defin. 14 ; Cocceji, 
 de Fund. vii. § 1 ; Seger, p. 24 ; Mevius, in Jur. Lub. qu. 6, § 43 ; Petr. 
 Peckins, de Testam. Conjug. iv. c. 28, § 9 ; Ziegler, Dicast. concl. 15, § 16 ; 
 Vinnius, ad 1. ii. 15, § 14, No. 5 ; Dion Gothofredus, ad Leg. 20, D. de 
 jurisdict. 2, 1 ; Vattel, L. ii. ch. 8, § 111 ; Hommel. Rhaps. Quoest. vol. ii. 
 obs. 409, No. 5 ; Hert, iv. §§ 23-25 ; Merlin, Edp. Testament, sect. 2, § 2, 
 art. 6, No. iii., sect 2, § 4, art. 1 ; D'Agnesseau, OSuvr. iv. p. 637 ; Rioci, 
 p. 533 ; Gottingen Faculty of Law (in Bdhmer, Eecbtsfalle, vol. ii. p. 81) ; 
 BouUenois, i. p. 422 ; Titius Jns. Privatum, i. c, 10, §§ 34-35 ; Bouhier 
 chap. XXV. No. 61 ; Cochin, GEuvres, i. p. 545 ; Mittermaier, § 32, p. 121 ; 
 Von Grohnan, Anonymous Papers on Holograph and Obscure Testaments, p. 
 20 ; Gliick, Pandects, i. p. 291 ; Seuflfert, Comm. i. p. 258 ; Eenaud, i. § 42, 
 note 21 ; Gand, No. 579 ; Savigny, § 381 ; Guthrie, p. 322. Judgments of the 
 Supreme Court of Appeal at Wiesbaden, 16fch October, 1822 (Nahmer, 2, p. 
 171) ; Supreme Court at Berlin, 3rd April, 1857 (Striethorst, 23, p. 353) ; of the 
 Court of Cassation at Paris, 30th Nov. 1831 (Sirey, 32, 1, pp. 51-58) ; Wiich- 
 ter, ii. p. 191, 370-71 ; Schaffner, p. 188, and authorities cited there. The 
 Hanoverian order of 29th Oct. 1822 gives validity to the testamentary dis- 
 positions of Hanoverian subjects executed abroad before a foreign court, and 
 in a foreign form. It cannot be inferred from this that the rule " locus regit 
 actum " would be excluded, if a legal transaction, which in Hanover must be 
 entered upon in court, did not need that formality abroad. 
 
 * The following favour the lex rei sitce : — Burgundus, vi. ; Cujacius, Con- 
 sult. No. 3 (but in his Observ. Lib. xiv. c. 12, Cujacius recognises the lex 
 domicilii, on the ground of the L. 9 C. 6, 23) ; Wheaton, § 81, p. 109 ; Burge, 
 iv. pp. 220, 581 ; Story, § 474-78. These two last testify to the practice of 
 English and American courts. We can specially appreciate the propriety of 
 the view taken by English jurists in connection with the principles of their 
 common law, which divides every succession into moveables and immoveables, 
 if we remember that, up to modem times, there were two separate forms for 
 wills according as they dealt with moveables or immoveables, and that the 
 Statute of Wills (7 Will. IV. and 1 Vict. cap. 26) was the first means of intro- 
 ducing one form for both kinds of estate, besides certain privileges given to 
 soldiers and sailors in making testamentary settlements of moveable property. 
 Stephen, i. pp. 591-93, ii. p. 188. 
 
468 [§ 109. 
 
 or the lex loci actus as regulative in every case. The expla- 
 nation of this is to be found in the fact, alluded to in the 
 last paragraph, that they will apply the lex rei sitce to cases 
 of intestacy even where there is a conflict between two systems, 
 which both proceed upon the principle of a universal succes- 
 sion. In such cases it would be a juristic absurdity to hold 
 that a testament had no validity in relation to particular 
 parts of the estate. 
 
 There is no question that moveables, so far from being 
 ruled by the lex rei sitce, as regards the form of the testament 
 which deals with them, are to be treated as if they were situ- 
 ated at the domicile of the testator. 
 
 Some authorities propose to apply the law of the place of 
 execution exclusively in cases of this kind f the majority, 
 however, of those who pronounce particularly upon this point 
 allow, as we have done, the testator to make his choice 
 between the lex domicilii and the other.^ The origin of this 
 theory is, on the one side, the mistaken assumption that the 
 rule " locus regit actum " rests upon the sovereign rights of 
 the State in which the person has a temporary residence ; 
 and, on the other hand, the fact that, where the testament is 
 judicial, the publica fides of the official or notary is not 
 recognised unless he has observed the forms required by 
 his law.''' In the practice of England and America, the lex 
 domicilii seems to be the principal rule taken for the regula- 
 tion of succession in moveables.^ 
 
 Further, we cannot approve of the theory which a few 
 authors adopt, that a testament executed in a foreign country 
 by a subject of our State according to the forms there in use 
 is only to be recognised if the testator has not, at some later 
 date, had an opportunity of following out the forms pre- 
 
 * P. Voet, de Stat. 9, 2, c. 3 ; Cocceji, as cited ; Ricci, as cited. 
 
 8 Ziegler, as cited ; Bouhier, chap, xxviii. No. 20 ; Mittermaier, as cited ; 
 Hert, iv. 23-25 ; Eodenburg, as cited ; Savigny, § 381 ; Guthrie, pp. 321-25 ; 
 Waehter, ii. pp. 377-80; Eichhorn, § 35; Fcelix, i. § 82. Of. supra, 
 §36. 
 
 f See BouUenois, i. pp. 422-29. He must, however, admit that any person 
 who can by the law of his domicile execute a holograph testament is thus in 
 a position to test abroad. 
 
 8 Burge, iv. p. 588 ; Story, §§ 465-67. [Infra, p. 474.] 
 
§ 109.] 469 
 
 scribed by the law of his own country.® SucIl a rule may be 
 imagined, and actually does occur in one old system of law." 
 But the ordinary usage of nations, which lies at the root of 
 the rule locus regit actum, certainly rejects any such limi- 
 ation ; and such a rule is all the more unreasonable that in 
 any particular case it must be very difficult to ascertain the 
 fact, and that the legal position of any person would be 
 exposed to the greatest insecurity, according as different judges 
 might take different views of the possibility or impossibility 
 of the deed being executed anew.^^ This view plainly depends 
 upon the proposition which we have already refuted, that no 
 legal transaction can be entered into in a foreign country, even 
 though it be in conformity with the forms recognised there, 
 if it is in fraudem legis domesticce}^ 
 
 Lastly, a modern author^^ has thrown out the view- 
 primarily with reference merely to certain provisions of the 
 Prussian AUgemeine Landrecht^* — that if the legislature, 
 by appointing some particular form for testaments, has 
 endeavoured to defeat forgery and falsification, this form 
 must be observed even in a foreign country, and the rule 
 locus regit actum can have no application. But almost 
 every form which is aj)pointed bj'' any legislature for the 
 execution of testaments lias this object in view ; the necessary 
 result of this theory, therefore, is to deny all force to the rule 
 locus regit actum in so far as testaments are concerned, and 
 
 » Adlerflycht. Privatr. der Stadt Frankfurt, i. 511. 
 
 ^^ Liibischer, Stadtr. ii. tit. 1, art. 16 : " If one of our citizens die abroad, 
 having made a testament according to foreign law, that testament will be 
 recognised by our law. But such a testament must be executed under the 
 presence of approaching death, and not fraudulently and of set purpose to 
 defiaud heirs." 
 
 " See Schaffner, p. 188; Savigny, § 381 ; Guthrie, p. 323. 
 
 1^ Eodenburg, ii. c. 4, § 8 ; and Boullenois, i. p. 427, propose that the lex loci 
 actus shall not be recognised where the law of the domicile has been deliber- 
 ately evaded. See, too, the judgment of the Supreme Court at Berlin, cited 
 infra, note 25. 
 
 15 Koch, on § 33 of the introduction to the Prussian A. L. E. 
 
 " I. 12, § 17, § 66, § 139. In § 17 it is provided: "Persons who have not 
 yet passed their eighteenth year cannot execute testamentary deeds except 
 as under guardianship in judicial form." By § 66 : " Every testament or 
 codicil must as a rule be laid before the court by the testator himself, or pub- 
 lished in judicial form." 
 
470 [§ 109. 
 
 indeed, since we may well suppose that the forms required in 
 all other legal transactions have a similar object, the result 
 would be that this rule, so useful to commerce and in many- 
 ways quite indispensable,^^ would be swept away. That is 
 certainly not the theory of the Prussian Legislature, as the 
 treaties concluded by Prussia with other States show.^® 
 
 All the treaties as to jurisdiction reported by Krug,'^ con- 
 tain this rule : — "All legal transactions inter vivos and mortis- 
 causa, must, in so far as their validity in form is concerned, be 
 ruled by the law of this place of execution." But to this 
 provision we always have this addition, " so far as the act is 
 not executed there in order to escape the prohibitive law of 
 another State," or this, " if the validity of any act is, by the 
 conception of the legislation of either of the States concerned, 
 made dependent upon its being executed before some par- 
 ticular official body, this direction must be observed." Now 
 such additions go to show that the rule locus regit actum 
 merely confers a power, for if it were founded upon any 
 absolute deduction of law, and if, therefore, the form of any 
 instrument were necessarily regulated by the law of the place 
 where it was executed, there would be no occasion to provide 
 for an exception in the event of the law of one State 
 absolutely forbidding it.^^ The French Legislature too- 
 
 15 Por instance, by the Prussian A. L. R., a testament cannot be made with-; 
 out the co-operation of the court. In France, no court is competent to 
 undertake such a proceeding. Quid juris, if a native of Berlin falls sick in 
 France, and must make his testament there ? See Demangeat on Foelix, i. 
 p. 168 ; Savigny, § 382 ; Guthrie, p. 328. 
 
 1° Savigny as cited. 
 
 w Pp. 50-1. 
 
 15 Krug, p. 51, proposes that the second qualification quoted above shall 
 not only apply to deeds which must be authenticated before some individual 
 and definite official body — e.g., the execution of a mortgage — but also to those 
 which must be taken before some particular class of officials. But if this 
 exception were to be so extended, the rule locus regit actum would, under 
 a strict interpretation, be excluded in reference to all deeds that require 
 authentication before officials, for a Saxon court, for instance, is difl'erent from a 
 Prussian court. In the same way this notion is contradicted by the fact that for 
 a long time the rule locus regit actum has been applied, even although the 
 form from which it was proposed to deviate was a judicial form, and the only 
 exception allowed was when the law, which otherwise would have ruled the 
 case, required the deed to be executed before the competent court — i.e., the 
 
§ 109.] 471 
 
 recognises the rule locus regit actum in this facultative 
 sense, as is apparent from the provisions of the 999th 
 Article of the Code : — 
 
 " Un Frangais qui se trouvera en pays stranger pourra 
 /aire ses dispositions testamentaires, par acte sons signature 
 priv4e, ainsi qu'il est prescrit en V article 970, ou par acte 
 authentique avec les formes usit^es dans le lieu oib cet acte 
 
 r )] 1Q 
 
 sera passe. ^^ 
 
 It will not be denied that this rule must by analogy be 
 applied to the testaments of foreigners, which they have 
 executed in France ; just as in the older French jurispnr- 
 dence, the inhabitant of a province in which, before tlic; 
 publication of the Code Napoldon, holograph testaments were 
 required, was allowed the privilege of testing in this form even 
 when abroad,^" a privilege conceded on the erroneous ground 
 that the capacity of making testamentary provisions in a 
 holograph deed, as a personal quality, could not be lost by a 
 residence abroad. ^^ 
 
 On the other hand we cannot regard a provision that a 
 testament, in order to be effectual, must be executed a certain 
 
 judex domicilii or judex rei sitae. Cf. supra, § 35. See also the view of Koch 
 cited above. Notes 14-16, and judgment of the Supreme Court at Berlin, 
 infra, note 25. 
 
 is> Of. judgment of the Cour de Paris, 30th Nov. 1831 (Sirey, 32 i. pp. 
 51-8). See provisions of a similar kind in articles 992, 982 of the Code of the 
 Netherlands, and in a Grecian statute of 1830 (Schaffner, p. 194). It is only 
 an apparent exception to the rule locus regit actum, if by the law of any place 
 particular, testamentary forms are confined to the subjects of a country or the 
 citizens of a town, a case that seldom occurs now-a-days. Cf. Schaffner, 
 
 p. 190. 
 
 2» Bouhier, chap. 28, No. 20 ; BouUenois, ii. pp. 75-97 ; Merlin, Rip. 
 Testam. sect. 2, § 4, art. 1. 
 
 21 See, on the other hand, supra, § 44, pp. 175-76. It cannot be said to be by 
 any special kind of legal capacity that the inhabitants of one country have 
 the power of expressing their testamentary wishes in this or in that forjii. 
 • Thus, for instance, the special provisions enacted by the Prussian A. L. R. 
 for the execution of testamentary instruments by minors under eighteen years 
 of age (A. L. li. x. 12, § 17), will not apply to testaments executed by 
 Prussian minors in a foreign country. The disponing will of the minors 
 is recognised. This is sufficient to exclude any question of personal incapa- 
 city which would have to be recognised abroad. The position is just the 
 same as if the special provisions which at present apply solely to minors 
 were extended to all the natives of the country. 
 
472 [§ 109. 
 
 time before the death of the testator, as a formal provision. ^^ 
 A provision of that kind means to enact that, if a testator 
 does not survive the execution of his testament some definite 
 period, the deed shall not be recognised as a declaration of 
 his will. This purpose is not consistent with the notion of a 
 formal provision.^^ And accordingly, so early as 1734, a 
 French ordinance (Art 74-5), declared that the trois mois de 
 survie of the testator which were required by some provincial 
 laws constituted a statut rid to which the rule locus regit 
 actum could not be applied.^* 
 
 Of course a testament which has once been validly exe- 
 cuted in conformity with the lex loci actus wiU not be 
 invalidated by any change of domicile,^^ although one which 
 is not in conformity with the forms required by the law of 
 the place where it was executed, but is according to the forms 
 of the domicile of the testator at that time, may be invali- 
 dated if the law of his latest domicile requires some different 
 form. 
 
 The import of the testament is ruled by the law which 
 determines generally the law of succession ; and, therefore, 
 when laws which hold the theory of a universal succession 
 are in conflict, and in every case where moveables are in 
 question, by the law of the last ^® domicile of the deceased.^' 
 
 ^^ In the same way we do not count it a mere formal provision that the 
 heir-at-law must, as modern Eoman law requires (No. 115), be expressly 
 instituted or disinheiited, although that would be a perfectly correct notion 
 according to older Eoman law. These provisions give the heir-at-law 
 material rights. Many {e.g., Bouhier, chap. 25, No. 61), distingush 
 between intrinsic and extrinsic forms, and only allow the rule locus regit 
 actum to apply to the latter. (See, on the other hand, supra, § 35, 
 p. 136). 
 
 23 See supra, pp. 136-37. 
 
 2* Mailher de Chassat, No. 23, ad. fin. ; Cochin, CEuvres, i. p. 545. Cf. 
 too the points of the judgment reported in Story, § 479. 
 
 26 Foelix, i. p. 263 ; Schaffner, pp. 195-96 ; Supreme Court of Berlin, 3rd 
 April, 1857 (Striethorst, 23, p. 353). « The formal validity of a holograph 
 will made under the rule of French law is not lost if the testator shifts his 
 abode into the territory of Prussian law, and dies there ; but in order to 
 revoke the deed, those forms and acts required by the law of the new domicile 
 must be observed." 
 
 21 Story, §§ 479-99, ad fin. ; Wharton, §§ 596, 599. 
 
 2' According to Vattel, ii. ch. 8, § 111 ; Boullenois, i. p. 443 ; iv. p. 217 ; 
 
§ 109, Note T.] 473 
 
 It will be kept in view that the rule locus regit actum, is 
 not to be applied in so far as any legal provisions, which 
 are independent of the will of the testator, are concerned. ^^ 
 We need not expound at length the highly dangerous con- 
 sequences of the opposite view, which would allow any one to 
 withdraw from the reach of any such provisions by a journey 
 into another country. 
 
 jyoie T, on § 109. 
 
 [The Code Civil provides that a Frenchman who happens 
 to be in a foreign country may make his testamentary dis- 
 position under private signature, but this must be holograph, 
 as prescribed by Art. 970 ; such a holograph disposition will 
 carry heritage in France (Marcel v. Marcel et Pellet, C. de 
 Paris, 8rd June, 1878) : he may also execute such a disposi- 
 tion according to the forms prescribed by the law of the 
 
 and Story, § 473, the Ux rei sitce. According to Wachter, ii. p. 366 ; 
 Savigny, § 377 ; Guthrie, p. 283 ; Seuffert, Comm. i. p. 259 ; Holzschuher, 
 i. p. 80 ; Foelix, i. pp. 261-62 ; Koch, on § 23 Introduction to Prussian A. L. R. 
 (i. 1, p. 56). Judgment of the Supreme Court of Appeal at Oassel, 28th 
 October, 1840 (Seutfert, i. p. 98), and judgment of the Supreme Court at 
 Berlin, 3rd April, 1857 (Striethorst 23, p. 354), the lex domicilii. 
 
 ^ Eodenburg, ii. c. 5, § 8 ; Hartogh, pp. 134-35 ; cf. Judgment of the 
 Supreme Court of Appeal at Wiesbaden, 16th October, 1822 (v. d. Nahmer, 
 ii. p. 155), and the judgment of the Supreme Court of Appeal at Cassel cited 
 in the previous note (Strippelmann, ii. p. 109) ; Schafi'ner, p. 198. In the 
 case suggested by several writers (e.g., Wachter, ii. pp. 366-67) that the law 
 of the place where a landed estate lies enacts that such estates shall not be 
 capable of transmission mortis causa, as a rule, and in accordance with our 
 own view, the lex rei sitce must be applied. Such provisions do not as a rule 
 exist unless there is in that country in reference to such property a modified 
 form of particular succession in use, Eodenburg, ii. c. 5, §§ 3-4 ; Hert, iv. 23 ; 
 D'Aguesseau, CEuvres, iv. p. 637 ; Wachter, ii. p. 386 ; Judgment of the 
 Court of Cassation at Paris, 3rd May, 1815 (Sirey, 15, pp. 1, 532). The 
 rule locus regit actum is rejected in this case. There may, however, be 
 figured cases in which, according to an established system of universal 
 succession, property acquired by inheritance cannot be diverted from the 
 heirs-at-law ; in such a case the lex domicilii decides. In modern times, 
 although the law is a remnant of the Germanic theory, a man's heirs-at-law 
 have a more ample right, being not merely entitled in the division of the 
 succession to the value of the property inherited, but to the actual corpora of 
 the articles so inherited. 
 
474 [Note T. 
 
 place for the execution of an "acte authentique " (Art. 999) 
 — i.e., by execution before some public authority of that 
 country, or by obtaining authentication of his deed from such 
 authority : a deed executed according to the customary forms 
 required for deeds under priyate signature by the law of that 
 country wiU not receive effect (Guigonard v. Sarrazin, Trib. 
 Civ. de Lyons, 22nd October, 1871). But in the case of a 
 holograph will executed in a foreign country, its effect is not 
 prejudiced by a declaration contained in gremio that another 
 deed to the same effect had been signed of even date with 
 itself in English form (Marcel ut supra). 
 
 The law of England and Scotland is settled as regards 
 moveable estate, for persons dying after 6th August, 1861, if 
 they are British subjects, by Lord Kingsdown's Act (24 and 
 25 Vict. c. 114) : that statute provides, by § 1, that any will 
 or testamentary instrument made out of the United Kingdom 
 shall be held to be well-executed by Enghsh, Scottish, or Irish 
 courts whatever the domicile of the person making it at the 
 time of death may be, if it is executed according to (1) the 
 lex loci actus, (2) the lex domicilii, or (3) the law of the 
 domicile of origin : the common law of England held before 
 the passing of this Act that the character and validity of any 
 document propounded must be tried by the law of the last 
 domicile of the testator ; in Scotland, on the other hand, the 
 lex loci actus had always been sufficient to render a will deal- 
 ing with moveables effectual (Purvis' Trustees v. Purvis' Execu- 
 tors, 1861, 23 D. 812), the law of the testator's last domicile 
 being also admitted as regulative of his testamentary disposi- 
 tions of moveables. The second section of Lord Kingsdown's 
 Act extends this principle to the three parts of the United 
 Kingdom ; the third section provides that no change of 
 domicile shall render a testamentary deed once regularly 
 executed invalid, nor alter its construction. As regards wiUs 
 executed by persons who are not British subjects, the law of 
 England will continue to require observance of the law of the 
 last domicile, while the law of Scotland will recognise the lex 
 loci actus as well. 
 
 With regard to real estate, the tendency in England and 
 Scotland was to regulate the form of testamentary deeds by 
 the lex rei sitae solely, and in England this is still law. In 
 
Note T.] _ 475 
 
 Scotland, by the terms of 31 and 32 Vict. c. 101, § 20, the law 
 applicable to deeds of a testamentary character conveying 
 heritage has been assimilated in so far as regards the char- 
 acter and validity of such deeds to that applicable to deeds 
 dealing with moveables, and hence the provision of the lex 
 loci actus if observed will sufficiently establish the validity of 
 such a deed. In Connel's Trustees v. Connel (16th March, 
 1872, 10 M'P. 627) it was held that under the terms of this 
 Act an English will containing a conveyance of Scots herit- 
 age, which would not have been received in Scotland prior 
 to the Act as a probative deed, was sufficient to convey that 
 heritage as having been validly executed as a testamentary 
 deed in England. American law is the same as the common 
 law of England. 
 
 As regards the construction of the provisions — the import 
 — of a will, the doctrine of the text substantially accords with 
 the laws of England and Scotland : as regards moveables, the 
 law of England takes the law of the last domicile of the testator 
 as its guide (Westlake, p. 90, § 55), in cases where the court 
 of that domicile has had an opportunity of making a declara- 
 tion as to who are entitled to the beneficial interest in the 
 property ; where it is not so aided, the law of the testator's 
 domicile at the date of the will will regulate the construction 
 (§ 115, p. 1 27 of Westlake). In Scotland the law of the 
 last domicile will regulate the construction of testamentary 
 deeds as to moveables, unless the frame of the deed, and the 
 circumstances of its execution, and the history of the testator 
 point to another law as intended by the testator to be taken 
 as the canon of construction (Mitchell & Baxter v. Davies, 
 3rd December, 1875, 3 K. 208). 
 
 In questions as to real estate, the law of Scotland holds 
 that the lex rei sites will rule, and it has been decided that 
 the terms of a foreign deed, dealing with Scots heritage, and 
 using technical terms of foreign conveyancing, wiU receive 
 effect in Scotland in such a way as will most nearly give 
 effect to the intention of the maker of the deed, although the 
 technical language used may be unintelligible to Scots con- 
 veyancers (Studd, 10th December, 1880, 8 R. 249). The 
 law of England regards terms of years, although these are by 
 English law personal, as immoveables for the purposes of 
 
476 [iV^ofeT, §110. 
 
 international law, and will, therefore, refuse to recognise 
 directions to accumulate in contravention of the Thellusson 
 Act given by a foreign testator, although the subject be lease- 
 hold (Freke v. Carberry, L. R. 16, Eq. 461 ; Westlake, § 154, 
 p. 180). The EngUsh law of mortmain will not be applied 
 to a charitable bequest which is to be satisfied out of real 
 estate situated abroad (Beaumont v. Oliveira, 1868, L. R. 6, 
 Eq. 634). But although the charitable purpose is to be 
 executed abroad, the Mortmain Act wUl prevent English real 
 estate from being taken to satisfy it (Curtis v. Hutton, 1806, 
 14, Ves. 537). "Generally all questions concerning a 
 restraint on the alienation or disposition of immoveables are to 
 be decided by the lex situs " (Westlake, § 155, p. 180).] 
 
 Interpretation of mortis causa Deeds. 
 
 § 110. 
 
 No general rules can be laid down for the interpretation 
 of inortis causa deeds — i.e., for ascertaining the true meaning 
 and intention of the testator. There is no doubt that in all 
 questions as to the regulation of domestic affairs, the author 
 of the deed will be presumed to have had the law and the 
 forms of expression recognised in his own country in view 
 much more readily than in questions as to obligatory con- 
 tracts ; there is no necessity, as in transactions inter vivos, 
 where one has to observe the good faith on which the other 
 party relies, to demand that the forms of expression in use 
 at the place of execution should be observed ; and accord- 
 ingly the appropriate interpretation is as a rule that which 
 the law of the testator's domicile requires, whether as a 
 matter of custom or of technicality.^ We can, however, 
 
 1 The following support the interpretation according to the terms and 
 language of the domicile :— Hert, iv. 25 ; Molinseus, in L. 1, C. de S. Trin. ; 
 Jo. a Sande, Dccis. Ins. iv. tit. 8, defin. 7 ; Foelix, i. p. 262 ; Burge, ii. 857, 
 iv. 591 ; Story, § 479 ei seq. A will executed in Scotland by a born Scotch- 
 man who had settled in England was interpreted according to the language 
 of English law. Story, 479/. Illustrations :— A legacy made by the will of 
 an Irishman is in duhio to be held to be in pounds of Irish currency (Story, 
 4796.) ; the persons indicated by the lex domicilii of the testator are those 
 
§§110,111.] 477 
 
 imagine cases in wliicli the testator may express himself in 
 the language of the place where the thing in question is 
 situated, or may he presumed to have used that of the place 
 of execution — e.g., if he has lived for some time at the place 
 of execution, and has conceived his^ testament in the language 
 of his temporary home and not of his domicile. 
 
 Legacies. 
 
 § 111- 
 
 We need not show at any length that universal legacies 
 are to be determined by the same rules as the institution of 
 heirs. But in the same way it is a general rule that if the 
 subjects are moveable, bequests of particular subjects are 
 regulated by the lex domicilii,^ and by that law also where 
 the subject is heritage, if the laws which affect the question 
 — viz., the law of domicile and the lex rei sitae — ^regard 
 the succession as a universal succession. For although 
 a legacy only gives the legatee a right to a particular thing 
 or a jus exigendi, its validity depends on the appoint- 
 ment of an heir or a universal successor, and is, therefore, 
 dependent on the law which regulates the succession gener- 
 ally.^ 
 
 If, however, particular forms are required by the law of 
 the place where the thing is situated for the acquisition of 
 real rights, such, for instance, as recording in a register of 
 
 who must be presumed to be instituted under a destination to heirs-at-law. 
 (Burge, ii. p. 857-58 ; Story, § 479A.). An heir, instituted by a testator 
 domiciled in Berlin, need not, although the estate which he is to take lies in 
 a country subject to the common law of Rome, or the testator, during a short 
 stay in such a country, has executed his testamentary disposition before its 
 courts, or had it recorded there, wait for the purification of the condition 
 attached to his institution. He transmits to his heirs all that is destined to 
 him, if the condition is operative at all. Prussian A. L. E., i. 9, § 369-70 ; 
 cf. L. and § 7, C. de cad. toll. 6, 51 ; L. 59, 101 ; D. de cond. 35, 1. 
 2 See BouUenois, i. p. 503 ; Savigny, § 377 ; Guthrie, p. 283. 
 
 1 See the foregoing paragraph as to the interpretation of a testamentary 
 deed Containing a legacy. 
 
 2 Savigny, § 377 ; Guthrie, p. 283 ; Wachter, ii. p. 365 ; Kierulff, i. p. 80 ; 
 Miihlenbruch, iii. § 629. 
 
478 ■ [§ 111. 
 
 encumbrances, and tlie right therefore cannot arise or be 
 transmitted by the Tnortis causa deed alone, all that the 
 legatee acquires is a right of action to compel a conveyance 
 of the real right,^ and, if the lex rei sitae does not recognise 
 at all the real right which has been bequeathed, the legacy 
 must lapse as having directed an impossibility to be per- 
 formed. To this class belongs the case of a prohibition of 
 entails — i.e., a prohibition against alienation by the institute, 
 and an obligation to transmit it to a specified party — by 
 the law of the place where the estate is.* The law of the 
 place refuses in this case to allow any such limitation of the 
 power of alienation and transmission, and will not sanction 
 any real right which implies such a hmitation. The same 
 principle applies if this law forbids a right of usufruct to be 
 conferred by wiU upon several persons in succession.^ 
 
 An obligatory duty laid upon any person by a testament 
 is invalid if the law of the place where this is to be done 
 forbids it.^ The intention of the testator must determine 
 whether a legatee is entitled to the value of any article which 
 has been bequeathed to him, but which the law of the 
 country where it lies prevents him from acquiring, — a case 
 which can seldom now occur, since the principle of the 
 equality of foreigners and natives, and of the adherents of 
 
 3 Wacliter, ii. p. 367. 
 
 * Of. e.g.. Code Civil, art. 896-99. These provisions, however, by reason of 
 the recognition in France of a universal succession, aifect not only all the real 
 estate situated there, but the succession of Frenchmen generally, unless the 
 lex rei sitw recognises a particular succession. Savigny, as last cited ; Judg- 
 ment of the Rhenish Court of Cassation at Berlin, 9th July, 1823 (Volkmar, 
 p. 235) ; Bouhier, chap. 27, No. 91-3. The law of the place where the estate 
 lies, however, will regulate the competency of executing a family deed of 
 entail which is not testamentary, — i.e., which cannot be recalled by the voice 
 of the maker himself, — and if it is necessary, besides, to obtain the approval of 
 Government, the Government in question will not be that of the entailer's 
 domicile, but that of the country where the estate lies. For the execution of 
 a deed of entail in such a case divides the estate so entailed from the rest of 
 the property before death, while in the former case— i.e., of a deed mortis 
 causa,, the trust for entail, like any other bequest, depends upon the same 
 destiny as regulates the whole inheritance. 
 
 ^ Wachter, ii. p. 363. 
 
 ^ Cf. siipra the law of obligations, and Story, § 472a. 
 
§§111,112.] 479 
 
 different religions in the eye of the law has been so generally 
 introduced.'^ 
 
 Rights of heredes legitimi and of Persons entitled by 
 Law to share in the Succession — Revocation of 
 Wills. 
 
 §112. 
 
 The same law that regulates intestacy wiU of course also 
 regulate the rights of those who have a claim ex lege to share 
 in the succession. According as we propose to apply the 
 law of the domicile or of the rei sitce to intestate succession, 
 we must also apply either the one or the other to questions 
 of this Mnd.^ As to the competency of challenging a gift 
 inter vivos by which the rights of these legal claimants 
 (Heritiers a reserve) are injured, see supra, § 82, and see 
 supra § 97 as to the limitations placed upon testamentary 
 deeds by spouses). 
 
 ^ Cf. the provisions of the Roman law as to the case where the legatee has 
 not the right of commercium in the subject of the legacy, L. 49, §§ 2, 3, D. de 
 legat. ii., L. 40, D. de leg. i. ; Puchta, Pandekten, § 529h. 
 
 ^ For instance, for the lex rei sitce : — Argentreeus, as cited ; J. Voet, in Dig. 
 5, 2, § 47 ; Christiansens, in leg. Municip. Mechlin, xvi. art. 26, No. 4 ; 
 Burge, iv. p. 303 : for the lex domicilii, Bouhier, chap. 25, Nos. 50-6 ; 
 Seuffert, Comm. p. 259 ; Walter, § 49 ; Wachter, ii. p. 365 ; Savigny, as last 
 cited. An undetermined case in the older French jurisprudence was whether, 
 in the case that one coutume allowed a party to test upon a definite share of 
 his biens propres, or acquets, if he was possessed of hiens propres, it was 
 necessary to reckon up all the property belonging to one testator in whatever 
 territory it might be situated, if a question arose as to whether he had 
 exceeded the quantiti disponible in his testamentary arrangements. Cf. 
 Merlin, E6p Reserve Coutumiere, § 3, No. iii. But although by older French 
 law, following the principles of Germanic law, the family estate was not held 
 to be capable of being the subject of a disposition mortis causa or of a gift, 
 and testamentary provisions were only allowed exceptionally in reference to 
 some part of such estates, and the conception of a quantiti disponible was 
 retained by the Code NapoWon (of. Zacharia, Franz. 0. E. iv. § 586, notes i. 
 and ii.), it can only be the lex domicilii and not the lex rei sitce, as in the 
 case of the old coutumes, that is to be applied in cases of conflict between the 
 Code Civil and a system which holds the theory of succession as a universal 
 succession ; because the provisions as to the qucmtiti disponible, contained in 
 the Code Civil, are no longer limited to family estates, but apply to all pro- 
 
480 [§ 112. 
 
 The reTocation of dispositions mortis causa by some ex- 
 pression of the testator's will, is subject to the same law as 
 their execution, and the observance of the law of the place 
 where the deed is drawn out will, in this class of cases also, 
 be sufficient, in so far as the intention of the testator to 
 revoke it is plain,^ except in the case where, as by the law of 
 England, the forms of the lex rei sitce are required to be 
 
 perty heritable and moveable. French authors, however, seem to regard the 
 rights of the hiritiers a riserve as a statist reel upon the same grounds as 
 were assumed by the older authors. Demangeat on Fcelix, i. p. 63 ; FobHx, 
 i. p. 129. 
 
 [The laws of England and Scotland adopt the doctrine of the text ; for the 
 former, see Westlake, p. 125, for the latter, the leading case of Hog v. Lash- 
 ley, 3 Hogg, Eocl. 415, and 3 Paton's App. 247. The law of Scotland will 
 not pay any heed to an English marriage contract, the terms of which are 
 said to exclude a demand made for legitim out of the estate of a father who 
 died a domiciled Scotsman, although at the date of the marriage contract, in 
 which the claim is said to be discharged, he was a domiciled Englishman — 
 Trevelyan i/. Trevelyan, 11th March, 1873, 11 M'P. 516. "The question 
 seems to be this, whether or not the succession of a domiciled Scotsman is to be 
 regulated by the law of Scotland," — per Lord Neaves. There are several cases 
 in the French courts which determine that, although the succession in the 
 moveable estate of a foreigner possessed, it may be, of a residence in France, 
 but not domiciled there, will be regulated by the law of a foreign domicile, 
 still it is competent for the French courts to attach any moyeable estate be- 
 longing to that succession that may be situated in Prance, in order to satisfy 
 out of the proceeds thereof any claims by French co-heirs, which would not 
 meet with recognition from the law of the foreign domicile, but which the 
 law of France, in the interest of public order, desires to see satisfied — claims 
 which it deems essentially and fundamentally justifiable ; e.g., a claim to par- 
 ticipate as representing a bastard child, which the law of the foreign domicile, 
 in this case England, will not recognise. Nor is this rule of law merely 
 dependent on decisions ; by a statute of 14th July, 1818, it is declared to be 
 a privilege of French subjects (Becker v. Ohantrenille, C. de Bourdeaux, 18th 
 Jan. 1881 ; Mayo v. M'Henry, Trib. Civ. de la Seine, 1st March, 1881 ; Cour 
 de Paris, 14th July, 1871). The law of France will not recognise any dispo- 
 sition of property executed abroad by a domiciled Frenchman as valid if 
 it is forbidden by the law of France (Hopkins v. Knight, Trib. Oiv. de la 
 Seine, 8th April, 1875).] 
 
 2 Gand, No. 597, is of a different opinion. He approves of a judicial de- 
 cision by which it was held that a holograph testament executed in France by 
 an Englishman could not be revoked by a second testament executed in Eng- 
 land, and complying only with the formal requisites of an English and not 
 of a French deed of the kind, in so far as the first comprehended estate 
 situated in France. 
 
[§§112,113. 481 
 
 observed. Contracts as to succession are regulated by the 
 same law as testaments ; but it is not possible to revoke a 
 contract once validly made by any subsequent change of 
 domicile, unless in so far as the rights of heredes legiUmi, 
 which must be ruled by the law of the last domicile, are 
 concerned. This is of special importance in determining the 
 capacity of a deceased person to have executed a contract as 
 to succession. In the case of mutual contracts the predeceaser 
 is regarded as the testator. 
 
 The lex domicilii, therefore, rules questions that arise from 
 the conflict of systems which recognise the doctrine of a uni- 
 versal succession. This is the result not merely of the 
 similarity of contracts as to succession and testaments, both 
 of them consisting in the operation of the will of the testator 
 upon the law of intestate succession, but would also be in- 
 ferred from the principles of bUateral contracts. There can 
 be no question as to excluding the application of the law 
 of the place of execution (unless the question is one as to 
 form alone, and therefore the rule locus regit actum must be 
 recognised^), in the case of a contract as to succession, the 
 object of which is to regulate family concerns.* But, no 
 doubt, less attention will be paid to the terms and language 
 of the domicile in interpreting bilateral contracts, if the 
 parties have different domiciles, than would be the case if a 
 testament were concerned. 
 
 C. Taking up the Succession. 
 § 113. 
 
 The law which regulates questions of succession generally 
 will rule the question as to the taking up of the inheritance.^ 
 (The mode of entering on the succession may, however, ex- 
 cept in the case of a particular succession in real estate, 
 
 ^ See supra, p. 128-29, as to the effect of a change of domicile upon this 
 question. 
 
 * Savigny, § 377 ; Guthrie, p. 285 ; Seufferfc, Oomm. i. p. 259 ; Thol, 79 ; 
 Holzschuher, i. p. 80. 
 
 1 The lex domicilii, therefore, of the deceased, and in certain cases the lex 
 rd sitcB — Boullenois, i. 237-38 ; Burge iv. p. 641. 
 
 2 I 
 
482 [§ 113. 
 
 ■wliich is subject to the lex rei sitae, be regulated by the forms 
 of the country where the act is done.) X, 
 
 In particular, this will determine the liability of the heir, 
 for his ancestor's debts — e.g., whether the heir is liable for the 
 whole or only for a part, personally liable or only to the 
 amount of what he takes^ (cf, however, supra, § 107, note 
 41 ei seq.), the obligation to collate,^ and the duties exigible 
 on the succession.* 
 
 Some jurists^ propose that the law of the place where the 
 greater part of the inheritance lies should always rule. This 
 proposal rests upon an erroneous application of the provisions 
 of the Roman law as to jurisdiction in Fideicommissa, provi- 
 sions which have nothing to do with local law.* 
 
 Others propose that the law of the last domicile shall be 
 applied to all questions under this head, although for aU 
 other questions of succession they regard the lex rei sites as 
 regulative. The reason on which they justify this view'^ — 
 viz., that the obligations of the heir arise from a quasi con- 
 tract, which must be held to have been entered upon wherever 
 the last domicile (domus mortuaria) may have been — is 
 
 2 Judgment of the Supreme Court of Berlin, 17th Dec. 1855 (Striethorst, 
 19, p. 186) : " The legal position of a foreigner domiciled abroad with regard 
 to an inheritance which has fallen to him in Prussia, and specially with rela- 
 tion to questions of vesting and entering upon the inheritance with or with- 
 out reservation, is to be determined by the law of Prussia." (The defender 
 was sued as being heiress to an estate, and by the A. L. E. 9, §§ 307 and 379, 
 there is no need of a declaration of having entered upon it.) For the lex rei 
 sitcB we have Burgundus ad Consuet. Plandr. ii. 16 ; Merlin, E^p. Dette. § 4, 
 No. 1 ; Burge, iv. p. 724. For the lex domicilii, Bouhier, chap. 24, No. 186 ; 
 Giinther, p. 735 ; J. Voet, in Dig. 29, 2, § 31 ; BouUenois, i. pp. 277, 280, 
 538. 
 
 8 So Schaffner, p. 179-80 ; BouUenois, i. pp. 275-76 ; Burge, iv. p. 730. It 
 is, of course, obvious that if one who is under an obligation to collate does not 
 enter upon the succession, any donation made to him can only be challenged 
 by the other heirs under the conditions set out, supra, p. 336. See BouUenois, 
 as cited, and the case cited by Story, § 486. 
 
 * Judgment of the Supreme Court of Appeal at Liibeck, 28th Feb. 1857 
 (Frankfurt Coll. 3, p. 112). 
 
 ^ E.g., Paulus de Castr. in L. fin fidei comm. 50, D. de jud. 5, 1. Cf. L. con. 
 0. 3, 17. 
 
 » See against this, Savigny, § 376 ; Guthrie, p. 281. 
 
 ' See, for instance, J. Voet, as cited. 
 
§ 113.] 483 
 
 condemned and refuted by their own general theory,* by which 
 succession is held to be a mere transmission of the various 
 assets of property to the heir. Their mistake is accounted 
 for in this way, that they apply the lex rei sitce to cases of 
 conflict between territorial laws that hold the theory of a 
 universal succession ; accordingly, the grossest inconsistencies 
 in questions as to the taking up of the succession and the 
 liability of the heir are found to arise in attempting to apply 
 this general theory. 
 
 It follows from the principles of the law of obligations that an 
 obligation arising from a quasi-contract, such as an enactment 
 regulating the relation of one party to other parties and to 
 things is necessarily limited to the territory where the inheri- 
 tance is, and therefore, where there is a universal succession, 
 to the territory where the deceased had his domicile ; and 
 that, therefore, a person domiciled abroad cannot without his 
 own consent be personally put under obligations by the 
 vesting of a succession in him, unless the case is the same by 
 the law of his own domicile, or unless he was at the domicile 
 of the testator when the inheritance fell to him. JE.g., by the 
 Prussian A. L. R (i. 9, § 368) the succession vests in the 
 heirs ipso jure. If the heir is domiciled in a country where 
 Eoman law rules — e.g., in the town of Hanover — he will not 
 come under personal liability, although he allows the period 
 which the Prussian law assigns (A. L. R. i. 9, §§ 384 and 
 421) for deliberation and making up of inventories to pass 
 by without taking any steps, unless during this period he 
 resides in Prussian territory. It is at variance with the 
 principles of international law that inhabitants of one country 
 should be put under obligations by the law of another 
 country without their consent, and without having left their 
 own territory (cf judgment of the Supreme Court at Berlin, 
 1st Nov. 1850, Decis. 20, p. 204). All that the courts of 
 Prussia or the next heirs and the creditors could do would be 
 to require the heir domiciled in Hanover to make his 
 
 * See against this, Merlin, as cited : — " Le quasi contrat qui risulU de 
 I'apprehension, que fait uti heritier des biens du d&funt, se passe certainement 
 dans le lieu, oit les biens sont situds : car ily a autant de successions que de 
 coutumes." 
 
484 [§ 113. 
 
 election -within a definite time, and if that elapsed without 
 his taking any step, then the consequences provided for such 
 a case by the Eoman law* would follow, unless the Prussian 
 law is more favourable to the heir in the event of his taking 
 up the inheritance.^" 
 
 The common law of England exhibits a peculiarity in its 
 rules for taking up a moveable succession. The heir must 
 obtain authority from a competent court to enter upon 
 possession of the moveable estate — letters of administration 
 — and then pay the creditors of the deceased and his legatees 
 in mobilibus, under the superintendence of this court. ^^ This 
 rule is applied to any moveable estate of a foreigner which 
 may happen to be in England. The title of the heir to 
 obtain letters of administration is, however, regulated by his 
 lex domicilii, and this procedure takes place not only when 
 the whole aggregate of a succession is in question, but even 
 when a claim is made before the court to some one asset 
 falling to the heir. Its object is to give security to the 
 creditors and legatees, and its application to the moveable 
 estate of foreigners situated in the country must be held, 
 according to the principles of international law, to be as 
 sound as to determine the rights of preference among the 
 creditors according to their own law.-'^ 
 
 It seems doubtful, and it is, in view of the multiplicity of 
 commercial relations, a question of interest, whether one who 
 has paid to an heir abroad i/a bona fide, before he has 
 obtained letters of administration, is discharged of his debt.^* 
 Now, since the law of England forbids the heir at his own 
 hand to take the inheritance only so far as it is in England, 
 in the first place, a debt paid by an English debtor in another 
 country must be held as discharged," for in such a case the 
 heir has not as a fact been brought into contact with the 
 
 8 Cf. Puchta, Pandects, § 498. 
 
 1" The heir can come under no further obligations than the^law under 
 which the succession falls ■will allow. 
 
 " Cf. Story, § 501 et seq. [See supra, p. 449, note 10.] 
 
 1^ Story, § 524 et seq. It is a kind of bankruptcy procedure. See infra, 
 § 128. 
 
 1' That is when the estate is insolvent. 
 
 " Story, § 5146. 
 
§§ 113, 114.] 486 
 
 debt in England ; and this result is all the more equitable 
 that the debtor could hardly plead in any foreign court that 
 the heir had not yet taken out letters of administration in 
 England. The same would hold good if the debtor sent the 
 sum to the heir who is abroad ; and as in practice letters of 
 administration have no effect upon property which is in 
 transitu, and therefore is not permanently in the country — 
 e.g., a ship — and therefore it is of no importance to determine 
 the immediate situs of the property at the moment of the 
 death of the ancestor/^ the necessity of taking out letters of 
 administration seems logically to be limited to the case where 
 the ancestor possessed for some time an aggregate of property 
 with debts due to and by it, as would be the case if he had 
 had, for instance, a trading house in England. The payment 
 of a debt in any other case would necessarily discharge the 
 debtor. But as regards that event, the practice of England 
 and America is not yet fixed.^® Although, therefore, there 
 may be circumstances in which it is necessary for the heir of 
 a foreigner to take out letters of administration, that wUl 
 furnish no argument for the theory of English and American 
 practice already set forth — viz., that the guardian of a 
 foreigner must be confirmed in England in order to be able 
 to administer the estate there.^' The administration of the 
 ward's estate is conducted in the interest of the ward alone, 
 who is a foreigner and does not belong to the State ; while 
 the supervision of the court in letters of administration takes 
 place in the interest of the English creditors and legatees. 
 
 JD. Rights to Estate whebe there is no Heir, 
 §114. 
 
 The question to which State property is to fall where 
 there is no heir, whether to that in which it is situated, or to 
 that to which the last possessor belonged, is dependent upon 
 whether the right of the State to succeed is to be considered 
 
 J* Story, §§ 519-20. 
 
 '* Story, § 515 et seq. 
 
 ^' Story argues to this effect, § 504. 
 
486 [§§ 114, 116. 
 
 to be a right occupatione or a riglit of consolidation belonging 
 to the feudal superior,^ or as a true right of succession. In 
 either the first or second case, the property will go to the 
 State where the property is situated ; in the last case it will 
 fall to that of the domicile of the deceased, in so far as both 
 States hold the theory of a universal succession, or as the 
 estate is made up of moveables.^ The same rules, too, must be 
 applied in relation to the liability of the State to creditors and 
 legatees. But the State can never rid itself of the obligation 
 to pay the debts that are attached to the moveable estate. 
 (See Savigny, as above.) 
 
 VII. Appendix — Limits of the Teeeitort of the State 
 — Status of Foreign Governments in Questions 
 OF Private Law — Ships — Legal Transactions in 
 Uncivilised Countries — Questions as to Eights of 
 Private Property and Obligations in Time of War. 
 
 § 115. 
 
 Public international law determines the boundaries of the 
 territory of each State,^ and we need only note that the sea 
 to the distance of a cannon-shot from land is reckoned as 
 belonging to the land, although there does not seem to be 
 any very general agreement as to the precise meaning and 
 effect of the rights of sovereignty claimed over what really 
 belongs to the sea, and serves for the common intercourse of 
 nations.^ 
 
 ' So, too, in real estate by the law of England (Blackstone, ii. p. 243 ; 
 Stephen, vol. i. p. 433. 
 
 2 Savigny, § 377; Guthrie, p. 285, from the point of view of the Roman law 
 (cf. Puchta, § 564) decides in favour of the fisk of the domicile. The judg- 
 ments of the French courts cited by Demangeat give all property found in 
 Prance without an heir, moveable and immoveable, to the French State, as 
 things sine domino. By the provisions of the Code Civil, art. 813, the light 
 of the French fisk seems to be regarded as a true universal succession. 
 
 1 See Heffter, § 66. 
 
 3 Cf. Vattel, i. §§ 289, 278; H^lie, p. 507; Ortolan. § 928; Heffter, § 73 ad fin. 
 [In the case of the Franconia, Queen v. Keyn, 2 Exeh. Div. 63, Nov. 13, 
 
 1876, there are instructive opinions on this point by Sir E. Phillimore, who 
 
§ 115.] 487 
 
 The privilege of extra-territoriality, which belongs to foreign 
 sovereigns and their envoys,^ consists in the exclusion of the 
 jurisdiction of the State from these persons, and to a certain 
 extent from things which are in their possession. But that 
 privilege has no influence upon the private legal relations of 
 these persons ; and, again, just as, according to the principles 
 we have adopted, in the case of other persons questions of 
 capacity, of family relations, and of succession,* are determined 
 by the lex domicilii, while obligatory contracts, too, are 
 subject to that law, in so far as bona fides does not require 
 the parties to be subjected to the law of the place where the 
 transaction was carried through, or as the parties do not 
 tacitly or expressly have recourse to some other system ; 
 whereas in the law of things it is impossible to carry out the 
 application of the law of the domicile of one of the parties 
 concerned ;^ in the same way we must exclude it from affecting 
 any of the legal relations of the persons who may claim the 
 privileges of extra-territoriahty. The rule locus regit actum 
 rests, as has been shown,^ not upon any subjection of the 
 parties concerned to the sovereign rights of the State in which 
 the deed was executed, but upon a customary recognition of 
 this rule by the law of the State to which the transaction 
 naturally belongs. There is therefore no reason for excluding 
 the application of this rule in the case of those entitled to 
 
 delivered the leading judgment, and Kelly, 0. B. The question for the decision 
 of the Court in that case was as to the existence of a criminal jurisdiction 
 within the cannon-shot limit, but there are observations as to the limits of the 
 jurisdiction or administrative rights within these limits, and as to the difficulty 
 of exercising these, that touch the point raised in the text. By a statute 
 passed in 1879 (41 & 42 Vict. c. 73), the jurisdiction which the court had 
 declined to assert in this case was conferred upon them.] 
 
 ^ Consuls do not as a rule enjoy this privilege. Cf. Foelix, i. p. 422 ; and 
 on the special position of the consuls of European powers in the East, Heffter, 
 § 245 ad fin. [Held by the Cour de Paris in the case of Bernet v. Herran et 
 Pelletier, 30th June, 1876, that although plenipotentiaries cannot be cited 
 before the courts of France, foreign consuls can, except in matters in which 
 they have acted in their official capacity.] 
 
 * Cf. supra, § 107, as to the application of the lex rei sitce in the law of 
 succession. 
 
 ° See supra, § 57. 
 
 ° Cf. supra, § 34, note 4, and § 35. 
 
488 [§ 115. 
 
 claim extra-territoriality/ since, if tlie opposite view be carried 
 to its logical conclusion, it would render it very difficult and 
 frequently impossible for the privileged persons to contract 
 with the inhabitants of the country in which they may happen 
 to reside.* 
 
 ' The fiction that such persons are in their own country, which, some adopt, 
 goes too far. If that were so, other persons in the ambassador's hotel would be 
 subject to the law of his country. See against that Heffter, § 42, 1. The 
 reasons on which the doctrine rests demand no more than that the persons 
 attached to the embassy, their attendants and the things which they use, 
 should be exempt from any foreign jurisdiction or criminal law. The 
 ambassador's hotel is not recognised as a foreign territory. Any delict com- 
 mitted there by a person not entitled to the privileges must be decided by the 
 law of the land where the hotel is situated. Nor can we urge as an analogy 
 the case of foreign ships of war. The ship of war is only temporarily in the 
 waters of the foreign State, and is always separate from the proper territory 
 of that country like a moveable fortress, while on the other hand the 
 ambassador's hotel is in immediate connection with the soil of the foreign land 
 (cf. Ortolan, § 521, 945 ; Heffter, § 63 ad fin.). There is no question that a 
 creditor can make good a right of pledge or hypothec against the real estate 
 of the ambassador, in so far as he himself does not live in or on it, or use it, 
 if it be a house, as a place of business (cf. Bynkershceck, de foro legatorum, 
 ix. §§ 9-10 ; Foelix, i. p. 425 ; Vattel, iv. § 115), and the same is the case 
 with all real estate which the ambassador does not use for his own purposes 
 or for the service of the State. But a creditor can claim a right of pledge 
 even over articles in the personal use of the ambassador, in so far as he 
 happens to be in actual possession of these articles. In this case he needs 
 no interposition of the authority of the State against the ambassador, in order 
 to make his right good. It will rather be necessary for the ambassador in the 
 case we have put, to bring an action against the creditor who is in posses- 
 sion. On the other hand, a tacit submission of the ambassador to the courts 
 of the State cannot be quoted as if it were an interposition of the Courts. The 
 ambassador cannot subject himself to the jurisdiction of a foreign State with- 
 out the express permission of his sovereign, and every privilege of an ambas- 
 sador might be put aside if the other argument were admissible. (See the 
 argument in the dispute between the Government of H.M. the King of 
 Prussia and the embabsy of the United States given in Wheaton, § 288, p. 287). 
 In doubt, however, it must be held that moveables in possession of the ambas- 
 sador serve his personal want. (Cf. Vattel, as cited, and Foelix, i. pp. 427-28). 
 
 8 Vattel, ii. § 213 ; Wheaton, § 227, p. 287 ; Hefi'ter, as cited. A contract 
 concluded by a foreign sovereign or his representative with a private person 
 is not to be construed by the law of the place where it was executed, in so 
 far as the obligation of the sovereign is concerned, unless it belongs to the 
 ordinary contracts of commerce, and does not appear to be an act of the 
 foreign Government as such. In this way purchases or contracts for delivery 
 of goods made by one Government in the country of another may no doubt 
 
§ 115.] 489 
 
 The jurisdiction tliat ambassadors and consuls claim over 
 the subjects of the countries they represent is no part of 
 our subject ; it belongs to public international law. But 
 any contract concluded before an ambassador or consul 
 between two subjects of the country he represents, must be 
 recognised everywhere as valid in form, since the rule locus 
 regit actum has merely a permissive force,** and the docu- 
 ments in reference to such a contract must be recognised as 
 authentic, provided always that the ambassador or consul has 
 the necessary powers by the law of his State. 
 
 Ships on the high seas and ships of war even in foreign ports 
 are recognised as parts of the territory of the State whose flag 
 they carry in the ordinary and recognised manner.^" Every 
 act done on board a ship on the high seas is held as if it had 
 been done in the territory of the State to which the ship 
 belongs '; but as the stay of passengers on board of the ship 
 is but of short duration, a reference to the domestic law of 
 the contracting parties will be much more easily presumed 
 than in the case of residence in a foreign country, and the 
 force of bona fides to compel the application of the lex loci 
 contractus will be much less readily recognised than on 
 shore. 
 
 The following case suggests difficulties. According to the 
 maritime law of several States in the case of an accidental 
 
 under certain circumstances be decided by the law of the place where the 
 contract was executed, but not in the case of State loans, for example, which 
 are negotiated in accordance with a financial statute or a decree which has 
 been formally published and passed by the sovereign, although no doubt the 
 terms in use at the place of the contract may be of importance in interpreting 
 the contract. A foreign creditor is therefore obliged to be content with a 
 repudiation of the loan of any State by its own enactment, without being able . 
 to compensate himself for his losses, if he happens to be the creditor of the 
 same State, unless the statute has been passed, contrary to the principles of 
 international law, to affect foreign creditors only. As a rule there is no 
 remedy except by diplomatic negotiations. Cf. Vattel, ii. § 21. [Infra, p. 495.] 
 
 * Cf. supra, § 36. From this it follows that in unilateral contracts, an 
 ambassador can avail himself of the forma prescribed by the law of his own 
 country, which many hold a special privilege of ambafsadors (cf. Foelix, i. 
 p. 416). The constitution or transmission of real rights is, of course, 
 excluded. 
 
 1" Cf. Heffter, § 77. Merchant ships in rivers and ports are otherwise dealt 
 with, cf. Heffter, § 66. 
 
490 [§ 115. 
 
 collision of ships, or where the cause of the collision cannot 
 be ascertained, the owners of the two ships must share the 
 loss," while by other laws — e.g., that of England — each owner 
 bears his own loss.^^ The rules laid down supra (§§ 87-88), 
 as to delicts and quasi-delicts, do not apply, since there is no 
 definite territory subject to one sovereign in which the 
 fact has taken place. Since no system of law can lay 
 any obligations save upon persons who are in its own 
 territory, in my opinion no further claim can be made 
 against either party than the law of his own country will 
 allow, and because such a law as that which apportions the 
 loss rests merely upon grounds of equity, and as it would 
 be inconsistent with equity that any law should place its own 
 ship at a disadvantage, no more can be demanded than that 
 which the law of the pursuer's domicile would allow a ship- 
 owner in similar circumstances. If the law of the court in 
 which the action depends were to be exclusively applied, that 
 would imply a claim of sovereignty over ships of other 
 nations upon the high seas.^^ 
 
 " Cf. Prussian A. L. R. ii. 8, § 1911, and the passages from the Maritime 
 Law of Hamburg quoted in Kraut, Grundriss, § 380, No. 6 ; and 407lh article 
 of the French Code. 
 
 '2 Cf. the Allgem. Deutsches Handelsgesetzbuch, art. 736. 
 
 " Cf. Story, § 423, S. L., who hesitates, however, between our rule of 
 reciprocity and the lex fori. Although the judgment reported in § 423fc, 
 note 3, by Story, seemss in its reasoning to support the latter, it proves 
 nothing in its favour, because in that case the forum and the domicile of the 
 defender coincided, and by the law of the forum the defender was not bound 
 to make good the damage. On the other hand, the judgment of the Court 
 of Bouen which Story cites, § 423g, note 3, seems to favour the view takeu 
 in the text. A French ship was run down by an English ship on the high 
 . seas. The Court threw out the action. Story does not, however, give the 
 grounds of the decision, and I have not been able to get sight of them. A 
 judgment of the Supreme Court of Appeal at Liibeck, 30th January, 1849, 
 (Bremer Coll. vol. ii. part ii. pp. 8-10), proceeds on different grounds. It 
 holds the 10th article, § 1, of the Hanseatic Maritime Law, whereby in the 
 case of an accidental collision the ships bear the loss equally, applicable to 
 the case of a collision between two foreign ships. A judgment of the Supreme 
 Court of Berlin, 25th October, 1859, reported in Seuffert, 14, p. 335, agreeing 
 with the theory of the text, makes the law of the domicile of the ship iigainst 
 which the claim is made the primary ground of action. But although the 
 court held it quite competent to take into account at the same time the law 
 of procedure recognised at the seat of the court, it is to be noted that in that 
 
§ 115.] 491 
 
 Contracts concluded in uncivilised countries may, by 
 agreement of parties, be concluded under forms of local law, 
 whicb our legal theories will recognise, or may be so con- 
 cluded tacitly and without express agreement ; or else the 
 parties may subject themselves to the law of some other 
 civilised State within such limits as the prohibitory laws of 
 the State of their domicile will permit ; otherwise, these 
 contracts must be determined by the laws of both of the 
 contracting parties, just as if the contract had been concluded 
 by correspondence without a meeting, or as if the place of 
 the contract could not be ascertained. 
 
 War cannot directly disturb or affect the private legal rights 
 of the subjects of the opposing States,since from a legal point of 
 view it is merely a means of forcing another State to recog- 
 nise or to fulfil a duty, or of repelling an unjust attack ; but 
 yet exceptions are often made as regards the property of 
 subjects of the hostile State, and unjustifiable confiscations 
 are often made under cover of the expressions "embargo" and 
 "reprisals." The right of any Government to visit with con- 
 fiscation the property of its enemies, which it is probable may 
 be used to its prejudice, if it considers such a course to be 
 for its advantage, and to deny to the subjects of a hostile 
 State the right to plead in its courts, cannot be disputed. 
 But the latter step is not a necessary result of war, and a 
 judge is not entitled to reject the suits of alien enemies on 
 that account without instructions from higher authority to 
 do so.^* 
 
 The Roman law makes special provisions for things in the 
 power of the enemy. An undertaking to deliver a fundus 
 hostium is reckoned among undertakings that are actually 
 impossible, and a contract to that effect is held null.^^ The 
 reason was that it was quite impossible according to the 
 views of international relations that then prevailed that there 
 should be any legal transactions in reference to things 
 belonging to an enemy. It was otherwise with things 
 
 particular case the process depended in the country which was the domicile 
 of the injured ship. 
 
 1* Of. Heffter, §§ 123, 140. 
 
 " L. 103 ; D. de verb, oblig. 4, 1 ; Cf. supra, § 2, note la. 
 
492 [%115, N'oteV. 
 
 moveable in the power of the enemy. These might under 
 certain circumstances be withdrawn froni the power of the 
 enemy by means of an acquisition on the part of a private 
 person.^® 
 
 These rules have, however, lost their application in modem 
 times, since the principles of our public law make it quite 
 possible that there may be legal intercourse with subjects of 
 a hostile Government. Obligations with reference to things 
 belonging to such persons are, as a general rule, to be treated 
 like obligations as to any other things. War may under 
 certain circumstances have to be considered as the cause of 
 an interruption of communication, and the delivery of a thing 
 belonging to the enemy may fall under the category of 
 illegal contracts, if all intercourse of that kind with hostile 
 subjects is forbidden." Such a prohibition must, however, 
 be expressly made by Government, since a declaration of war 
 cannot of itself be held to be an absolute bar to trade and 
 commercial contracts, although the law of any State may 
 declare it to be so.-^* 
 
 With regard to modern rights oi postliininium, and parti- 
 cularly the disputed question as to the recapture of ships, we 
 must refer to the treatises on public law, since it would over- 
 step the limits of this work to enter upon any thorough 
 discussion of those questions.^' 
 
 iVofeU, OTO§ 115. 
 
 [That the fiction of the ambassador's hotel being part of the 
 territory of his country is not carried to its legitimate con- 
 clusions, is proved by the judgments of the courts of Austria 
 and of France, to the effect that marriages celebrated between 
 natives of the country to which the ambassador is accredited,' 
 or between one native of that country and a woman of the 
 
 1' L. 104, § 2, D. de legatis, i. : " Etiam rem, hostium posse legari, Sabinus 
 ait, si aliquo casu emi possit." Cf. on the whole matter, Moiiimsen ; 
 BeitrHge zum obligationenrecht, i. pp. 15-16. 
 
 " Mommsen, as cited above. 
 
 18 Heffter, § 123. 
 
 i» Cf. Heffter. §§ 187-89. 
 
Note TJ.] 493 
 
 same nationality as the ambassador, in the chapel of the 
 embassy, according to the forms of the ambassador's country, 
 are not recognised as valid, although if they had really been 
 celebrated in his territory they would have been recognised. 
 An Austrian married an Englishwoman in English form in 
 the chapel of the English embassy in Vienna ; that marriage 
 was held null by the Supreme Court of Austria, 1 7th August, 
 1880 : and similarly a marriage between two French people 
 in the hotel of a foreign ambassador was held null by the 
 Tribunal de la Seine, 2nd July, 1872. (The judgment 
 is given at length by Eraser, Husband and Wife, p. 1539). 
 
 No doubt English courts have held that marriages cele- 
 brated in the residence of an ambassador of England, where 
 only one of the parties is English, are vaUd, and that has 
 been by the legislature declared to be the law in cases where 
 a marriage is celebrated between a foreigner and a British 
 subject before a British consul duly authorised to perform 
 such marriages (4 Geo. IV. c. 91, expounded by Dr. Lushing- 
 ton, in Lloyd u Petitjean, 1839, 2 Curteis, 251 : and 12 and 
 13 Vict. c. 68) ; but a statute of the British Parliament can 
 never make these marriages valid in the country where they 
 are celebrated, and the necessity of passing statutes to legalise 
 them in England is an additional indication that the fiction 
 of the ambassador's house being the territory of his country 
 is not accepted as sound. The result of these statutes 
 is that a marriage, which is good in England, will not be 
 recognised anywhere else. (See Dr. Lushington's opinion, 
 ut supra). 
 
 That the foruTn rei sites is not excluded by the fact of 
 the ownership being in a foreign sovereign or ambassador is 
 recognised in the law of England;^ the considerations on 
 which English courts have based the doctrine of extra-terri- 
 toriality — viz., the independence of a foreign sovereign, and the 
 courtesy which induces courts to refrain from anything that 
 would prejudice the dignity or interfere with the functions of 
 a foreign sovereign or his representative, do not apply where 
 the existence of real property gives a means of execution that 
 
 ^ The Khedive of Egypt has been held to be no independent sovereign 
 (Charkieb, 7th May, 1873, A. and E. iv. p. 59, Sir R. Phillimore). 
 
494 [Mte U. 
 
 does not involve any personal diligence. By parity of reason- 
 ing it has been held in the courts of England and America 
 that a proceeding in rem, such as tlie attachment of a ship 
 belonging to a foreign sovereign and engaged in trade (for 
 ships of war being for Ms public service cannot be seized), 
 will give jurisdiction over a foreign State or foreign sovereign. 
 Trading by a foreign sovereign will cause the exemption 
 accorded to him in his public capacity to cease. In the case 
 of the United States v. Wilder, 3 Sumn. U.S. 308, the ques- 
 tion was whether property belonging to the Government was 
 liable to make contribution in a case of general average, and 
 this claim was attempted to be enforced by lien : Mr. Justice 
 Story was of opinion tbat the fact that a lien was the only 
 method of enforcing the liability was the best reason possible 
 for sustaining it. He said : " A distinction has often been 
 taken between writers on public law, as to the exemption 
 of certain things from all private claims, — as, for example, 
 things devoted to sacred, religious, and public purposes — 
 things extra commercium and quorum non est commercium. 
 That distinction might well apply to property like public 
 ships of war held by the sovereign jure coronce, and not be 
 applicable to the common property of the sovereign of a 
 commercial character, or engaged in the common business of 
 commerce." The public property of the sovereign is dis- 
 tinguished from other property not belonging to the State 
 Establishment, in the case of the Schooner Exchange v. 
 M'Faddon, 7 Cranch. U.S. Supreme Court, Eep. p. 116. 
 
 In the case of the GharJdeh, wbere it was sought to 
 enforce a damage lien by proceedings in reus — viz., against a 
 ship belonging to the Khedive of Egypt — Sir R. Phillimore 
 held that the Khedive was not entitled to the privileges 
 of a sovereign ; but although this ground was sufficient to 
 dispose of the case, be delivered an elaborate judgment to the 
 effect that where by proceeding in rem against the property 
 of a foreign sovereign the indignity of personal execution or 
 service of the summons can be avoided, no ground for a plea of 
 extra-territoriality exists. " The object of international law, 
 in this as in other matters, is not to work injustice, not to 
 prevent tbe enforcement of a just demand, but to substitute 
 negotiations between Governments, though they may be 
 
Note JJ.] 495 
 
 dilatory and the issue distant and uncertain, for tlie ordin- 
 ary use of courts of justice in cases 'where such use would 
 lessen the dignity or embarrass the functions of the repre- 
 sentatives of a foreign State ; if the suit takes a shape which 
 avoids this inconvenience, the object both of international 
 and ordinary law is attained, — of the former, by respecting 
 the personal dignity and convenience of the sovereign, of 
 the latter, by the administration of justice to the subject." It 
 was not, however, necessary to decide this point, and the 
 reasoning has been questioned in a later case (Parlement 
 Beige., 1879, L. R 4, P. D. 129). See Westlake, too, p. 212, 
 §180. 
 
 A foreign Government is presumed to contract under its 
 own laws, but may voluntarily subject itself to the law 
 of another country (Gouvernement Ottoman v. Comptoir 
 d'Escompte, Trib. Civ. de la Seine, 3rd March, 1875). If the 
 bankers who issue a foreign loan come under personal guar- 
 antees to subscribers, they may be called upon to make these 
 good in the courts of the country to which they belong, 
 although the foreign Government cannot be cited (Drey- 
 fus V. Dreyfus Gellinard, &c., C. de Paris, 25th June, 
 1877). 
 
 Similarly, the English courts have held that when the 
 Government of a foreign State contracts a loan in another 
 country, that contract is governed by the law of the State 
 whose Government contracts the debt, and not, as would be 
 the case with private persons, by the law of the country in 
 which the contract is made. So, where the Peruvian, Govern- 
 ment had contracted a loan on the security of a quantity of 
 guano, which was hjrpothecated in the hands of an agent in 
 England for payment of the loan and interest, the Court of 
 Chancery refused to compel payment out of the proceeds of 
 the sale of this guano, holding that it had no power to 
 enforce a personal obligation undertaken by a foreign Govern- 
 ment. (Weguelin, 1869, L. R. 8, Eq. 198). 
 
 The question of the jurisdiction of foreign courts in such 
 matters, and the conditions under which action has been 
 allowed or refused against foreign States or sovereigns as 
 against private persons, is further discussed infra, note to 
 § 130.] 
 
Jourtij Part 
 
 CIVIL PKOCEDUEE. 
 
 I. General Principles — Scope of the Subject — Volun- 
 tary Jurisdiction — Publica Fides oe Officials. 
 
 § 116. 
 
 The subject of civil procedure deals with the determination 
 and realisation of private rights by means of. the agencies 
 established by Government ; these rights are determined by 
 the sentence of the judge, and are realised by decrees of the 
 magistracy or application of the rules of diligence, if the 
 parties fail of their own accord to follow out the terms of 
 that sentence. 
 
 It is indisputable that rules of diligence can only be 
 brought into play in accordance with the law of the place 
 where it is proposed to use them ; any application of a rule 
 of diligence, whether by an official or by a creditor or suc- 
 cessful party in a suit, where such persons have a right so to 
 enforce their claims, without the sanction of the law, would 
 imply an excessive use of the authority conferred by the 
 State, and could not by any means be justified by the argu- 
 ment that by the law of another State other officials or 
 private persons had different rights. 
 
 Civil procedure, also, in the narrower sense in which it is 
 terminated by the sentence of the judge, can only proceed in 
 the forms prescribed by the law of the country where the 
 court is. 
 
§ 116.] 497 
 
 In the first place, as a matter of fact, it is plain that it 
 will be impossible to observe many of the forms required at 
 the place where the contract was made or the parties were 
 domiciled, because the State before whose court the process 
 depends has not the pubUc arrangements and officials neces- 
 sary for the purpose ; but it is besides quite inconsistent with 
 the whole nature of civil procedure to apply foreign forms of 
 process, although it might be perfectly possible in a particular 
 case. The whole end and object of procedure is to persuade 
 the court that the rights which are claimed or challenged do 
 or do not exist, and as, in the case of an individual, per- 
 suasion is only possible according to the peculiarities of that 
 individual, the State, in the same way, represented by its 
 courts of justice, can only allow itself to be persuaded accord- 
 ing to the pecuHar regulations under which it has placed 
 itself. 
 
 It would appear as if we must be contented with laying 
 down this rule, — viz., that in the law of procedure we can 
 apply only the law of the country where the court hes,^ — fur- 
 nishing also an answer to the question whether certain rights 
 and duties connected with methods of procedure are or are not 
 exclusively applicable to the natives of that country. But, 
 on closer consideration, the following questions are found to 
 be part of our subject. Many laws are only apparently rules 
 of procedure, but, in truth, are material laws, or, at least, 
 are so mainly.^ For, just as in older systems of law, legal 
 relations are very frequently embodied in the forms of 
 judicial procedure, so it is far from uncommon, even at the 
 present day, to explain the legal import of particular facts by 
 the form in which they must be presented in pleading before 
 
 1 Cf., e.g., Bald Ubald, in L. 1 C. de S. Trin. ; Burgundus, v. 1 ; Eodeii- 
 burg, ii. p. 1, c. 5, § 16 ; J. Voet, in Dig. 5, 1, § 51 ; Mevius, in Jus. Lub. 
 Proleg. qu. 4, § 6 ; Hert, iv. ; Bouhier, chap. 28, v. 87 ; Boullenois, i. pp. 
 528, 544-45 ; Mittermaier, Arch. f. d. Civil Praxis, 13, p. 298 ; Mass^, ii. No. 
 220 ; Seuffert, Comm. i. p. 260 ; Pardessus, v. Ko. 1496 ; Burge, iii. p. 1054 ; 
 Wheaton, § 94, p. 125 ; Story, § 556 ; Thol, § 77. 
 
 2 The older writers distinguish between litis ordinatoria and litis decisoria. 
 Cf. Paul de Castr. in L. 1 C. de S. Trin. ; Eodenburg, ii. p. 2, c. 4, § 5 ; 
 Boullenois, i. pp. 535-36 ; Mittermaier, as cited ; Schaffner, p. 201 ; Heffter, 
 p. 75. 
 
 2 K 
 
498 [§ 116. 
 
 a court, and according to the conditions and limitations 
 imposed upon that presentation to the court. We must not 
 deny to a law, which treats of the method of setting a right 
 before the court, all influence upon the material legal relation 
 which is to be discussed ; and if, for instance, it is enacted 
 that a certain state of facts shall not be considered as valid 
 either to found an action or to meet it, the result, of course, 
 is to declare that that state of facts shall not give rise to any 
 rights, a form of expression which rests upon the considera- 
 tion that it is only such facts as can be in some way pleaded 
 in an action, that can be said to have the character of legality 
 at all. The question does not depend upon whether the law is 
 on its face described as a rule of process, but rather whether its 
 sole object is the determination and actual realisation of some 
 legal relation which has already come into existence.^ It is, 
 therefore, another part of our task to exclude from the 
 rule above stated all enactments which only apparently regu- 
 late the law of procedure. 
 
 The object which is in view — viz., the final determination 
 and realisation of disputed private rights — cannot be attained 
 in any other way than by allowing that the process itself shall 
 confer new rights on the parties. If the final judgment is to 
 determine finally the existence or non-existence of the legal 
 relation in dispute, this cannot be reached in any other way, 
 since all courts may err, than by holding that the force of 
 such a judgment shall be to establish or to destroy the legal 
 right contended for, although the facts on which it proceeds 
 are false, or the conclusions drawn from them unwarranted. 
 Is the judgment of the court of a foreign country to have 
 this effect allowed to it, and, if so, under what conditions ? 
 This question, too, must be answered in this division of our 
 subject. 
 
 Lastly, it may very well be that some particular steps of a 
 process can, as matter of fact, proceed only in a foreign State, 
 and before its judicial officers. Then the question arises, 
 whether these steps, taken in accordance with the rules of 
 the foreigji Government to whom they have been committed, 
 
 5 See, for instance, what has been said above (§§ 64 and 80) as to the limits 
 of vindication and as to piescription of actions. 
 
§ 116.J 499 
 
 are to be recognised as valid in point of form by the court 
 ■where the suit depends ; and, further, under what conditions 
 a court, or any official who represents the judge,* is to carry 
 out such steps of process as representative of a foreign power 
 and at its request. 
 
 On the other hand, the subject of voluntary jurisdiction — 
 i.e., of the public authentication and confirmation of legal 
 transactions on the one hand, and of certain police docu- 
 ments on the other, which do not, as a rule, take place 
 exclusively before courts of law, but, in most States^ to a 
 certain extent, before other officials and persons holding a 
 public authorisation, but with no magisterial power — does not 
 come under the head of Civil Procedure. This much, how- 
 ever, may be said here on this subject. 
 
 It has been maintained that acts or documents of voluntary 
 jurisdiction are to be recognised as valid in all countries if 
 they have validity in the country in which they have been 
 executed. But in truth we can lay down no general rule on 
 that matter. Although the documents issued by an official 
 in the due exercise of his powers, and under the sanction of 
 all the forms required by the law of his country, make faith 
 in any court,^ it by no means foUows that the document in 
 
 * In many States it is not the court or its officials, but certain other public 
 officials, upon whom is laid the duty of carrying judicial determinations into 
 execution. This fact has not, of course, any bearing upon the question to be 
 answered here. The question to what officials or public body in any particu- 
 lar State the party or the foreign court should apply, is obviously dependent 
 on the regulations of the State in question, and does not admit of any general 
 answer. 
 
 ^ See Foelix, ii. p. 202 ; Story, § 632. No publica fides can be given in a 
 foreign country to an official document if any particular form has been 
 neglected, such as the subscription of parties, a case to which the law of the 
 official himself attaches a nullity. Story, §§ 260-62a, and judgment of the 
 Supreme Court of Stuttgart, 7th December, 1820 (Seuflfert, viii. p. 812). 
 There is no exception in the case of an omission of the stamps required by law, 
 for we have not there to consider the grounds upon which this or that law 
 will refuse publica fides to documents of an official nature. The Hanoverian 
 regulations for procedure are to a different effect, 1850, § 231 : "Evidence 
 taken before any foreign court may be admitted if it is good, either according 
 to the legal forms there recognised, or to those prescribed by the present 
 regulations on that matter." The presv/mtio legalitatis, a necessary result of 
 publica fides, is to be claimed for documents issued by foreign officials just as 
 
500 [§ 116. 
 
 question is valid and effectual all tlie world over. That 
 rather depends upon the local law which regulates the legal 
 relation in question in its other aspects, in so far as the rule 
 locus regit actum does not apply.'' All that can safely 
 he said is, that a deed of any official which is in proper form 
 proves that he or some one in his presence at a particular 
 time did a particular thing or made a particular deduction. 
 
 This Publioa Fides,'' universally attached to documents 
 issued by the officials of a country within the limits of their 
 jurisdiction, rests upon a universal law of custom, without 
 which there could scarcely be any regular intercourse among 
 the inhabitants of different States. We may assume that every 
 civilised State will take care that its officers do not give any 
 false testimony as to documents executed by them or in their 
 presence. This portion of the law cannot, however, be referred 
 to the rule locus regit actum : the notion of the headship 
 of the emperor, and the derivation of aU jurisdiction from 
 Mm entertained in the Middle Ages, has contributed to it, and 
 so, too, and in a substantial degree, has the general custom 
 of putting officials on oath.' Every circumstance tends to 
 show that the rule locus regit actum has more probably, 
 on the other hand, arisen from the general recognition of the 
 doctrine of Puhlica Fides.^ 
 
 Before any Publico, Fides can be given, of course the 
 authenticity of the deed must be proved. Since the seal and 
 subscription of the public officials are not sufficiently well 
 known beyond the limits of their own country, this is effected 
 by legalising the document by affixing the great seal of the 
 sovereign^" from whose officials the document proceeds, or 
 by an attestation of its genuineness from the ambassador or 
 
 much as for those of officials in this country. See a judgment of the Cour de 
 Rennes of 6th April, 1836 (Sirey, xxxv. 2, p. 55), and supra, § 32, note 11. 
 
 ° Poelix, ii. p. 187, inaintains the universal validity of such documents, but 
 he adds that the import of such a document must yield to the law to which 
 the transaction in question, or the persons concerned, are subject. 
 
 ^ Cf. Merlin, Questions, Vo. Authentique (Acte), § 2. Foelix, as cited; 
 Massd, No. 269 ; Piittlingen, § 124 ; Code Civ. arts. 47, 170, 999. 
 
 * Foelix derives it from the rule locus regit actum, ii. p. 201. 
 
 3 See above, §§ 34-35. 
 
 ^° This as a rule proves itself. Story, § 643. 
 
§ 116.] 501 
 
 consul of the State in which it is to be used ; ^^ the latter is the 
 ordinary rule of procedure. But in cases of necessity there are 
 other ways in which evidence maybe led — e.g., by witnesses ; — ^^ 
 and in adjoining States no particular proof of authenticity is 
 required ; this is the case, as a rule, in the German States.^* 
 Officials and notaries in many countries do not give the 
 parties the original documents, but merely certified copies, 
 and preserve the originals in their records. In my view, it 
 is the law of the State whose officials have assisted in the 
 execution or preparation of the document that must deter- 
 mine whether these copies are to make faith in another 
 country or not." The only question that can be asked is 
 whether the official or notary is empowered to multiply 
 documents executed in the presence of the parties without 
 again requiring them to be present. If we were to require 
 parties ia such cases to produce the original papers, we 
 would be asking for impossibilities, if it be the fact that the 
 officials or notaries are forbidden to part with them. The 
 EngUsh courts require proof of authenticity even in the case 
 of these copies, because they are dealing with the value 
 
 ^' It depends upon the organisation of the ofiBcials of each State, and the 
 agreements which have been made by one State with another, whether any 
 other officials of a State must authenticate the documents issued by inferior 
 officials and notaries before the diplomatic representative will authenticate 
 them, and if so, which officials. See Foelix, i. pp. 434-35. Piittlingen, as cited. 
 
 12 Story, §§ 639-41. 
 
 1^ Judgment of the Supreme Court at Berlin, 23rd October, 1855 (Striethorst, 
 1856 series): "Diplomatic authentication is not in itself essential. . . .Where 
 the authenticity of the document is clear from the weight of circumstances, 
 and requires no special proof, and there is no ground for suspecting it, then 
 no further process of authentication seems to be required. The instructions 
 given by the ministers of justice and of foreign affiiirs on 22nd March, 1833, 
 rest on this principle." (V. Kamptz. Jahrbiicher fiir die Preussische 
 Gesetzgebung, vol. xli. p. 220.) Eenaud, Wechselrecht, § 7, note 18. In 
 England, no special authentication of documents from foreign admiralty courts 
 is required. They are held to be courts of the law of nations, and their 
 records obtain faith everywhere. But since these courts derive their authority 
 from some particular Government, the true reason probably is that documents 
 and records of this kind are often produced before admiralty courts in Eng- 
 land, and therefore the seal and subscriptions are so well known, that to prove 
 them would be a useless formality, and one that would impede commerce. 
 
 " Foelix, ii. § 305, p. 25. 
 
502 [§§116,117. 
 
 whicli the documents are to receive as evidence, — and that is 
 to be determined according to the lex fori}^ 
 
 In the case, too, of documents which were originally- 
 executed by private persons, or rest upon their testimony, 
 but make faith in public by virtue of some solemnity per- 
 formed by a public official, the authenticity which is accorded 
 to them by the law of the place where they were executed is 
 to be recognised in foreign countries also.^^ It can make no 
 difference whether it is an official or a private person to whom 
 the State accords public faith under certain conditions ; the 
 only distinction between them is that under the supposed 
 conditions one enjoys publica fides temporarily, the other 
 permanently. It must, however, be proved or be notorious 
 that this exceptional power really has been given. 
 
 Lastly, it is incorrect to say that an act of voluntary 
 jurisdiction can ever become a real law-suit,^^ although in 
 cases where we have to do with an act of police, ^^ parties 
 interested in it may make representations, offer proof, and 
 raise objections before the court according to the forms of 
 true actions at law ; while, if the proposed act requires that 
 the persons concerned shall be vested with certain rights, ^^ 
 the intimation of the intention of these persons to execute 
 that act may be the occasion of a law-suit. It is, however, 
 important to refute this contention, because in international 
 intercourse an entirely different treatment of acts of conten- 
 tious and of voluntary jurisdiction is observed. 
 
 II. The Parties : their Legal Kepresentatives and 
 Advisers — Persona standi in Judicio. 
 
 § 117. 
 
 (1.) The capacity of pursuing an action or of defending one 
 in court is, in so far as it is an effect of general legal capacity 
 
 w Story, § 635e. 
 
 1' Mass6, p. 355; and the judgment of the Court of Cassation at Paris, 6th 
 February, 1843, reported there. 
 
 i» Foelix, ii. § 464, p. 199. 
 
 1* E.g., the procedure by which disponing power is withdrawn from a 
 spendthrift. 
 
 1' E.g., the possession of a good title by the person who pledges real 
 property. 
 
§ 117.] 503 
 
 and of capacity to contract, to be regulated by the law tliat 
 determines that capacity .^ It is a result of the general 
 principle of the equality of natives and foreigners in the eye 
 of the law — that no foreigner, simply because he is a foreigner, 
 will be denied legal remedies. In time of war the Govern- 
 ment^ must proclaim that the rights of alien enemies to sue 
 are suspended.^ 
 
 On the other hand, it is a mere question of form, and, as 
 such, dependent on the lex fori, whether a party can carry 
 on a process of law in person, or nlust avail himself of .the 
 machinery appointed for that purpose — i.e., sohcitors and ad- 
 vocates ; and also whether a party can sue alone or requires 
 the concurrence of certain persons.* This law, in the same 
 way, will decide whether written or oral pleadings are com- 
 petent. 
 
 (2.) The question as to whether the pursuer has a good title 
 to make the claim in question against the defender, apart from 
 its objective existence — i.e., legitimatio ad causavfi — is de- 
 pendent upon the law to which the legal relation in question 
 is subject. In particular, the lex fori will not decide whether 
 the pursuer must make his claim in his own name and right, 
 or as an assignee ; that question depends for its solution 
 purely upon whether it is possible to transfer to other persons 
 the right which is in dispute, or the privilege of exercising 
 it.« 
 
 (3.) The mutual obligations of the parties, in so far as they 
 arise from the suit, are to be determined by the lex fori ; so, 
 too, is the obligation to make good the costs of process, and 
 to find caution for expenses.^ 
 
 1 See FcBlix, i. p. 86 ; Story, § 77 ; Schaffaer, p. 204 ; Judgment of the 
 Supreme Court at Wolfenbiittel, 20th Jan. 1858 (Zeitschrift fiir Eeehtspflege 
 ira Herzogthum Braunschweig, 1858, p. 81) : " The question whether a father 
 is bound to allow himself to be sisted in a process for his daughter, who is in 
 familia, must be determined by the law of the domicile." 
 
 2 See supra, § 27, note 12, and § 115 ad fin. 
 
 ^ For the view taken by the French courts, that foreigners have no right to 
 sue each other there, see infra, § 118, and note on that section. 
 
 * See remarks on the guardianship of women, supra, § 53, and Schaffner, 
 pp. 204-05 ; Linde, Civil Process, § 41, note 4. 
 
 5 See supra, pp 303-04. 
 
 " P. Voet, X. § 8 ; Schaffner, p. 202. 
 
504 [§ 117. 
 
 It is a disputed question whether, where the law requires a 
 pursuer who is a foreigner to find caution for expenses/ this 
 rule is to be applied where the defender is also a foreigner. The 
 French practice has laid it down that the right to demand 
 that a foreigner shall find caution belongs to the droits civils,^ 
 Avhich no one but a French subject, or a person domiciled by 
 the license of the Government in France, can exercise. But 
 the special obligation laid upon foreigners to find caution, 
 which exists in almost all countries in spite of the equality 
 established between foreigners and natives in all other legal 
 relations, rests simply upon the fact that the foreigner can 
 more easily withdraw himself from the execution of the sen- 
 tence of the court, and put the defender in a specially dis- 
 advantageous position, which is remedied by requiring caution. 
 The fact which is most strongly pressed as showing that it is 
 a special privilege of natives to require caution — viz., that 
 a foreign defender needs not to find caution although he 
 may cause expense to his opponent just as much as a pursuer, 
 and withdraw himself as easily from diligence for its recovery 
 — is to be explained by the naturally -advantageous position 
 of the defender. It would obviously outrage all feelings of 
 justice to allow judgment to go against a foreigner just because 
 he was not in a position to find caution. Since, therefore, the 
 obligation to find caution is founded, not on any privilege, 
 but on the disadvantages to which a foreign defender may be 
 exposed, the right of requiring caution cannot be refused in 
 cases where one foreigner is suing another, and a distinction 
 of this kind cannot be read into the law if it is not therein 
 expressed.^ 
 
 ^ See Code Civil, art. 16 ; Code de Procedure Civile, art. 166 ; Hanno- 
 versohe biirgl. Processordnung, 1850, § 54. 
 
 8 See the Arrets du Cour de Pau, 13th Deo. 1836 (Sirey, 36, 2, p. 3R2) ; 
 Cour d'OrMans, 26th June, 1828 (Sirey, 28, 2, p. 193) ; Fcelix, i. p. 291 ; the 
 judgment of the Court of Cassation of 15th April, 1842, reported there at p. 
 294 ; and Gand, No. 325. [C. de Nancy, 14th June, 1871 ; C. de Douai- 
 Aiickaert v. Delmoitiez, 28th June, 1877. No length of residence will 
 give a foreign defender who has no Government authority to live in France, 
 the right to require caution from a foreign pursuer.] 
 
 8 For the view taken in the text see Demangeat on Fcelix, i. pp. 293, 297 ; 
 Mass^, p. 336, note 1, and the authors there cited ; .also a judgment of the 
 
§ 117.] 505 
 
 The defender, however, who seeks a legal remedy against 
 a judgment, or challenges the validity of an arrestment, is 
 not to be held to be a pursuer, although in such procedure 
 he may formally be so ; for there is no doubt that such a 
 defender is substantially within the protection accorded to 
 defenders, ^"^ while his opponent must certainly find caution 
 for expenses." 
 
 (4.) We need not set out at length that the lex fori must 
 determine the competency of conjoining several persons as 
 pursuers or defenders, and of introducing other persons 
 besides those who were originally concerned into the pro- 
 cess. 
 
 (5.) The rights and duties of the legal advisers with a 
 licensed position, and of procurators in a suit, will be regu- 
 lated, as far as questions with foreigners are concerned, by 
 the law that is recognised at the seat of the court where they 
 hold their position. Although the representation of the 
 parties, and the introduction of legal advisers into an action, 
 rest in every case upon a contract, the powers of solicitors 
 and advocates reaUy rest upon a license conferred by the 
 State, and in some respects may well be compared to a pub- 
 lic office. No party need contend, therefore, that he may 
 settle the cost of his representation by such persons in any 
 other way than is sanctioned by the law that prevails at the 
 seat of the court : parties subject themselves to the dues 
 there exigible.^^ On the other hand, we can imagine a case 
 where the mandate given to a solicitor would have to be 
 determined by the law of the domicile of the party, and not 
 by that of the seat of the court, although we may have as a 
 general rule to assume that there has been a submission to 
 the law recognised at the place where the authority was con- 
 
 Supreme Court of Appeal at Cassel, 14th Oct. 1856 (Heuser, Annalen, 4, 
 p. 688). [Of. also D'Ernesti v. D'Ernesti, 11th February, 1882, 9 E. 655.] 
 
 ^^ See Foslix, i. pp. 392-93, and the judgments of French courts reported 
 there. 
 
 " Fcelix, i. p. 395. 
 
 '^ As a matter of fact the taxation of an account for services rendered can 
 only take place before the court where the solicitor or advocate has done his 
 work. 
 
506 [% 117, NoteV. 
 
 ferred, if it was so conferred, at the seat of the court, or 
 according to forms in use there. ^^ 
 
 Note V, OTO § 117. 
 
 [In England, a plaintiff may be required to find caution if 
 he is beyond the jurisdiction of the court, unless that absence 
 is merely temporary ; and it would seem that such caution 
 may, in the discretion of the court, be required even in cases 
 where the defender is also a foreigner. By the law of Scot- 
 land, a foreign pursuer " is required to provide a mandatary 
 resident in Scotland, to be responsible to the Court for the 
 conduct of the cause, and to the opposite party for expenses 
 in which the mandant is found liable " (Mackay, Practice of 
 the Court of Session, i. p. 458). This rule is applicable 
 even to a Scots pursuer resident abroad, or leaving Scotland 
 during the dependence of the suit. If he is resident in Eng- 
 land or Ireland, he is not required to. do so, unless there are 
 some other circumstances than his absence from Scotland 
 that render it proper he should do so (Lawson's Trs. 1 R. 
 1065, 20th June, 1874). The order to sist a mandatary is 
 entirely in the discretion of the Court, and the considerations 
 in respect of which such orders are made seem to apply none 
 the less forcibly in cases where the defender as well as the 
 pursuer is a foreigner. (Cf D'Ernesti, ut supra, p. 505.) 
 
 By the Civil Processordnung applicable to the German 
 Empire, a foreign pursuer must find caution for expenses if 
 required to do so, unless (1) a German is entitled to sue in 
 the courts of the pursuer's country without caution ; (2) 
 there are counter-claims depending elsewhere ; (3) the action 
 is brought in consequence of some public notice or summons 
 — e.g., a call to lodge claims in a bankruptcy ; (4) the ques- 
 tion is as to some right dependent upon entries in a register 
 
 13 By the Hannoversche Processordnung (8th Nov. 1850), § 72, the procura- 
 tor who has general authority has power to compromise, while the contrary is 
 the case with the common German law of procedure. Cf. Bayer, Vortrage 
 liber den gemeinen ordentlioh. Civil Process, 8 ed. p. 349. The lex fori 
 determines whether it is necessary that the authority should be proved. 
 
iToieV, §118.] 507 
 
 in the hands of German authorities ; or (5) the claim is 
 liquid and fully vouched. 
 
 In France, in addition to what is laid down in the text, 
 decisions have established that caution wiU be exacted from 
 a foreign pursuer, except in re mercatoria (G. d'Aix, Gauthier 
 V. Falkry Bey, 4th June, 1877, Criminal Cour de Cassation, 
 Srd February, 1874) ; but where a foreigner appeals, caution 
 not having been required from him in the first instance, it 
 cannot then be required (Bonaparte Wyse v. Carter, C. d'Aix, 9th 
 July, 1874), nor from a foreign defender who appeals against a 
 judgment of an inferior court (Levy v. Neu, C. de Nancy, 18 th 
 August, 1875). • When a foreigner comes into a French court 
 for an exequatur upon the judgment of a foreign court, he is 
 required to find caution, just as the, pursuer in an ordinary 
 action is (Dreisch, C. de Nancy, and Trib. Civ. de la Seine, 
 22nd January, 1876) ; but this is not so in cases where the 
 judgment is upon res Tnercatoria (Society Gen^rale d' Assur- 
 ances de Transport de Reims v. Society d' Assurances de I'Uni- 
 vers, Trib. Civ. de la Seine, 18th Nov. 1875).] 
 
 III. Jurisdiction — Competency of Coubts to deal with 
 
 THE PrOPEETT of FOREIGNERS RiGHT OF FOREIGNERS 
 
 TO APPEAR BEFORE THE COUET. 
 
 §118. 
 
 AU rules as to the business of the courts, questions as to 
 what suits — in an objective sense — can be submitted for judg- 
 ment, and the rights and duties of the court to parties, 
 belong truly to public law. It is, then, plain that we have 
 nothing to do here with applying any other law than the law 
 of the place where the court is situated ; and, for instance, 
 the foreigner who at home has certain privileges in particular 
 suits, or in all, cannot claim these on that account in a 
 foreign country.^ 
 
 1 Foelix, L § 126. Parties have no right to appeal to arbitration, unless 
 that be specially accorded them, although that may be the rule according to 
 the law to which the legal relation in question is subject (Fcelix, as cited, 
 Note 1). It cannot make any difference that a State, by a special commis- 
 sion, has invested some person temporarily with the position of a judge in 
 place of the officials who are permanently engaged in such work. If, then. 
 
o08 [§ 118. 
 
 The competency of the court to deal with any par- 
 ticular thing — in a subjective sense — is in the same way to 
 be determined by the law of the place where the court 
 lies. The rules that have to be considered here belong also 
 to pubUc law, and simply import an allocation of all the suits 
 that may occur in the country to particular courts, in which, 
 no doubt, the will of the parties may have a considerable 
 influence. But it is quite a different question whether the 
 statutory rules as to competency are to be applied indiscrim- 
 inately, whether the parties are natives or foreigners, the 
 things in dispute situated in this country or abroad, the con- 
 tracts in question concluded here or elsewhere, or to be ful- 
 filled here or in another country. In Germany, England,^ 
 and the United States, in so far as the common law of Eng- 
 land is there recognised, the question is in practice answered 
 in the affirmative. A court which is competent when both 
 parties are natives is just as competent when both are 
 foreigners, if that is consistent with the facts necessary to 
 give the courts jurisdiction f and the only exception recog- 
 nised is when jurisdiction is founded on some advantage con- 
 ceded to a native pursuer, as in the case of arrestments.* 
 
 a commercial association is formed under the provisions of the French Code 
 de Commerce, no member of that association can, by an appeal to the provi- 
 sions of the 51st article of the Code, demand a court of arbitration ia a 
 foreign country if the ordinary courts have jurisdiction in such matters. 
 Massd, No. 290, is of a different opinion. 
 
 2 See Fcelix, 1. p. 309 ; Wheaton, § 140, p. 189 ; Story, §§ 541-42. The same 
 has been held, according to Foelix, in Spain. There is no theory in Ger- 
 many, so far as I knovif, on this subject. See, however, the special regulations 
 in the ordinance as to procedure in Baden, 1832, § 45 (reported by Fcelix, i. 
 pp. 310-11). 
 
 2 It is not impossible even to reconcile the forum domicilii with the fact of 
 both parties being foreigners, if the competency of the court does not depend 
 upon the acquisition of a right of residence, but rather upon what may be the 
 customary place of residence of the defender. See Hannov. biirgerl. Process- 
 ordnung of 1850, § 5. 
 
 * See Peck, de jure sistendi, c. 1, 2 ; Bayer, Theorie der summarischen 
 Pocesse, § 24, note 7 ; Spangenberg, in Linde's Zeitschiift fiir Civilr. and 
 Process, iii. p. 431, note 2 ; Baumeister, Hamburg. Privatr. i. § 13, p. 87 ; 
 judgment of Supreme Court of Appeal at Jena, 12th November, 1835 
 (Seuffert, 5, p. 68) ; judgment of Supreme Court of Appeal atCassel, 26th Oct. 
 1842 (Heuser, Annalen, i. p. 888). It was also merely in favour of the 
 French creditor that the statute of 7th April, 1832, introduced provisional 
 
S 118.] 509 
 
 Modern French practice,^ on the other hand, proceeds upon 
 the principle advanced by the older French jurisprudence — 
 that disputes between foreigners did not in themselves belong- 
 to the competency of French courts, and must, therefore, be 
 rejected by the courts of their own accord, except in certain 
 special cases. 
 
 It has been urged against this theory, which is not founded 
 upon any special provision of the statute book,''- '' that since 
 the State allows foreigners to acquire and to exercise rights 
 in France, the necessary and immediate result is that there 
 must be some judicial protection for them ; and that the rule 
 adopted by French practice, which refuses foreigners such 
 judicial protection, is at variance with the principles of inter- 
 national law. 
 
 But although that practice cannot be defended upon the 
 theory that it is a special privilege of natives to enjoy the 
 right of appealing to the courts of their own country in suits 
 against foreigners,* — a theory which is at variance with the 
 principle of the legal equality of foreigners and natives in 
 matters of private law, and would, unless countless exceptions 
 were allowed, make any extended intercourse with foreign 
 countries almost impossible, — there seems to be a more reason- 
 able consideration on which it can be defended,' which takes 
 
 arrestment for foreigners. Gand, Nos. 609, VOl ; Mass^, No. 196. We may 
 lay it down that a French creditor, who is so merely cessionario nomine, 
 cannot use this privilege, but may if he has acquired right to the debt by 
 indorsation. Two judgments of the Supreme Court at Liibeck, on the other 
 hand, 14th Sept. 1850, and 13th Jan. 1857, give the assignee who is a native 
 this privilege. 
 
 ^ See Foelix, i. p. 314, especially the judgment of the Court of Cassation 
 at Paris, 22nd January, 1806, which has regulated subsequent practice. The 
 course of practice in Belgium is the same (Foelix, i. p. 317, note 1). 
 
 6 Foelix, i. § 150, p. 315. 
 
 7 Wheaton, § 141, p. 189 ; FoeUx, i. § 146 (p. 307) ; Mailher de Chassat, 
 No. 130. 
 
 * The argument which has been advanced, although it has littl'e foundation 
 in fact, that the courts of the country would be too heavily burdened with suits 
 between foreigners, and that the suits of their own subjects would suffer 
 (Grand, No. 187), is refuted by Demangeat, on Foelix, i. pp. 322-23. 
 
 8 Piitter, Fremdenr. p. 110, holds this rule to be an invention of advocates 
 devised in order to furnish means of defending their clients. 
 
510 [§ 118. 
 
 that ^hape only in consequence of a peculiarity in the modem 
 French law of procedure. 
 
 According to the law of procedure in France (adopted in 
 other modern systems), the incompetency of the court, if it 
 has jurisdiction in general over subjects of the same kind, 
 only gives rise to a plea in the mouth of the defender : the 
 court has no power, as in the common procedure in Germany, 
 of its own motion to throw out the action, if there be a want 
 of jurisdiction.^" This maxim creates no difficulty in suits 
 among natives ; the State can lay on its subjects the duty of 
 answering provisionally to a citation in an incompetent court. 
 Eut, on the other hand, it is not easy to see how the State can 
 so cite a foreigner who has no property in this country, and 
 does not reside here, or conclude contracts here : for the right 
 of jurisdiction really rests upon a subjection either of the 
 person or of a thing belonging to him to the sovereignty of 
 the State.^^ The object of the French practice is to restrain 
 this encroachment upon the sovereign rights of other States,^^ 
 
 ^'' Code de ProcM. art. 168. See, too, Hannov. biirg. Processordnung, § 19. 
 
 " Vattel, ii. chap. 8, § 103. Huber, de foro competente, § 28 : " Summa 
 regulafori est hcec, qvsd actor forum rei sequitur. . . . Gujus ratio non tarn est 
 quod reus aetore favorabilior. . . sed quod necessitas vocandi et cogendi aUv/m 
 ad jus mquum nonnisi a superiore proficisci queat, superior autem cuju^que 
 non est alienus, sedproprius rector." Story, § 539, ad fin., remaxka : "No 
 sovereignty can extend its process beyond its own territorial limits, to subject 
 either persons or property to its judicial decisions. Every exertion of 
 authority of this sort beyond this limit is a mere nullity, and incapable of 
 binding such persons or property in any other tribunals." 
 
 12 The 14th article of the Code Civil — viz., L'Mranger mime nonrisidant en 
 France, pourra etre citi devant les tribunauao frangais pour Vixectdion des 
 obligations par lui contracths en Prance avec un Frangais ; il pourra Ure 
 traduit devant les tribunaux de France pour les obligations par lui contracties 
 en pays Stranger envers des Frangais," contains, as even French jurists admit 
 (Foelix, i. p. 324), an invasion of the principles of international law, and rests 
 upon an inadmissible analogy, which seems to be drawn from a practice that 
 can quite easily be defended on principles of international law — viz., arrest- 
 ment against foreigners (see infra, No. 8, § 119), and from the natural desire 
 to protect the interests of its own subjects, which is here carried too far. The 
 absolute application of the rules of French procedure to determine the com- 
 petency of suits which two foreigners proposed to conduct against one another 
 could never be so justified. The last provision of this article is repealed in 
 Baden, Hesse, and Ehenish Prussia, and only the right of reconvention 
 retained. It still remains in the rules of process of the Netherlands. (Cf. 
 Fcolix, i. pp. 385-87, 380.) 
 
§ 118.] 511 
 
 and especially to obviate the abuses whicli might take place 
 in suits between foreigners under the foregoing provision of 
 the French Code of Procedure. ^^ This was only possible, how- 
 ever, even under the terms of that provision, if it was held to 
 be the exclusive right of French subjects to piirsue actions 
 against foreigners in the courts of France. The French 
 courts are allowed to use their discretion in admitting or dis- 
 missing an action by one foreigner against another according 
 to the circumstances of the case, and — apart from the case of 
 an actidn to establish a real right in heritable property 
 situated in France, where the principle of territorial 
 sovereignty will give both a right and a duty to exercise 
 jurisdiction, although the issue may be between foreigners,^* 
 — according to well established rules of practice, one foreigner 
 can be sued by another, if payment of the obligation is to be 
 made in France,^* if the suit refers to commercial matters,^* 
 and if at the same time the conditions required by the 420th 
 article of the Code de ProcMure are present,^'' if the question 
 is one as to the regulation of interim rights or of diligence,^* 
 in questions of succession,^® in so far as the succession has 
 opened in France or refers to real estate there situated, in 
 actions of damages arising from delicts committed in France,^" 
 in cases where the defender has chosen a domicile in France 
 for the property which is in question, or has really acquired 
 
 1^ It should be remembered, for instance, that if the defender has no known 
 domicile in France, by the 69th article of the Code of Procedure it is 
 sufficient for the purpose of citation to post the document of citation on the 
 walls of the court, and to deliver another copy to the Procureur Imperial. 
 
 " Gand; No. 201 ; Foelix, i. § 160, p. 334. 
 
 15 Foelix, i. pp. 325-26. 
 
 ^* Foelix, i. pp. 327-28. The reason assigned is undoubtedly wrong. Com- 
 mercial matters, since we have no jus geniivm, in the sense of the Bonjan law 
 (see supra, § 2, note 2), belong to the jus gentium just as much and no more 
 than other assets of private property affected by a suit. 
 
 1^ "Le demandeurpourra assigner a son choix, devant le tribunal du domicile 
 du defendeur, devant cdui da/ns I'arrondissement du quel la promesse a dte 
 faite et la marchandise Uvriej devant celui dans I'arrondissement du quel le 
 paiement devait itre effectud." 
 
 18 Foelix, i. pp. 313-16. 
 
 19 Mass6, No. 177 ; Foelix, i. p. 344. 
 ,20 Foelix, i. p. 334, note a, and p. 335. 
 
512 [§118, .Vote W. 
 
 an actual domicile there,^^ or, lastly, is resident in France 
 without being able to show a real domicile in any other coun- 
 try .^^ (On the other hand, French courts wiU never adjudi- 
 cate in cases where the civil status of foreigners is concerned. ^^) 
 It is plain that in reality the requirements of commerce are 
 completely satisfied, and what looks like an infringement of 
 the legal equality of foreigners and natives is in truth only a 
 protection against fraud, although it may lead to serious con- 
 sequences if it is defended on wrong grounds. 
 
 NoteW, OTO § 118. 
 
 [The courts of England, Scotland, and Germany recognise 
 no peculiar right in their own subjects to sue before them to 
 the exclusion of suits between foreigners, provided that there 
 is present some ground of jurisdiction upon which they can 
 proceed — e.g., in England personal service upon the defender, 
 in Scotland arrestment of his goods jurisdictionis fundandce 
 causa, in Germany residence coupled with personal citation. 
 We shall discuss more closely, infra, what are the grounds 
 on which jurisdiction may be founded ; at present we need 
 only note that if these conditions are satisfied, the defender 
 is not entitled to plead that both he and the pursuer are of 
 foreign nationality or domicile, nor will the courts of the 
 countries named take propria motu any such objection ; in 
 Scotland, however, the plea of forum non conveniens may be 
 advanced in such cases, and will be sustained if the court is 
 satisfied that the case will be more conveniently disposed of 
 elsewhere. But that convenience must be distinct and pre- 
 ponderating, otherwise the court will proceed to adjudicate 
 on the question, in conformity with the doctrine laid down 
 by Inghs (L. J. C.) in Clements v. Macaulay, 1 6th March, 1866, 
 4 M'P. 593 : " It must never be forgotten, that in cases where 
 jurisdiction is competently founded, a court has no discretion 
 whether it shall exercise its jurisdiction or not, but is bound 
 
 21 Foelix, i. pp. 325, 317. Cf. Code CIyU, art. 111. 
 M Foelix, i. pp. 321, 332, note a. 
 
 ^ Foelix, i. 329-32. The matter is different if these questions of status are 
 merely an incidental point. Fcelix, i. p. 338 ; Masse, No. 174. 
 
JfoteW.] 513 
 
 to award the justice whicli the suitor comes to ask. Judex 
 tenetur impertiri judicium suum." This maxim is at the 
 bottom of the doctrine advocated in the text. 
 
 We may illustrate further the exceptions which French prac- 
 tice has lately been driven to recognise to the rule that French 
 courts shall not entertain suits between foreigners. A writer 
 in the Revue du Droit International ranges the exceptions 
 under the following categories ; such suits are allowed to 
 proceed, — (1) When either party is naturalised ; (2) When 
 an international treaty has sanctioned the practice ; (3) In 
 civil suits founded on dehcts or quasi-dehcts ; (4) In suits in 
 re mercatoria ; (5) In suits where the judgment is to be 
 merely provisional, or to maintain a status quo pending a suit 
 abroad ; (6) Where the status of foreigners is fraudulently 
 acquired by either party ; (7) Where there is a plurality of 
 parties, one of them being French ; (8) Where the suit origin- 
 ally depended with a French subject as pursuer or defender, 
 and a foreigner has been sisted in his room pendente processu. 
 It may be noted here, although the remark is more germane 
 to the subject of jurisdiction, that the French Code authorises 
 French subjects, to sue foreigners in France, to demand 
 justice from their own courts as it is phrased, even although 
 these foreigners do not reside there, and although the obliga- 
 tion sued on was contracted abroad, and is to be satisfied 
 abroad. 
 
 The following decisions wiU show what is the kind of cases 
 in which French courts have entertained suits between 
 foreigners ; we have already seen (supra, note M, p. 385) that 
 courts which decline to exercise their jurisdiction so as to 
 affect permanently the conjugal relations of spouses, will 
 award aliment and the custody of children, and we shall see (pp. 
 536-37) that they will sustain arrestments used by foreigners 
 against foreigners, although the question for the decision of 
 which, and for consequent execution these arrestments have 
 been used, is beyond their jurisdiction. The pressing nature 
 of the appeal to their protection justifies this course, and on 
 similar grounds an English servant has been allowed to sue 
 her employers — foreigners resident in Parish — for wages due 
 to her (Morris v. Eizardi, Trib. Civ. de la Seine, 31st May, 
 1878) ; so, too, an Italian sailor, who had been engaged at 
 
 2L 
 
514 [i\^ofcW. 
 
 Marseilles, before the English Consul, by an English Shipping 
 Company, may sue his employers for damages for personal 
 injuries in Marseilles, that port being the place where his 
 wages were to be paid to him (Becchr^ v. St. Andrews Com- 
 pany, Trib. Comm. de Marseilles, 1 6th May, 1 878). Generally, 
 in commercial questions arising in France, French courts 
 have jurisdiction (C. de Lyon, Herard v. Adhemar, 19th May, 
 1876) : actions will lie if the place of payment or performance 
 is in France, or if the cause of action has originated there — 
 €.gf., if the goods for the price of which action is brought 
 were supplied there. This was held in the case of an action 
 for furnishings supplied by an English house to an English 
 ship driven into a French port by fire (Neilson v. Longley, 
 16th November, 1874, C. d'Appel d' Alger). The principle 
 is thus stated in a judgment of the Trib. Civ. de la Seine 
 (Fuentes v. Peiger, 18th July, 1877): "French law, per- 
 mitting, as it does, foreigners to enter into all contracts 
 juris gentiwm with Frenchmen or foreigners in France, 
 tacitly promises them the means of compelling execution of 
 these upon the stipulated conditions ; the necessity of main- 
 taining order, and supporting the good faith due to contracts, 
 ought to give jurisdiction in suits between foreigners upon 
 contracts made in France, and intended to be enforced there." 
 The same principle had been applied in the cases of Pritz v. 
 -Schenking, 30th November, 1875, by the Civil Tribunal of 
 Nice, and by the Court of Cassation at Paris, on 22 nd Novem- 
 ber, 1875, in the case of Mohr v. Quien-Haldy. In a patent 
 case, too, the patent being French, the courts of France wiU 
 adjudicate between foreigners on the ground that the regula- 
 tion of such a matter belongs to the maintenance of public 
 order, and cannot be committed to a foreign court (Paris 
 Skating Rink Company v. Spiller, 26th June, 1879, Trib. Civ. 
 de la Seine). 
 
 It has been held, upon the other hand, that the incompetency 
 of French courts is not absolute, and that parties acquiesoingi 
 the court may, if it thinks fit, exercise jurisdiction between 
 foreigners (Mazy v. Mazy, C. de Cassation, 5th March, 1879), 
 and that a foreigner long established in France, but not of 
 French nationaUty or domicile, may sue another foreigner in 
 the French courts (Monte Naro v. Comp. Italo Platense, Trib. 
 
i\7'o«eW,§119.] 515 
 
 Comm. de Marseilles, I7tli March, 1875), and tlie same has 
 been held where a foreign company long established in France 
 was pursuer (Cie Segovia Ceradra, Trib. Oiv. de Marseilles, 16 th 
 March, 1875). These cases may, however, have fallen under 
 some of the numerous exceptions to the general rule already 
 stated. 
 
 On the other hand, French courts have refused, even when 
 parties prorogated their jurisdiction, to exercise it for the 
 decision of questions of persopal status between foreigners, — 
 i.e., any but naturalised French subjects, — on the ground that 
 their remedies exist only for their own subjects. They have 
 thus refused to determine a suit between Zanchoni, tutor to 
 the minor children of the Prince of Lusignan, and other 
 foreigners, relative to the right of the children to bear the 
 title (Trib. Civ. de la Seine, 5th May, 1880), or a declarator 
 of right to bear a certain name and title raised by a Hano- 
 verian against a Russian (Catana v. Potecki, 7th May, 1875, 
 C. de Paris). This absolute rule may, however, be overcome 
 by special circumstances of convenience (De Patton v. 
 Bikowski, Cour d'Aix, 25th January, 1876). 
 
 The Belgian courts will sustain their jurisdiction when the 
 subject matter springs from a contract that should be exe- 
 cuted in Belgium, or when the action is subsidiary to one 
 already depending in the Belgian courts. This jurisdiction 
 is created by a statute of 25th March, 1876, and is fortified 
 by decision (Preve v. Van de Taelen, 30th May, 1877, Trib. 
 Comm. d'Anvers).] 
 
 Mutual Becognition of Jurisdiction in International 
 Intercourse. 
 
 §119. 
 
 Let us now inquire what kind of jurisdictions must be 
 mutually recognised by different States, apart from positive 
 enactments. The end and object of the judge's work is a 
 final judgment, and accordingly the character of this judg- 
 ment will determine the sphere of his work, and wUl serve as 
 a test of competency. 
 
 The sentence of a judge, however, although in strict logic 
 and in accordance with principles of law and with facts it does 
 
516 [§ 119. 
 
 not create or destroy legal rights, has nevertheless practically 
 that effect on account of the possibility of error : its effect 
 comes to be that of a lex specialist upon the case which it 
 determines, although that is not its object. Whether the 
 lex specialis of this or. of that State is applicable to the 
 particular ease, must depend upon what lex generalis, that 
 is, what local law, is generally regulative of the legal 
 relation in dispute. The courts of the country to whose 
 law the legal relation in question is subject must there- 
 fore rule.^ 
 
 In questions, therefore, of status and family law, the judex 
 domicilii will decide ; in questions as to things, the judex 
 rei sitae? Suits as to succession will fall partly to the one 
 and partly to the other ; questions as to obligatory contracts 
 wUl belong partly to the judex domicilii, partly to the court 
 of the place of the contract or delict. 
 
 This principle, however, undergoes two modifications — an 
 extension in so far as the defender may consent to subject 
 himself to the jurisdiction of another court, and a limitation 
 in so far as the pursuer may renounce some particular juris- 
 diction ; but from this option there are of course excluded all 
 
 ' The character of a suit as a contract, which is so often advanced, does not 
 in my opinion fully exhaust the matter, since every process rests, directly or 
 indirectly, upon compulsion. 
 
 ^ As we have seen {swpra, § 24), many maintain that the converse is the true 
 principle, and that the jurisdiction in any particular case will determine what 
 law is to be applied. No doubt the judge must follow the statutes of his own 
 country. The question is, however, whether, if the subject or the object of the 
 judicial sentence is in another country, the legal position is affected by that 
 sentence, and whether there is not involved in the instructions given to the 
 judge by the statute an encroachment upon the sovereign rights of other 
 States. 
 
 ' The cuitiones in rem seriptcB, in so far as they are directed to the delivery 
 of particular articles, give the pursuer a real right, since the true test of a real 
 right is its operation against third parties. These actions are set on the same 
 footing as the actiones in rem, under the restriction already mentioned, in so 
 far as the competency of the court is concerned, in the treaties attested by 
 Krug (pp. 40-41), and in the draft of a General Code of Jurisdiction in the 
 States of the German Bund. The same rules will apply to actions for divi- 
 sion and possession in so far as these apply to particular articles. (Of. § 15 
 of the Draft Code, and Krug, as cited.) 
 
§ 119.] 517 
 
 legal relations over wliicli the parties liave not a full power 
 of disposal.* 
 
 The acquisition of an actual domicile must count as a 
 voluntary submission of all legal relations that are subject to 
 a free power of disposal to the courts of that country, ex- 
 cepting only real rights in heritage, and such moveables as 
 are permanently attached to any particular place.* The 
 foreigner who sets the centre of his affairs and of his life as 
 a citizen in another place, thereby recognises the protection 
 which is afforded to him by the law of that place, and the 
 courts that are established there. If he should require the 
 pursuer to follow him to the forum of his previous domicUe 
 in any action dealing with things that are at the free disposal 
 of the parties, because the case has somehow had its origin 
 there, such a demand, giving no advantage to the defender, 
 but likely in most cases to be troublesome to him, would be 
 declared to be ex dolo, and therefore would be refused.* 
 
 Conversely, however, if the defender has left his former 
 domicile, or the place in which he came under the obligation 
 in question, or acquired the property which is claimed, and 
 has no more belongings there, the pursuer has no right to 
 appeal to the jurisdiction of that place. He could have 
 enforced his rights sooner, at a time when the defender could 
 
 * In questions, therefore, as to the validity of a marriage, or its dissolution, 
 that court only is competent in whose territory parties have their legal domi- 
 cile (see supra, § 92). Section 34 of the second Draft for the States of the 
 Bund provides : — " The present statute is only applicable to actions that have 
 to do -with personal status — the constitution, existence, or dissolution of mar- 
 riage — if the person concerned belongs exclusively as a subject to the State 
 where the process is proposed to be brought ; and that whether the action 
 deals with one of these legal relations itself, or merely with legal rights or 
 obligations that flow directly from some judgment of the court adjudicating 
 upon one of them. 
 
 6 See supra, pp. 230, 235, 246. 
 
 * The foreigner as a rule does not possess any property at his old domi- 
 cile. If the pursuer had to betake himself to the court of that old 
 domicile, the debtor would remain untouched in his new domicile if the 
 sentence of the court of one country could not be carried out in the other, 
 — would, as a judgment of the Parliament of Paris expresses it, enjoy the 
 property acquired at the expense of his fellow-citizens (Foelix, i. p. 321), 
 See, too, the preceding paragraph, note 22. 
 
518 [§119. 
 
 have met him there without any inconvenience, and if his 
 right to that jurisdiction was in any peril, he was bound to 
 use arrestments against the debtor or his property : vigilantihus 
 jura sunt scripta. But an exception must be admitted- in 
 the case of obligations ex delicto; the person who has re- 
 ceived damage must be allowed some more efficient protection 
 than the creditor enjoys in other obligations which rest upon 
 free will, and is all the more entitled to adhere to that juris- 
 diction which has once been established, irrespective of whether 
 the person who has committed the delict lives at the place 
 where it was committed, or has property there, as in many 
 cases it is not known till afterwards who it was who did com- 
 mit the delict. In this case the creditor is absolutely en- 
 titled to choose between the foru/m delicti commissi and the 
 forum, domicilii. The exclusion of the forum domicilii in 
 real actions which deal with heritage is defended upon the 
 ground that to assume any voluntary submission here is to 
 contradict the modern theory of law, which distinguishes in 
 many important aspects between moveables and immoveables,' 
 and to go against the great and specially important distinc- 
 tions between the various territorial laws on the subject; 
 while the arguments adduced to support the voluntary sub- 
 jection to the courts of the domicile in personal actions and 
 real actions directed against moveables, do not correspond 
 with the nature of the materia subjecta in the present case. 
 By aid of this last consideration, and because the owner has 
 divided these things from the rest of his property, we find 
 that real actions, too, concerned with moveables which are per- 
 manently attached to some particular place, are only com- 
 petent in the courts of that place. That this is so with real 
 
 ' According to Germanic legal theories, a man may unite several distinct 
 personalities in himself by the possession of distinct estates (e.g., by feudal 
 and allodial holdings). The so-called landsassiatus plenus, which is recog- 
 nised in some countries, but now is gradually disappearing (see Beseler, i. § 
 65, note 4), is explained to be a legal theory which holds the whole moveable 
 estate to be a pertinent of the land. In older German law the forum m 
 sitm is exclusive (see Land Law of Saxony, iii. 33, § 4 ; cf. Suabia, c. 75, § 
 1, c. 245, § 1, ed. Gengler ; and the citations in Wetzell, Civil Process, § 41, 
 note 47), and the Courts of Common Law in England and America still de- 
 clare themselves of their own accord incompetent if the real estate is not 
 within their jurisdiction. Burge, iii. p. 397. - i 
 
§119.] 519 
 
 actions that concern immoveables has been recognised by- 
 most authors and in most treaties.* 
 
 The nature of other moveable things, on the other hand, is 
 such that their owner can, as a rule, settle their situation. 
 As, then, upon the one hand, to require a pursuer, who 
 demanded dehvery of moveable property by means of a real 
 action, to raise his action at the place where the thing is 
 situated, would imply the greatest injustice, and would in 
 many cases be nothing but robbery of a good right, since the 
 pursuer could not know where the thing in question was ; on 
 the other hand, if the defender might be sued in any place 
 where the thing happened to be for ever so short a time, his 
 defence would be greatly embarrassed, and the security of 
 commerce in moveables would be thereby exposed to the 
 greatest risks. Nothing, therefore, is more natural than that 
 real actions for delivery of moveables should be brought at 
 the actual domicile of the defender, and an exception is 
 admitted only if the thing is permanently attached to a 
 particular place by the dedication of its owner, or if the 
 pursuer under special conditions — as in the case of 
 arrestments — is entitled to detain them at some particular 
 place. 
 
 Every one, then, so long as he is personally present in any 
 State, is subject to the sovereignty of that State in so far as 
 relates to his person, and so long as he possesses property or 
 makes claim to property there, in so far as concerns that 
 property and these claims. It is, then, not repugnant to 
 principles of international law, that the debtor himself, if he 
 happens to be in the country, should be seized, or his 
 property arrested ; and in consequence a judgment can be 
 pronounced without the necessity of estabhshing any other 
 right of jurisdiction, giving decree — in the former case to 
 the amount of caution required for liberation, in the latter to 
 the amount of the value of the goods arrested. But in 
 modern times this strict law of arrestment against foreigners 
 
 8 Burge, iii. p. 125 ; Vattel, ii. § 103 ; Wheaton, § 86, p. 118 ; Story, § 543. 
 See, too, J. Voet, in Dig. 5, 1, n. 77 ; Meyius, in Jus. Lub. v. 2, note 5, §§ 3 
 etseq. ; the treaties cited by Krug (pp. 40-1) ; and the sketch of the laws of 
 the States of the German Bund, § 15. 
 
520 [§§ 119, 120. 
 
 is less necessary, and has been limited in many countries as 
 prejudicial, to trade.® 
 
 Lastly, however, a defender who has no domicUe at all 
 must be content to answer in personal actions, and actions 
 for the delivery of moveables (under the exceptions already 
 considered), in the courts of the place where he may happen 
 to reside. If he should appeal to the exclusive jurisdiction 
 of another court, that can only be suggested by dolus, since 
 he has no property within its jurisdiction, and it is more 
 convenient for him that the action should proceed in the 
 place where he lives. 
 
 These Principles compaeed with those adopted by 
 Modern German Law. 
 
 § 120. 
 
 We shall now attempt to show that jurisdiction established 
 on these principles is in accord, with but sHght deviations, 
 with the principles of Koman law, and also with these 
 principles as developed in Germany, having regard always to 
 the fact that now-a-days, where the question concerns the 
 competency of the courts of different countries with systems 
 of law which may differ very widely, many things are of 
 importance which were allowed to remain unnoticed under a 
 system like that of Eome, in which the questions of competency 
 arose between the different courts of the same State subject 
 to one and the same law. 
 
 We need only advert in this matter to the fonmi domicilii,^ 
 
 ' The Draft Code for the Bund provides in ai;tiole 10 : " If arrestments 
 have been used in any German State, the competency of the jurisdiction given 
 by the law in respect thereof only justifies the principal action in so far as 
 that process will be able to affect the subject arrested and any property of 
 the arrestee that may be found in that country, and will only be admitted on 
 condition that, if the arrestee when the arrestments were laid on was the 
 subject of another German State, his character as a foreigner did not deter- 
 mine their use." 
 
 1 By the common law, where parties have no actual domicile in the Eoman 
 sense, the place of residence was taken instead. See Wetzell, § 40, note 58. 
 It does not seem imperative that this jurisdiction should in every case be 
 
§ 120.] 521 
 
 because by common law it was competent to bring real 
 actions as to heritage in that court. This is to be explained, 
 in this way, that in old days there existed but one forum for 
 all suits in which Roman' citizens were defenders, and that 
 was Rome itself. And in later times, when Roman citizens first 
 came to be required to answer to actions in the provinces,- 
 they could not acquire any property in landed estate there ; 
 when, however, they did possess this right, and the forum 
 rei sitcB came to be introduced, it did not seem to be of any 
 moment, looking to the unity of the whole Empire, that the 
 foruTn domicilii should also be retained for real actions as to 
 landed property. 
 
 As regards the forum rei sites, we need only recall the fact 
 that, according to the plain sense of the words of L. 3 (ubi 
 in rem actio, 3, 19), this jurisdiction is only found where the 
 property has a permanent resting-place, a doctrine in full 
 harmony with the principles above deduced.^ 
 
 In the same way, the forum delicti commissi accords with 
 these principles.^ 
 
 On the other hand, the forum contractus seems to embrace 
 a far wider sphere in the common law than that which our 
 reasoning would assign to it. According to the older view, 
 this jurisdiction is established at the place where the contract 
 was concluded, provided that the debtor is personally present 
 there or possesses property there ; but by a more modern 
 view it exists in the place where the obligation is, either by 
 implication or by express agreement of parties, to be per- 
 formed,* and it does so, as many authorities think, even 
 without requiring the personal presence of the debtor there, 
 or the possession of any property by him.^ 
 
 described as the forum arresti, although in such cases there will often be 
 arrestments. Of., too, the Draft Code as cited, i. § 9, with the ideas on which 
 it proceeds. 
 
 2 As to the cusHones in rem seriptce, see Wetzell, § 41, note 45. 
 
 3 See Wetzell, as cited, note 31. 
 
 * According to a theory which may now, however, be held to have been 
 refuted by Savigny (§ 370 ; Guthrie, p. 200), the positive law would assign 
 every obligation a place of performance. 
 
 ' Of. Bayer, Civil Process, pp. 200-01, and authorities cited there ; and 
 again, Savigny, § 371 ; Guthrie, p. 220 ; and the judgments of the Supreme 
 
522 [§ 120. 
 
 The first view, which would give jurisdiction to the law of • 
 the place where the obligation took its rise, has been completely 
 refuted in modern times, and may now, in theory at least, be 
 held to be abandoned.® There will be all the less necessity for 
 reviewing the reasons by which it is supported, since all that 
 I propose to say against the second view may serve at the 
 same time as a refutation of the first. 
 
 The second view is supported by most writers on the 
 ground that when a person undertakes to perform an obliga- 
 tion at any particular place, he thereby subjects himself to 
 the courts of that place ; and in the absence of any express 
 stipulation or other agreement as to the place that can be 
 inferred from circumstances, that is held to be the domicile 
 of the debtor in the obligation. 
 
 Let us, in the first place, put aside the provisions of 
 the Koman law, and test on general logical principles the 
 question, whether by consenting to a particular place of per- 
 formance, or even expressly providing one, there is always to 
 be held to be a submission to the courts of that place ; we 
 can without difficulty figure cases in which this assumption will 
 flatly contradict the intention of the parties. For instance, 
 a person is engaged to accompany another on a journey from 
 Berlin to Paris and Madrid ; in determining the days on 
 which they are to arrive at Brunswick, Hanover, Coin, Paris, 
 and so on, it is settled that he is to receive a stipulated sum 
 at each of these places. Can we say in such a case that the 
 debtor may be sued at any one of these places 1 And yet 
 that would be the result of the view that is adopted, even 
 although the whole journey should be left unfinished. But 
 it is impossible without force to read into an agreement as 
 to the place of performance a tacit prorogation of jurisdic- 
 tion even in ordinary cases. For instance, a merchant 
 in Hamburg, who undertakes to make a payment in 
 Singapore through a correspondent there, can surely 
 not be said thereby to indicate an intention to subject 
 himself to the courts of that country, although it may 
 
 Courts of Appeal at Liibeok, 20th June, 1839, and at Stuttgart, 5th Septem- 
 ber, 1854, which adhere to the condition required (Of. Seuffert, 8, p. 121). 
 « Of. Bayer, pp. 197-98 ; Savigny, § 370 ; Guthrie, p. 198 ; Wetzel), § 41. 
 
§ 120.] 523 
 
 be quite uncertain whether the court there will entertain 
 an action. 
 
 Wetzell ^ remarks that the will of the parties cannot 
 account for jurisdiction being given to the place of perfor- 
 mance. Any one who was bound by a negotium stricfi juris — 
 e.g., by a stipulation, a loan, or a legacy (legatum per 
 damnationem or sinendi modo) — says Wetzell, could originally 
 only be sued for payment at the place of performance. For 
 the strict form of the action did not permit any regard to be 
 taken, or any pre-estimate to be made of the local interest, 
 and in any other court the creditor might have demanded 
 more than the debtor was bound to pay to him. It was no 
 voluntary submission, but the strict local reading of the 
 obligation that showed the forum solutionis to be the 
 necessary forum. 
 
 This would explain the origin of the forwm contractus as 
 appUcable to the stricti juris obligationis, but would not 
 account for its application to all contract obligations. 
 
 According to what I hold to be the only true view, the 
 matter stands thus : The Roman citizen in old times could 
 only be sued in Rome ia the court of the praetor ; in those 
 days there was but one jurisdiction for all Roman citizens, 
 and on that account a pluris petitio loco could never arise. 
 In later times, as the citizens of Rome spread more and more 
 over the provinces, and took up trades there, they were 
 obliged to answer in the courts of the magistrates of the 
 proviuces. The only persons, however, whom a magistrate 
 could compel to answer iu a suit by requiring caution, were 
 persons who either were themselves actually present in his 
 jurisdiction or possessed property there, by means of which 
 a missio i/n possessionem of the creditor could be carried 
 out. 
 
 The principle, that every one who was himself found in 
 the province, or had estate there, could be sued in its courts 
 by his creditors, was first reached in actiones stricti juris 
 with a definite place of performance by this means, — viz., 
 that an action instituted in any other place than the appointed 
 place of performance was treated as a pluris petitio, the 
 
 ' § 41, p. 349. 
 
524 [§ 120. 
 
 result of whicli was dismissal of the action and loss of the 
 right to recover. How was it, however, with other obligations, 
 where a less strict reading of their terms did not impose such 
 a penalty upon the pursuer ? The defender was in this case 
 also formally subject to the official authority of the magistrate, 
 and the same was the case even as regarded obligationes 
 stricti juris after the introduction of the actio de eo quod 
 certo loco. In my opinion the limit lay in this, that the 
 magistrate did not exercise his power of permitting action or 
 compelling the debtor to answer unless bona fides reqtdred it. 
 It is an important circumstance, no doubt, for determining 
 whether in the particular case bona fides requires the debtor 
 to answer to the jurisdiction, that payment is to be made 
 at that place ; but that does not in itself determine the 
 question, since for instance the forum domicilii also affects 
 all contract obligations, although payment may have to be 
 made at some other place than the domicile of the debtor. 
 But the principal consideration is whether the debtor was 
 resident for some time in the locality where it is proposed 
 that the jurisdiction over the contract should lie, so that 
 both parties must have held that the beginning and the 
 whole development of their transaction was to take place 
 there. This result is confirmed by the direct authority of 
 the sources of law. 
 
 The most detailed passage as to the forum contractus is 
 L. 19, D. 5, 1 : " Heres absens ibi defendendus est, ubi 
 defunctus debuit, et conveniendus, si ibi inveniatur nulloque 
 suo proprio privilegio excusatur. § 1. /Si quis tutelam, vel 
 curam, vel negotia, vel argentariam, vel quid aliud unde 
 obligatio oritur certo loco admAnistravit, et si ibi domiciliwm 
 non habuit, ibi se debebit defendere, et si non defendat neque 
 ibi domicilium habeat, bona possideri patietur. S 2. 
 Proinde et si merces vendidit certe loco, vel disposuit, vel 
 comparavit, videtur, nisi alio loci ut defenderet, convenerit, 
 ibidem se defendere. Numquid dicimus eum,, qui a mercatore 
 quid comparavit, advena, vel ei vendidit, quem scit inde 
 confestim profecturum, non oportet ibi bona possidere, sed 
 dom,icilium sequi ejus ? At si quis ab eo, qui tabernam vel 
 offi-cimam certo loci conductam, habuit, in ea causa est, ut 
 illic conveniatur ? quod magis habet rationem. If am ubi 
 
§ 120.] 525 
 
 sic venit ut confestim discedat, quasi a viatore emtis, vel eo 
 qui transvehebatur, vel eo qui TrapairXei (prceternavigat), emit 
 durissiinum est, quotquot locis quis navigans vel iter 
 faciens delatus est, tot locis se defendi. At si quo constitit 
 nan dico jure domicilii, sed tahernam, pergulam, horreum, 
 ar7nariv/m, officinam conduxit, ibique distraxit, egit, defendere 
 se eo loci debebit. § 3. Apud Labeonem quoeritur si homo 
 provincialis servwm institorem vendendarum merciwn 
 gratia Rom^ habeat, quod cwm eo servo contractv/m est, ita 
 habendum, atque si cu/m, domino contractwm sit: quare ibi se 
 debebit defendere. § 4. Illud sciendum, est, eum qui ita, fuit 
 obligatus, ut in Italia solveret, si in provincia habuit 
 domiciliv/m, utrubique posse conveniri, et hie, et ibi ; et ita et 
 Juliano, et multis aliis videtur." 
 
 The beginning of this passage provides that the heir must 
 answer in judgment in the court where his ancestor could 
 have been required to plead. This is a consequence of the 
 representation of the ancestor by the heir in questions of 
 property. Then it is noted in the first paragraph, that any 
 person may be sued in that place where he has permanently^ 
 carried on business, upon all obhgations arising in that 
 business. The second paragraph lays stress upon the fact 
 that the debtor has been in a particular place for no mere 
 temporary purpose, although it is not necessary that he 
 should be actually domiciled there. One who is on his 
 travels cannot as a rule be sued in the different places in 
 which he may make contracts upon his journey. The third 
 paragraph lays down that one who has had a trading 
 establishment in Eome, under the management of a slave, 
 may be sued in Kome ; and the last paragraph reminds us 
 that the forum, domicilii is always concurrent with the 
 forum contractus. I will not dispute that as a rule an 
 obligation must be performed where the forum contractus is, 
 in conformity with this passage, settled to be. But it is 
 quite conceivable that a traveller, for instance, may desire to 
 repay a loan at the place where he has received it, or that a 
 slave who contracts in Italy may stipulate that his master 
 
 ' Cf. too, the words, at si quo constitit, lower down in the paragraph, upon 
 which plainly the decision turns. 
 
526 [§ 120. 
 
 should give delivery of the goods in the provinces. In my 
 opinion, if it were assumed in the former case or disputed in 
 the latter, that the forwrn contractus was the proper forum, 
 the provisions of this passage, which say not a word, save in 
 the last paragraph, as to the place of performance, would be 
 plaiuly contradicted. We can explain the mention of the 
 place of performance here in this way, that it is specially 
 desired to give still more prominence to the concurrence of 
 the forum domicilii, and therefore the words " ut in Italia 
 solveret " must be construed as meaning, " assuming also that 
 he is bound to pay in Italy," and the " ita " is to be carried 
 back to the preceding paragraph. It is intimated that if a 
 person has come under such obligations, as in the case just 
 cited the slave has, and if we assume also that he is bound 
 to pay in Italj', yet if he has his domicile in the provinces he 
 may be sued in either place. According to the prevailing 
 view, the words " ita fait ohligatus, ut in Italia solveret " are 
 interpreted to mean that the agreement to pay in Italy is 
 the condition of jurisdiction there. But plainly the fourth 
 paragraph is in contrast with the preceding paragraphs, in 
 which it has been already shown what considerations should 
 serve to make us remember that the forum, contractus is not 
 exclusive, but is always concurrent with the forvmi domicilii; 
 it would be quite inconsistent with this, if, after there had 
 been no mention at all of the place of performance in the 
 former paragraphs, this should now be taken as the true 
 foundation of the forwni contractus. 
 
 But if the word " ut" should not be taken in the sense we 
 propose, it does not follow by any means as a necessary con- 
 sequence from this passage, that in every case where payment 
 or performance is to be made in Italy there should thereby 
 be a forum, contractus estabUshed there ; for the word 
 " posse " very fairly admits of the translation, that it may be 
 the case that a person is bound to answer in two places : it 
 may then be laid down, and that is no contradiction of my 
 view, that as a rule the place of payment is identical with 
 that in which the forwm contractus is established. Then L. 3, 
 D. 42, 5: — " Contractum autem non utique in eo loco 
 intelligitur, quo negotium gestwm est, sed quo solvenda est 
 pecunia." Here, then, it is said the forwm contractus is 
 
§ 120.J 527 
 
 determined simply by the place of performance. But in my 
 view this passage would, without being forced, admit of this 
 translation : — " That place in which the contract is concluded 
 is not always to be considered the place of the contract, but 
 that is only as a rule the case if the money falls to be paid 
 there also." This is in full accord with the view I have 
 adopted ; for if the whole transaction, from first to last, is 
 intended by the parties to be in connection with one and the 
 same place, it would generally offend against bona fides to 
 propose to transfer part of the obligation to another place by 
 appealing to a different forwm. By the ordinary rendering 
 the jurist is made to say that the forum is certainly not 
 estabhshed where the transaction is concluded ; but this 
 reading does not correspond with the outset of the passage. 
 In Latin contrahere is the exact opposite of solvere; the 
 former indicates plainly the beginning, the latter the end of 
 the transaction. If the place of payment were all that fell 
 to be considered, it would certainly have been more natural 
 to speak aU along of the forum solutionis and to leave out 
 the contrahere altogether. 
 
 In the same way I render the passage L. 21, D. de oblig. 
 et art. 44, 7 : " Gontraxisse unusqwlsque in eo loco intelligi- 
 tur, in quo ut solveret, se obligavit ;" thus : " It may be laid 
 down that every person has contracted in that place in which 
 he undertook the obligation and proposes to make payment " 
 (in quo se obligavit, ut (se eodem loco) solveret).^ The passage 
 from L. 6 5, D. de judiciis, further says : — 
 
 " Exigere dotem Tnulier debet illic, ubi ma/ritus domicilium 
 habuit, non ubi instrumentum dotale conscriptwm est; nee 
 enim id genus contractus est, ut et eum. locum spectari oper- 
 teat, in quo instrwmentv/m datis factv/m est, quam, eu7n, in 
 cujus doinicUium et ipsa mulierper conditionem matrimonii 
 erat redMura." 
 
 This means that the treaty as to dowry here considered is 
 not of such a kind that weight is to be laid upon the place 
 
 9 Cf., too, L. 20. D. 5, 1 ; Paulus, libro Iviii. ad Edictum : " omnem obliga- 
 tionem pro contractu habendam existvmandum est, ut ubicunque aliquis 
 obligatus et contrahi videatv/r," where there is no mention of a place of 
 payment. 
 
528 [§ 120. 
 
 where it is entered upon ; bona fides does not require that 
 the husband should have to answer these in actions as to the 
 dos. There must then be other contracts in which the place 
 where they originate influences questions as to jurisdiction. 
 If the prevailing view were correct, the cue of the jurist 
 would have been to emphasise the similarity of the contract 
 with which he is dealing to other contracts, instead of hold- 
 ing their differences up to view. 
 
 The passages just cited are, with the exception of that 
 from L. 21,D. de 0. et. A., taken from the Commentaries on the 
 Edict, a circumstance which seems to me to indicate that aU 
 the provisions as to jurisdiction have their origin in praetorian 
 law, which again paid special attention to considerations of 
 bona fides and equity. 
 
 Lastly, Justinian determines, in Nov. 69, cap. 1, the juris- 
 diction applicable to contracts, by pointing out that settled as 
 it is it will facilitate the production of proof in conventiones 
 and contractus just as in the case of delicts. Can we say 
 that proof as to the execution of the contract will be most 
 easily procured at the place of payment, which may be deter- 
 mined by caprice or pure accident ?^*'' " 
 
 On the principle of bona fides two provisions of Eoman 
 law may be easily explained which the prevailing theories 
 can only decribe as singular exceptions : — 1st, the rule that 
 unless a testator had given special instructions for payment of a 
 legacy at some other place, no action to compel payment of 
 it could be brought, except where the greater part of the 
 succession was situated ;^^ 2nd, the rule that, besides the 
 jurisdiction which was founded at the domicile of the 
 deceased and at the domicile of the fideicommissiarius 
 himself, there should be no other jurisdiction at the domicile 
 of the beneficiary.^* With regard specially to the former 
 
 10 The forum domicilii itself must in my opinion rest upon a decree of the 
 magistrate ; the proper jurisdiction according to the jits civile would be the 
 
 " We need not further discuss in this place the forum gestae administra- 
 tionis, which is a variety of the/orum contractus. See above, § 66, note 21, 
 §8V. 
 
 12 L. 50, pr. D. 5, 1. 
 
 " L. 66, § 4, D. ad Seum. Trib. 36, 1. 
 
§ 120.] 529 
 
 rule, in my opinion there is no thought in it of a fidei 
 commissuTn hereditatls, as Savigny supposes, § 370 (Guthrie, 
 p. 212); the will of the testator as to the place where 
 the delivery should take place would have no appli- 
 cation to a fidei comTnissum hereditatis which can be 
 restored by a simple declaration on the part of the person 
 burdened with the trust ;^* the will of the testator is far more 
 likely to have been expressed with regard to a fidei com- 
 misswm of some particular articles. In the case of a fidei 
 commissum it depends upon the instructions of the deceased 
 where the heir is bound to answer to suits, provided always 
 (by Roman law) that he possesses property, or is personally 
 present in the proposed jurisdiction. Failing express direc- 
 tions, which as a rule will consist in appointing a place of 
 payment, the heir is only bound to pay where it is most 
 convenient for him to do so — i.e., where the largest part of 
 the succession happens to be. 
 
 I have thought it my duty to protract this discussion to 
 some length, because I was anxious to exhibit in the prin- 
 ciples of Roman law as to the forum contractus the same 
 rule which, according to my theory, determines the local law 
 of obligations. If I have succeeded, then I have given an 
 indirect confirmation to the propositions abeady deduced in 
 my discussion of the law of obligations. 
 
 Let us now consider the question whether by the law of 
 the present day the forum contractus requires the personal 
 presence of the defender, or the possession of some property 
 by him. 
 
 Here the first passage that falls to be considered is from 
 the canon law, which apparently, but only apparently, is at 
 variance with this requirement : — 
 
 Cap. 1, § 3, in Vlto 2, 2 {de foro compel) — 
 
 " Contrahentes vera aliarun dioecesum, super contractibus 
 initis in Rhemensi dioccesi ab eisdem (nisi inveniantur 
 ibidem) trahere coram se dehent invitos : licet in possessionem 
 bonoru/m, qum ibi habent, etiam quum alibi copiam sui 
 faciant, si eorv/m auctoritate citati comparere contemnant, 
 possint missionem facere in eos ; vel {si forte malitiose se 
 
 w L. 37 pr. D. 36, 1. 
 
 2 M 
 
530 t§ 120. 
 
 ipsos occultent, ne citatio perveniat ad eosdem) decernere 
 faciendam in possessionem ho7wrv/m quce in alia etiarn 
 dioecesi habere noscuntur : sed tunc loci dioecesanus ad 
 denuntiationein ipsorum faciat hujus'inodi missionem." 
 
 It is said here that upon the requisition of the court in 
 whose jurisdiction the contract was concluded, the judge in 
 whose jurisdiction the goods of the debtor happen to be, shall 
 give missio in bona, in order to force the debtor to answer 
 in action. But a necessary condition is that the debtor 
 actually is resident in the jurisdiction of the court where the 
 process is depending, and prevents the execution of the cita- 
 tion by treacherously concealing himself The matter is then 
 considered as if the citation had been handed to the debtor 
 within that jurisdiction, the competency of the court estab- 
 lished, and thereafter the assistance, due by the court to which 
 the requisition is addressed, demanded. It would be a contra- 
 diction to hold that the conclusion of the passage speaks of 
 debtors who are not to be found within the jurisdiction of 
 the court, since the beginning of the passage clearly sets 
 forth that debtors who are not themselves within the juris- 
 diction of the court, and who do not possess property there, 
 cannot be compelled to appear in any action against their 
 will. 
 
 The last decree of the diet of the Empire set the fiction of 
 litis contestatio in the place of the missio in bona in cases 
 where the defender will not give obedience to the citation. It 
 seems as if the effect of that were to set aside the necessity 
 of personal presence, or the possession of property within the 
 jurisdiction of the court, which the older process in cases of 
 contumacy required as its condition. But we must under- 
 stand that the truth is quite the reverse, in so far as the 
 forum contractus really rests on the principles of bona fides. 
 Would it accord with these principles if the creditor should 
 allow the debtor with his whole estate to slip out of the 
 jurisdiction of the court in order to raise his action subse- 
 quently before a court where the defender would find it much 
 more difficult to maintain his case ?^^ I believe not, and am 
 
 16 The Draft II. for the States of the German Bund provides (of. § 13 of 
 Draft I.) : " The jurisdiction of the obligation is in the sense of the statute 
 
§ 120.] 531 
 
 all tlie more persuaded that it is not so, since a widely 
 spread usage has, in spite of the law of the Empire I have 
 cited, retained that essential condition of jurisdiction. 
 
 On the other hand, I am of opinion that these conditions 
 are no longer required in the case of obligations ex delicto ; 
 there can be no question of bona, fides here, and any measure 
 to protect the injured party seems justifiable. 
 
 But, lastly, there is one case in which I recognise that the 
 forum contractus is always constituted at the place of payment 
 which has been stipulated— viz., if the debtor in a liquid 
 document of debt (especially such as a bill), has undertaken 
 to pay at a particular place. We must, in such a case, take 
 the view that in default of payment the liquid document of 
 debt gives the creditor instant right to exact his debt by 
 process, and by process, therefore, at the place of payment : 
 this is favoured by the analogy of the Eoman law, according 
 to which the stricti juris ohligatio could at first be enforced 
 only at the place of payment, and must always be enforced 
 there in the first instance. One must take care, however, not 
 to confuse a liquid document of debt, in which the debtor 
 knowingly submits himself to a parata escecutio, with any 
 written evidence that may be produced.-'^ The jurisdiction 
 in challenges arising ex lege diffamari and ex lege si con- 
 tendat}'' given to the court which would have jurisdiction 
 in the principal claim to which the challenges refer (and, 
 
 set lip in the courts of the place where the defender has to perform his 
 obligation, if — 
 
 " 1st. The parties have expressly fixed on this place, in which sense the 
 choice of a domicile to carry out a contract is to be construed ; or 
 
 " 2m(i. Failing any such express appointment, the citation by which the 
 process is introduced, or the order of the judge, is served upon the defender 
 within the territory of the court." 
 
 1" The expression in bills of exchange, " payable in any place where I am 
 found," signifies, according to several decisions of the Supreme Courts of 
 Germany (cf. Borchardt. Wechseldordn. pp. 277-78) that the drawer will be 
 subject to the law and the courts that regulate bills in any country in which 
 he is after the bUl falls due. Perhaps, too, the passages of the Pandekts, in 
 whioli special weight is laid upon the place of payment, are to be understood 
 of stricti juris obligationesj whereas L. 19, D. 5, 1, makes no mention of 
 these. 
 
 " See Bayer, p. 211 ; Bayer, Theory of Summary Process, 6th edit. §§52 
 et seq. 
 
532 [§ 120. 
 
 therefore, as a rule, in personal actions the court of the 
 debtor's domicile), seems, however, to contradict the principles 
 we have laid down ; and, as a matter of fact, it has been 
 contended ^' that there should be no jurisdiction in such 
 matters at the domicile of the challenger, but only at that of 
 the challenged, according to the principles of international 
 law, by which, as a general rule, the domicile of the defender 
 settles the jurisdiction, and especially that it is at variance 
 with the principles of the jus gentium, that any foreigner 
 should be constrained to bring an action. But all that the 
 challenger can effect is to release himself from an obligation ; 
 he cannot, as in other suits, establish an independent right 
 against his adversary. It is, however, the courts competent 
 to the principal claim which determine whether the challenger 
 is to be released. We find, too, in accordance with this, 
 that there is recognised, and cannot but be recognised in 
 international intercourse the jurisdiction of the forum rei sitce 
 in challenges against undefined adversaries, and in edictal 
 citations which happen to relate to real rights in heritable 
 estate. An indirect compulsitor to appear in an action, 
 which lies merely in the risk of losing a right, affords no 
 contradiction of the principles of international law : there 
 is a compulsitor of this kind involved in the law of pre- 
 scription.-'^ 
 
 We have already shown that jurisdiction by arrestments is 
 not at variance with international law ; and if we put out of 
 sight the more or less problematical shapes of the so-called 
 forum connexitatis materialis and the forwm continentice 
 causarum ^ — the former of which, perhaps, arises only in the 
 
 18 Foelix i. § 189, p. 391. 
 
 1' It is a consequence of the doctrine that the lex domicilii of the creditor 
 is able to lay special obligations upon him, that international law is forced 
 to recognise a jurisdiction that may exist at the domicile of the party 
 challenged, in terms of the law of that place, so far at least as the principal 
 action is personal. Cf. § 16 of the Draft Code II. for the States of the Bund : 
 " In actions of challenge {ex lege diffamari and ex lege si contendat) we must 
 recognise the jurisdiction whose competency to the legal settlement of the 
 principal claim is established by this law, and also the jurisdiction of the 
 domicile of the person challenged." 
 
 2» Cf. Bayer, p. 20Y, p. 228. 
 
§ 120.] 633 
 
 application of other jurisdictions ;^* the latter, however, as it 
 cannot exist without a common court of appeal from the 
 other different tribunals that are competent, has no appli- 
 cation to the courts of different countries — there only 
 remains the forum reconventionis, which certainly cannot 
 be deduced from any of the principles aboYC demonstrated, 
 and, in my view, can make no claim to. international recog- 
 mtion.22 This principle of jurisdiction rests on grounds of 
 expediency, — which are, however, where the subjects of the 
 different actions are unconnected, of a very doubtful nature 
 — and reverses the competency of the courts, while it cannot 
 be rested upon any voluntary subjection of the pursuer and 
 defender, such as must plainly be recognised in interna- 
 tional law. Principle requires the pursuer to foUow out his 
 rights in the courts of the defender's domicile, or of the 
 place where the thing in dispute is ; and to that we cannot 
 attach the condition that tbe defender shall be able to follow 
 out his rights before a court which the principles of inter- 
 national law declare to be incompetent. The conditions of 
 the privilege vary, of course, within one and the same country, 
 in the territory of one and the same legislature. 
 
 21 Cf. Wetzell, § 41, pp. 359-60. The action which a solicitor has for pay- 
 ment of his honorarium, and which the parties have against the solicitor for 
 delivery of the papers in the case in the court where the principal action 
 depends, is, in my view, a case of the forum contractus. The necessity for 
 a party who desires to intervene appearing in the court of the principal suit, 
 cannot afford any ground for setting np a special jurisdiction, for it is obvious 
 that one who wishes to take pait in ii suit must do so in the court in which 
 that action is proceeding. If, histly, at common kw damages for injury done 
 by a criminal act can be claimed by the person injured at the seat of the 
 criminal court adhcerendo, it is to be remembered that if we cannot regard 
 the forum, deprehensionis as applicable in international criminal law — al- 
 thouifli in the early relations of German States to each other, at the time of 
 the Empire, this might have been practicable — the judex domicilii or loci 
 delicti commissi will decide the claim for damages. 
 
 ■^^ Of course, where the claims are connected, reasons of expediency might 
 recommend an alteration in tbe common law of nations or the terms of 
 treaties. See § 14 of the Draft II. of the Code for the Bund 
 
534 {Note X. 
 
 Note X, on §§119, 120. 
 
 [By the Civil Processordnung, which has regulated juris- 
 diction in the whole German Empire since 1st October, 1879, 
 the general rule is, that the forum is determined by the domi- 
 cile of the defender (§ 1 2), unless there is some other ex- 
 clusive jurisdiction in which it must be brought. In cases 
 where the defender has no domicile within the empire, the 
 fact of residence for a substantial period will establish juris- 
 diction (§ 18), but only if, in addition to the fact of resi- 
 dence, there has been personal service. If a German has no 
 known residence within the empire, an action may be brought 
 against him at his last domicile. Eeal rights are determined 
 by the lex rei sitce, as are also personal claims founded upon 
 security rights and actions of damages connected with real 
 estate (§ 25). Questions of status are determined solely by 
 the courts of the domicile ; and in questions of succession, 
 the place of the opening of the succession — i.e., the last domi- 
 cile of the deceased — will be the proper forv/m for certain 
 actions (§ 28). By § 594, procedure for determining the 
 insanity or prodigality of a German who has gone abroad, 
 and restraining him in the enjoyment or disposition of his 
 property, may be taken at the courts of his last domicile. 
 The nationality or domicile of the pursuer of an action is 
 immaterial if jurisdiction be estabhshed by some recognised 
 means ; and as a foreigner is entitled to sue in German 
 courts, so, too, he is entitled to ask them to impose arrest- 
 ments upon property, moveable or immoveable, which is in 
 Germany, in order to secure funds for execution of a judg- 
 ment which is yet to be pronounced abroad. Jurisdiction 
 to try the merits of a claim is not founded in the general 
 case by arrestments specially used for that purpose ; but in 
 patrimonial actions, where the defender has no domicile in 
 Gei'many, jurisdiction is obtained by the following provi- 
 sions in the 24th section : — "In actions for patrimonial 
 claims against any person who has no domicile in Germany, 
 that court in whose territory there is property belonging to 
 him, or where the particular article sued for is situated, has 
 jurisdiction. In petitory actions the domicile of the debtor 
 is held to be the seat of his property; and also, if any articles 
 
Note X.] 535 
 
 have been attached in security of the claim which is to be 
 enforced in the action, the place where these articles actually 
 are is held to be their seat." This power will operate in the 
 same way as an arrestment to found jurisdiction in the case 
 of foreigners, or even of Germans domiciled abroad, and it will 
 be noticed that the jurisdiction so established is not limited to 
 the value of the property in the territory. But the burden of 
 showing that the defender has property there lies on the pur- 
 suer (Trib. of the Empire, Dresden, 25th Jan. 1881). It is 
 not competent to do personal diligence against any foreigner 
 so as to compel him to bring into the empire property that 
 may be thus attached in security of claims made upon him ; 
 but in extreme cases such personal arrest may be employed 
 to prevent a foreigner from withdrawing his property out 
 of the jurisdiction (§ 798). By § 29, the place of the ful- 
 filment of an obligation is held to supply the true forwni for 
 the obligation, and is set up as an alternative for the forum 
 of the debtor's domicile. 
 
 In France, as we have seen, the courts are in theory closed, 
 and the remedies of law denied to foreigners, although to this 
 rule there are numerous exceptions. The same principle on 
 which such a rule is justified — viz., that French courts exist 
 for the benefit of Frenchmen — is carried a little further, and 
 it is laid d jwn that all French citizens are entitled to demand 
 justice from their own courts. It has been remarked by 
 an Italian judge (App. Court of Milan, 22nd September, 
 1879, in causa Mazzotti v. Cisi) that "even French authors 
 and French magistrates recognise that this jurisdiction is too 
 grasping and is contrary to common law. It constitutes a 
 privilege at variance with all rules of justice, because it tends 
 to take away the subjects of a country from their own tri- 
 bunals." Thus Frenchmen are allowed to sue foreigners 
 without any residence in France, and upon obligations whose 
 forum is in some foreign country. Multo magis is it true 
 that French law will recognise residence without Government 
 authority as sufficient to allow a suit to be brought against 
 one so resident by a Frenchman. This latter proposition hfis 
 been laid down in a case where there was a " domicile in 
 fact," but no Government license to reside (Hewlett v. Leth- 
 bridge, Trib. Civ. de la Seine, 18th March, 1880). The same 
 
536 [J^ote X. 
 
 was held in a case where the pursuer was a foreigner and 
 the defender was resident in French territory (C. de Pondi- 
 cherry, 27th August, 1864). So, too, where obHgations 
 are contracted between a foreigner so resident and French 
 subjects, the courts of France will adjudicate upon them, 
 even with the result of affecting real property abroad 
 (Tannongi v. Tannongi, C. de Cass, 16th January, 1867 ; and 
 Cour d'Aix, 31st January, 1876). The fact of residence 
 as a ground for the exercise of jurisdiction was also sus- 
 tained in Dubost v. Boracio, 20th March, 1879, by the Court 
 of Lyons. 
 
 The French courts will exercise jurisdiction to regulate 
 obligations arising from quasi-delicts (Chemin de Fer de Lyon 
 V. Eon tin. Code Cass. 1875), and will recognise the exercise 
 of such a jurisdiction by a foreign court (Trib. de Comm. 
 de Havre, 9th October, 1874). 
 
 It is the state of fact at the time of the action, and not 
 at the date of the origin of the obligation, that will deter- 
 mine the jurisdiction, althotigh the court thus empowered to 
 exercise jurisdiction may be entitled to administer the law of 
 another country (Tannongi v. Tannongi, C. d'Aix, 31st 
 Jan. 1876). 
 
 The use of arrestments in France will not found juris- 
 diction to entertain the merits of the dispute between the 
 parties, but they may be used by a court that is incompetent 
 to the merits of that dispute so as to maintain the status quo 
 (Cornelli v. Cornelli, 6th March, 1880, Trib. Civ de la Seine), 
 just as the Court will place an estate under judicial admin- 
 istration in France for preservation when parties are disput- 
 ing as to the property of it in foreign courts (Gandzornoff 
 V. Lehiantz, 6th April, 1877, Trib. Comm. de Marseilles). 
 So, too, in a case where the heirs and the creditors of a 
 deceased foreigner were in litigation for the right to certain 
 life-insurances, the insurance company being French and 
 being nominally a defender in the action for the sake of 
 obtaining a discharge, the French courts would not exercise 
 jurisdiction but upheld arrestments used upon the depend- 
 ence of the suit till the competent foreign court should 
 determine the rights of parties (H^ritiers Philippe, Trib. Civ. 
 de la Seine, 10th April, 1880). Again, where an English 
 
JfoteX.] 537 
 
 ship had been arrested in a French port by foreign creditors, 
 and along with the ship the freight in the hands of a French 
 subject, the court satisfied itself that the title of the arrester 
 was prima facie valid, and sustained the arrestment to an 
 extent sufficient to cover the claims made upon the owners of 
 the ship and freight (Smith & Cie, Trib. Comm. de Marseilles, 
 13th Feb. 1880). In neither of these cases had any action 
 been raised in the foreign courts at the date when the 
 validity of the arrestments was assailed in the French courts. 
 On the other hand, where a sum was arrested in France, and 
 competing claims were made upon it by French and foreign 
 creditors, the courts of France will determine the rights of 
 these claimants, the only alternative being to remit them to 
 a foreign court, which would be no more competent than • the 
 French court (D'Arzac, Caprera & Cie v. Georgiades, Trib. 
 Civ. de la Seine, 12th May, 1877). 
 
 In Egypt and in Italy, personal citation in the territory 
 will found jurisdiction against foreigners even on account of 
 contracts concluded abroad. 
 
 In Belgium, a defender is competently cited before a 
 Belgian court if he is domiciled or resident there, or if the 
 action arises out of a contract that has originated, or is to be 
 performed there. Like the French courts, those of Belgium will 
 grant warrant to arrest property belonging to a foreigner at 
 the instance of a foreigner to await the issue of a suit raised, 
 or to be raised thereafter, in a foreign court. It is held to be 
 juris gentium that the courts of one nation should assist those 
 of another in preserving the relative position of foreigners and 
 their existing rights of property during the dependence of an 
 action, or prevent any unexpected or fraudulent dealing on 
 the eve of an action in which the property in question is to 
 be staked (Trib. Civ. de Gand, 6th April, 1870 ; same court, 
 27th Dec. 1870; Cour de Bruxelles, 18th July, 1871; Trib. 
 Civ. d'Anvers, 2oth Nov. 1871). 
 
 In Scotland, the two leading grounds for jurisdiction are 
 (1) personal presence of the defender within the territory, 
 and (2) the presence of property belonging to him within the 
 territory, either real property, or moveables fixed in their 
 situs by arrestment. The most common kind of jurisdiction, 
 ratione domicilii, needs no further illustration or explana- 
 
538 [NoUX. 
 
 tion, except that it may be noted that the conception of 
 domicile does not demand any Government license ; it is 
 constituted by the fact of residence combined with the 
 intention of residing for an indefinite period ; this is the only 
 ground upon which jurisdiction to determine questions of 
 status can be founded, except in cases where the conception 
 of a matrimonial domicile is by some authorities allowed to 
 establish a special kind of jurisdiction ; residence in Scotland 
 for a period of forty days prior to the action also gives juris- 
 diction in all actions arising on contracts, delicts, or quasi- 
 delicts, and in questions of bankruptcy ; in certain cases, too, 
 the court will exercise jurisdiction over persons who have 
 been there for as short a time as can be figured, if personal 
 service of the summons be made upon them ; this class of 
 cases consists of actions for aliment of a child, for restitution 
 of moveables seized or hired in Scotland, and for the pay- 
 ment of goods recently bought for ready money. " In actions 
 on contract, whether for implement or damages, it is enough 
 that the place of implement was in Scotland, although the 
 place of contract was out of Scotland " (Mackay, Practice of 
 Court of Session, L p. 1 6 9). In such cases upon contract, 
 there must, however, be personal service within the territory. 
 An itinerant — e.g., a hawker or pedlar — may be convened in 
 any court within whose jurisdiction he can be found (Lind 
 V. Casadinos, 24th June, 1881, 8, R 849). A debtor who 
 intends to quit Scotland in order to avoid the service of an 
 action may be detained upon a warrant issued against him 
 by any magistrate as being in meditatione fugce, until he 
 find caution de judicio sisti : this remedy may be adopted 
 although both creditor and debtor are foreigners, but the 
 ground on which the threatened action is to proceed must be 
 either a liquid debt or a specific claim. 
 
 The possession of heritable or real estate in Scotland places 
 the proprietor thereof under the jurisdiction of the Scots 
 courts, even although he is not personally cited or domiciled 
 there, and although the cause of action is totally unconnected 
 with that property. Where moveables are fixed in Scotland — 
 e.g., by being in manibus curice, as the fund in a process of 
 multiplepoinding is, or by being laid under arrestment — then 
 the claimants in the former case, or the owner of the fund 
 
NoteX.] 539 
 
 or property in the latter case, are subjected to the jurisdiction 
 of the court ; this arrestment of moveables founds jurisdiction 
 in the Scots courts in actions arising upon contract, and the 
 judgment that may be obtained in an action so founded is 
 not limited to the amount or value of that which is arrested. 
 The courts of Scotland, also, proceeding on the same prin- 
 ciple as is enunciated in the Belgian decisions quoted above, 
 have allowed an action to proceed before them so as to secure 
 the execution of diligence used on the dependence, although 
 the real issue raised in the Scottish action was avowedly not 
 intended to be tried in Scotla,nd, but was already in depend- 
 ence before the EngHsh courts ; the pursuer was allowed 
 the benefit of his diligence although it was used on the 
 dependence of an action which would not of itself have been 
 competent (Hawkins v. Wedderburn, 9th March, 1842, 4, D. 
 924, and Fordyce v. Bridges, 2nd June, 1842, 4, D. 1334). 
 
 " I repeat, I think the dependence of the suit in England 
 of itself gives us full and complete jurisdiction, the defender 
 having property in this country, if there is any end material 
 to justice between these parties, which the entertaining the 
 suit in this country can promote and serve. I think the 
 furtherance of the interests — the securing of the interests 
 involved in that action, can be stated and founded on in this 
 country as an existing civil right, to be protected, promoted, 
 and secured in the administration of justice in this country. 
 ... I consider the competency of Scotch process in aid, as 
 it is called, of a Chancery suit, or, as I express it, to secure 
 the ultimate rights and the ultimate payment of a party who 
 has a depending action in Chancery, and finds the whole 
 property, it may be, of his adversary in Scotland, to be a 
 matter of clear, plain, and broad justice in the administration 
 of law in regard to a person who has landed property here " 
 (per Hope, L. J. C, in Fordyce, cited supra). The diligences 
 of inhibition and arrestment — i.e., diligence over both heritage 
 and moveables in Scotland — were used and were sustained in 
 these actions. 
 
 In England, the leading ground for the foundation of juris- 
 diction is personal service within the territory of the court, 
 but in actions where the property or possession of real estate 
 in a foreign country is in question, personal service is not held 
 
540 [JVote X. 
 
 sufficient to confer jurisdiction on English courts ; in actions 
 against a company, service may be made at their principal 
 place of business within the territory, — in actions to recover 
 land by posting a copy of the writ conspicuously on the pro- 
 perty, and in Admiralty actions in rem by affixing the ori- 
 ginal writ, and subsequently a copy, upon the mainmast of 
 the vessel. Service out of the jurisdiction or territory may 
 be allowed in the case of any defender in the discretion of 
 the judge when the subject matter of the action is land, stock, 
 or other property, situate within the jurisdiction, or any act, 
 deed, or will, affecting such land, stock, or property ; or, 
 again, it may be allowed when it is sought to enforce or 
 rescind or otherwise affect any contract, or to demand 
 damages or relief for breach of any contract, which was 
 made within the jurisdiction, or when there has been within 
 the jurisdiction a breach of a contract, wherever it may have 
 been made, or when any act or thing sought to be restrained 
 or removed, or for which damages are sought to be recovered, 
 was or is to be done, or is situate within the jurisdiction. 
 In the case of a foreigner, the court will order notice of the 
 writ and not the writ itself to be served. The sweeping 
 nature of the jurisdiction thus claimed by the English courts 
 has been exercised in such a way as to create grave hardships 
 to Scots defenders, and will either be restrained by statute, 
 or amended by requiring a more careful examination of 
 affidavits and consideration of the rights of defenders by 
 those who have the jurisdiction under their administration. 
 
 The English Court of Admiralty exercises in actions of 
 damages for collision, and in actions for salvage, its jurisdic- 
 tion, and enforces payment of its decrees without regard to 
 the place where the collision or other act giving rise to the 
 action took place, if it took place on the high seas where the 
 tide ebbs and flows, and without regard to the fact that one 
 or both of the ships concerned are foreigners, unless they are 
 ships of a foreign State used for public purposes. Foreign 
 sailors, too, belonging to a foreign ship, may recover wages 
 due to them while the ship is lying in a British port. This 
 kind of jurisdiction takes its rise partly in the old maritime 
 jurisdiction of the court, and as regards the competency of 
 actions for damages is confirmed by 3 & 4 Vict. c. 65, § 6, 
 
iVofeX,§ 121.] 541 
 
 and 24 Vict. c. 10, § 7: "The High Court of Admiralty 
 shall have jurisdiction over any claim for damage done by 
 any ship." But in order to enforce this jurisdiction against 
 a foreign ship by proceedings in rem, the ship must be 
 arrested within British territory, and a collision on the high 
 seas is not an act done within the jurisdiction in respect of 
 which the court can order service abroad upon a defender. 
 Where it is proposed to exercise jurisdiction either in per- 
 sonaTn or in rem against a foreign owner of a foreign ship, 
 the dependence of the suit must be intimated to the consul 
 of the nation to which the ship belongs. It is, however, 
 doubtful if a foreign court would allow execution of a decree 
 in personam, pronounced after intimation of this kind, and 
 proceeding upon so comprehensive a ground of jurisdiction ; 
 the action in rem where the ship is arrested, proceeds upon 
 principles generally recognised, but it may be noted that 
 (Re Smith, 1876, L. R. 1 P. D. 300), this arrest of a ship is 
 the only form of founding jurisdiction by the attachment of 
 property belonging to the defender which is admitted in 
 England, if we except the attachment used in the city of 
 London, and some other local jurisdictions. 
 
 There is also known in English practice a writ ne exeat 
 regno, a process whereby a defendant may be prevented 
 from leaving England. " The king indeed, by his royal pre- 
 rogative, may issue his writ ne exeat regno, and prohibit any 
 of his subjects from going into foreign ports without license ; 
 for this may be necessary for the public service, and safe- 
 guard of the Commonwealth " (Stephen's Comm. bk. i. 
 p. 147). See this applied in the case of a defendant who 
 was a domiciled Canadian (Lees v. Patterson, L. E. 7 Ch. 
 D. 866). 
 
 Prorogated JuRiSDiCTioif. 
 
 § 121. 
 
 In my opinion, it is indisputable that a tribunal may com- 
 petently be created by an express voluntary submission of 
 parties, which must be recognised in international relations 
 in all cases where the parties have free power to deal with 
 
542 [§ 121. 
 
 the legal relations that are involved. (As to the opposite 
 case, see § 92, and the Draft II. §§ 20-2 infra, note 2.) 
 
 The principles which regula,te the validity of contracts in 
 modern times allow that submission to be made by a pre- 
 vious agreement settling the competency of the foreign court, 
 as well as by one in the course of the process.* Of course, 
 however, if a foreign court is made exclusively competent 
 by the terms of the agreement, the agreement as against 
 the pursuer can only be enforced in the court which would 
 otherwise have jurisdiction, if it is understood that the foreign 
 court will decide the case, and that the whole convention shall 
 be held null, as being contra honos mores, if it can be shown 
 to be merely a fraudulent means of throwing difficulties in the 
 pursuer's way. 
 
 A prorogation not limited to particular legal questions 
 would, on the principles of both public and private law, in 
 my opinion, deserve to be disregarded, both as being an 
 attempt by a party to withdraw himself from the judicial 
 power of the State to which he belongs, and by reason 
 of the indefiniteness of the interest involved in such a 
 bargain.^ 
 
 ' See Savigny, § 369 ; Guthrie, pp. 196-97, note ; and Bayer, p. 235, as to 
 the passages of Roman law, L. 18. D. 2, 1, and L. 29, G. de padis, 2, 3. 
 
 2 The treaties collected by Krug in Germany almost all provide that — 
 
 " No subject is allowed to subject himself by a voluntary prorogation to 
 the jurisdiction of another State, to which he does not belong as a subject and 
 citizen." 
 
 See, on the other hand, the principle of the Draft I. p. 59, where mention 
 is made of the doubt whether these provisions are not to be confined to that 
 general prorogation condemned in the text. The 20th article of the Draft II. 
 runs thus : — 
 
 " The jurisdiction of domicile established in one German State (§ 3) cannot, 
 by a voluntary submission (prorogation), be transferred to the courts of 
 another State in its full compass. 
 
 " Except in this case, an express or implied subjection to the courts of another 
 country is to be recognised in so far as a prorogation to the court of the other 
 State, if it were a native court, would be admitted by the law of the State in 
 which the defender has his regular domicile. 
 
 "A prorogation to the courts of another State is, however, not to be 
 recognised — 
 
 " First, if the suit has for its subject a question of status, or the constitu- 
 tion, existence, or dissolution of the marriage of one of the parties. 
 
§ 121.J 543 
 
 There seems to be some doubt as to tbe competency of 
 prorogation in real actions (and the actiones in rem scriptce, 
 
 " Second, if the exclusive jurisdiction over heritage, referred to in § 19, 
 abs. 2, is proposed to be transferred by prorogation to the courts of 
 another State. 
 
 " It is not to be held as a tacit prorogation if the defender pays no heed to 
 the citation th:it introduces the process, and allows a sentence to go out 
 agi-inst him in absence in contumacem." 
 
 The § 19, abs. 2, runs thus : — 
 
 " III so far as the actions described in § 8 and § 9 have to do with immove- 
 ables, the jurisdiction of the domicile is the only competent jurisdiction in 
 addition to that where the property is situated ; and the forum domicilii is 
 only com]ietent if it is within the boundaries of the same State." 
 
 § 8 proceeds thus : — 
 
 "The courts of the place where the thing is are alone to be held compe- 
 tent in all real actions, including actions of division and for all possessional suits 
 and personal actions which may be directed against the owner of a thing in 
 that character (actiones in rem scriptce).'' 
 
 § 9 sava : — 
 
 " 'I'lie foi um of succession is to be recognised — 
 
 " First, in all suits which deal with the order of succession, the advancement 
 of claims to legacies, or other privileges consequent upon the decease 
 or the division of the succession." 
 
 [By the law of Scotland, the essentials for prorogation are, that the parties 
 should consent, either expressly or tacitly, and that the judge should have 
 such jurisdiction as may be a proper or habile subject of prorogation. There 
 can be no prorogation where some other court, or the court of some other 
 country, has an exclusive jurisdiction (Erskine, i. 2, 27 et seq). In a case 
 decided in Switzerland (L. P. et Oie. de Lyon i>. E. N. de Geneve. Trib. 
 F6d^r, 2nd July, 1875), it was held that in a purely personal action a Swiss 
 might prorogate the jurisdiction of the French courts, and could not afterwards 
 resist the execution of their judgment in Switzerland by pleading no juris- 
 diction. It is there laid down that in questions of succession, bankruptcy, 
 status, and questions relating to immoveables there cannot be any prorogation. 
 It was debated, but not determined, whether a general and indefinite proro- 
 gation was competent. 
 
 In Germany, by §§ 38, 39, 40 of the CivU Proeessordnung of 1876, it is 
 declared competent for parties to prorogate jurisdiction except where there 
 are questions of status involved, or where any other exclusive jurisdiction 
 exists. 
 
 In England, where the plaintiff selects a foreign tribunal, he is bound by 
 its decision (Westlake, § 386, p. 388) ; and if the defendant voluntarily 
 appears, he too is bound. It is a question whether he will be bound if 
 he comes forward, not voluntarily, but to plead in the foreign court in 
 order to save some property in the hands of that court (Westlake, § 308, 
 p. 308).] 
 
544 [§ 121. 
 
 which are on the same footing) which concern heritage.' 
 I am inclined, however, to pronounce in favour of the proro- 
 gation, — so far, at least, as concerns those States in which 
 real rights in heritage cannot be referred to feudal principles. 
 The opposite view is at variance with the free rights of par- 
 ties to dispose of their property, and is in a legal sense only 
 to be derived from the assumption of a right of superiority 
 over particular pieces of heritage existing in the State or its 
 sovereign. This point of view, which no doubt applies to the 
 English Common Law, does not, for instance, accord with the 
 common law of Germany or the law of France. Nor does it 
 seem to me that considerations of expediency go far to sup- 
 port the exclusion of prorogation by force of positive legis- 
 lative enactment. The parties have themselves to blame if 
 they go before a judge who deals with them unrighteously ; 
 and the protection which the refusal of the power of proro- 
 gation may perhaps be thought to give against imprudence 
 — a desirable object — is, in my opinion, more than counter- 
 balanced by other disadvantages which result from such a 
 prohibition. Rights of third parties. and the interests of the 
 State can only be imperilled by prorogation in so far as a 
 suit conducted capriciously in accordance with the lex rei 
 sitce prejudices third parties or the State. And lastly, the 
 judgment, according to the nature of the thing, is only effec- 
 tual in so far as it confers rights to the real property which 
 are possible according to lex rei sitae.*' Especially in disputes 
 as to succession, which, in accordance with Roman law, 
 require, as being disputes about a universal succession, an uni- 
 form settlement and treatment, to exclude prorogation for 
 real estate situated abroad would easily lead to complications. 
 The facts of each case must determine whether a proroga- 
 tion can be implied. The pursuer always submits himself 
 to the court in which he brings his suit, and that without 
 
 3 The provision of the Draft Code for the States of the Bund rests upon 
 this. See the explanation of the Draft I. p. 60. 
 
 * E.g., separate property in a pertinent of an estate that cannot be divided 
 is by the hx, rei sitcB impossible. The foreign judge who has acquired juris- 
 diction by prorogation giyes such a right to one of the litigants. Here the 
 effect of the judgment is to produce a legal impossibility, and is to that extent 
 null by the law of the judge himself. 
 
§§ 121, 122.] 545 
 
 any regard to the reasons wMcli have induced him to choose 
 that court.* If, at the time of raising the action abroad, it 
 was not advisable or advantageous, having regard to the 
 possibility of execution, to raise it at home, that does not 
 prevent the renunciation of the native forum from being 
 quite voluntary, and that is the only question that needs to 
 be answered ; we may also remember that it is quite unusual 
 in law to take account of the motives for an act, and that to 
 do so must create in practice the greatest difficulties. 
 
 But if the defender omits to take objection to the incom- 
 petency of the court, we have still nothing more than a tacit 
 submission, if the law under which the court sits would have 
 required it to pronounce for its incompetency if the question 
 had been raised ; and no prorogation can be deduced from 
 the fact that the defender has not appeared, and has allowed 
 sentence to go out against him as in contumacia, because, 
 upon the principles of international law, no State has the 
 power of forcing a defender to appear, if he is not subject to 
 its authority in the matter in question.^ 
 
 The Plea of Lis alibi pendens. 
 
 §122. 
 
 The pursuer who raises an action in a foreign court thereby 
 renounces the jurisdiction which there may be in the courts 
 of his own country,^ and at the same time gives the defender 
 
 ' Mass6, No. 200 ; Gand, No. 280 ; Demangeat, on Fcelix, i. p. 375, pro- 
 pose that the plea of lis alibi pendens, founded upon the dependence of an 
 action abroad, should only be sustained if the defender at the time the first 
 action was raised possessed estate in France. On the other hand, see Foelix, 
 i. p. 374. 
 
 ^ See supra, § 118, note 11, and § 20 ad fin. of Draft II. (supra, note 2). 
 [When one French ship was run down by another in the Bristol Channel, 
 and an action of damages was tried in England, the French courts refused, on 
 an application by the defender, to order repayment, being of opinion (1) that 
 the English courts were competent, and (2) that objection should have been 
 taken at the time (Trib. Comm. de Havre, 9th October, 1874).] 
 
 1 See the foregoing paragraph. 
 
 2 N 
 
546 [§ li. 
 
 right to plead lis alibi pendens in an action in any other 
 court.^ 
 
 No objection can be taken to the validity of this plea on the 
 score that foreign judgments cannot be executed in a country 
 unless the officials of the country invest them with some sup- 
 plementary authority.^ The execution of diligence rests upon 
 a commission given to the officers of the executive, which can 
 only be issued by the authorities of their own country, 
 while the exclusion of all concurrent jurisdictions merely 
 implies an arrangement by the parties as to their private 
 rights. 
 
 The further objection which is urged, that until final judg- 
 ment the recognition of a foreign court can only be held to 
 be an act of capricious choice, which may be recalled at 
 pleasure,* is at variance with the true character of a process, 
 which, in so far as the competency of the court can be 
 generally recognised, binds the parties from the very first 
 as a quasi-contract to recognise the validity of the judgment 
 that shall be pronounced after the regular course of pro- 
 cedure. 
 
 Finally, as it is no right conferred by public law upon 
 the court that furnishes the ground on which this plea rests, 
 it is a mistake to urge as against the recognition of the 
 foreign court's jurisdiction, that it is not necessary to pay 
 any heed to the priority secured by it.* 
 
 It need not be shown in detail what confusion would 
 inevitably arise, if the same party could be compelled to 
 answer simultaneously in the courts of several States as to 
 the same matter. 
 
 2 For the recognition of the dependence of an action before a foreign court, 
 see Martens, § 94 ; Kliiber, § 59 ; Fenerbach, Themis, p. 318 (Draft of a 
 State Treaty, § 21) ; Foelix, i. §§ 181-82, pp. 366 et seq., and modern French 
 practice. See, too, the Draft II. § 26. We assume always that the action 
 deals with a legal relation which is dependent upon the free disposal of the 
 parties, or that the foreign tribunal is competent even without prorogation 
 according to the principles of international law. 
 
 * See, on the other hand, Foelix, i. § 182, pp. 369-70. 
 
 * So K. S. Zaoharia, in Crome & Jaup's Germanien, vol. ii. p. 244 (Giessen, 
 1809). 
 
 * Haas, De effeetu, §§ 14 et seq. 
 
me Y.] 547 
 
 IToteY, 071 § 122. 
 
 [The expediency of recognising the fact of the dependence 
 of a suit between the same parties as to the same subject 
 matter in a foreign court, and staying proceedings in one or 
 the other, is not uniformly admitted, and has not been long 
 established even in England. In the case of Cox v. Mitchell, 
 in 1859, 7 C. B., N. S. 55, where an action was raised in 
 England for damages for breach of contract, and it was objected 
 that another suit was depending in the courts of the United 
 States as to the same matter between the same parties, Erie, 
 C. J., said : " There would be great danger in interfering to 
 prevent a man from being sued in this country, when he may 
 have left his own for the very purpose of evading the conse- 
 quences of a suit against him there." Crowder, J., said he 
 saw no good reasons for granting the motion for staying the 
 action, but many against it ; while Byles, J., said he had 
 never heard of such an application. 
 
 The rule now seems to be that the balance of convenience 
 shall determine the question of staying proceedings in England. 
 Proceedings were stayed in the case of the Gatterina Chiaz- 
 zari, 1876, L. K. 1, P. Div. 368, a case of damages for 
 collision in the Irish Channel, the competing jurisdiction 
 being the Irish; and in the case of the Mali Ivo, 1869, 
 L. E., 2 A. and E. 356. In this case, which was an action for 
 damages in respect of a collision at sea, the parties were, one 
 a Norwegian, the other an Austrian ; the scene of the 
 collision was the Bosphorus. The jurisdiction of the High 
 Court of Admiralty is held to exist all the world over where 
 the tide ebbs and flows ; but it was observed that the pecuH- 
 arity of the jurisdiction invoked would weigh with the judge 
 in staying proceedings, if it were shown that there was truly 
 another suit as to same matter depending in another 
 court, which had power to give the aggrieved party redress. 
 For other cases in the English courts, see Westlake, p. 317, 
 § 319. 
 
 The Scottish rule is stated by Lord Neaves in the case of 
 Cochrane w Paul, Dec. 2, 1857, 20 D. 178, thus :— "There 
 seems no incompetency in a creditor bringing several suits 
 against his debtor in several countries for the same debt, if 
 
548 [N'ote Y. 
 
 there is jurisdiction in all, thougli there is always an equitable 
 power and duty of control in each tribunal to see that there 
 is not on the whole an improper and oppressive accumulation 
 of litigation or diligence." In the case of Young v. Barclay, 
 27th May, 1846, 8 D, 774, where the pursuers of an action 
 raised in the Scots courts for declarator that a person had 
 had at his death a Canadian domicile, and that the pursuers 
 were entitled to his succession, proceeded upon this action 
 being defended to take steps in Canada for uplifting the 
 estate there, the Scottish courts interdicted them from 
 following out these proceedings in Canada during the 
 dependence of the suit in Scotland : this the Court had 
 power to do, all of the pursuers being domiciled in Scotland. 
 
 The decisions in France have varied. There are three 
 decisions in 1877, one on the 20th June, the other two both 
 on the 25 th July. In the first, pronounced by the Civil 
 Tribunal at Dreux in the case of Shaffauser v. Waddington, it 
 was held that a foreign suit will not interrupt French pro- 
 ceedings. The same decision was pronounced in one of the 
 other cases by the Cour de Paris in the case of Vanderzee, 
 but in the remaining case of the same date doubts were 
 expressed, and it was thought that probably it was settled 
 that in certain circumstances the plea of lis alibi pendens 
 might be sustained, even although the dependence was in a 
 foreign court. How far the French doctrine as to the 
 necessity of reviewing judgments of foreign courts upon their 
 merits before according recognition to them may influence the 
 course of decision in France on this point is not clear. 
 
 We have cited various cases touching upon the same point 
 in the notes as to bankruptcy and succession. 
 
 It may be interesting to notice shortly the plea of forum 
 non conveniens, a plea well known in the practice of the 
 Scots courts. The import of this plea is that although 
 jurisdiction exists in Scotland, the court should not exercise 
 it if they are satisfied that some other court can more con- 
 veniently settle the points at issue, although no action may 
 as yet have been taken in any other court. This plea has been 
 sustained in cases belonging to two classes, says Inglis, J. C. 
 in Clements v. Macaulay (16th March, 1866 ; 4 M'P. 592-93) 
 — viz., cases in which executors have been called to account, 
 
^ofeY, §123.] 549 
 
 and in cases arising out of the terms of copartneries. The 
 court has regard to the interest of the parties generally. But 
 this rule must not be stretched so as to interfere with the 
 maxim by which the judge, who is competent to decide a case, 
 must give the suitor the justice he asks, Judex tenetur 
 impertiri judicium suum. 
 
 The competency of using arrestments in one country in 
 connection with actions depending or about to be raised in 
 another, is discussed elsewhere, see pp. 536-37, 539. 
 
 IV. Means by which the Judicial Sentence is attained, 
 AND Grounds on which it is deteemined — (Proof 
 — Onus Prohandi — Presumptions). 
 
 §123. 
 
 The lex fori, as we have already shown, determines the 
 manner in which the facts and circumstances which serve to 
 establish and to support the opposing claims of parties must 
 be laid before the court. 
 
 The grounds which determine the judicial sentence are of 
 a two-fold character. In the first place we have to deal with 
 the legal consequences of the alleged facts, and in the second 
 place with the proof of them. The former belong to the 
 region of material private law, but the latter — i.e., the force 
 of the .evidence adduced, and the question as to what facts 
 must be held as established until sufficient proof is brought 
 against them (Presumptions and Onus Prohandi), belongs to 
 the law of procedure, and is dependent solely upon the 
 system of law which regulates the tribunal before which the 
 case depends.^ 
 
 1 See sup>-a, § 26, and P.Voet, x. § 8 ; Bouhier, chap. 21, Nos. 205-06 ; Hert, 
 iv. 67 ; Hoinmel, Rhaps. ii. obs. 409, No. 10 ; Reinhardt, Erganzungen zu 
 Gliick's Pandekten, i. 1, pp. 32-.3 ; Mitterniiiier,ini Archiv. f. d. Civil Praxis,13, 
 pp. 300-16 ; Gunther, p. 743-44 ; Kori, iii. p. 12 ; Linde, Lehrbuch des Civil 
 Proc. § 41, note 6 ; Walter, D. Privatr. § 44 ; Oppenheim, p. 377 ; Schaffner, 
 p. 205 ; linger, p. 209, note 193 ; Purge, i. p. 24 ; Wheaton, § 94, p. 125 ; 
 Story, § 6356 ; Judgment of Supreme Court of Appeal at Wiesbaden, 20th 
 May, 1851 (Seuffert, xi. pp. 451-52) ; of the Supreme Court at Berlin, 3rd May, 
 
550 [§ 123. 
 
 But, according to tlie view of many authors, the competency 
 of a particular mode of proof— e.gr., the question whether a 
 legal transaction can be proved by witnesses or by document- 
 ary evidence alone, is to be determined, not by the law of 
 the place where the court is situated, but by that of the place 
 where the transaction was concluded, since these are questions 
 about litis decisoria and not about litis ordinatoria? This 
 view rests upon a false extension of a principle which is in 
 itself sound. It is, for instance, no uncommon thing, as we 
 have already noticed, for rules of law which have to do with 
 material private rights to be clothed with the form of rules of 
 procedure (cf. supra, § 116, note 2). This is the case when 
 a law prescribes that a particular legal transaction shall only • 
 be susceptible of proof by written evidence or some public 
 certificate, or a large number of witnesses, or by witnesses with 
 some special qualification, or by a document furnished with a 
 statutory stamp, whereas as a general rule other means of 
 proof are admissible. The meaning of such an enactment is : 
 a legal transaction of the kind in question which is not 
 established by the necessary documents, or by the witnesses 
 required, shall not be capable of being founded on in an 
 action, or urged as a plea in defence in any other way than by 
 being adrpitted by the opposite party, or unless there shall be 
 a fiction of such admission under certain conditions.^ The 
 incomplete invalidity of the transaction is in some measure of 
 
 1845 (Decisions, vol. xi. p. 375) ; of the Supreme Cinirt at Stuttgart, 7th Dee. 
 1830 (Seuffert, viii. p. 312), 13th June, 1833, and 25th Sept. 1858 (Seuffert, 
 viii. pp. 257-58) ; of the Supreme Court of Appeal at Darmstadt of 11th May, 
 1856 (Seuffert, xi. p. 302) ; opinion of the Dean of the Faculty of Advocates 
 in Scotland in the Decisions of the Supreme Court at Berlin, vol. xxix. p. 383, 
 note ; Judgment of that Court there quoted. 
 
 2 BaldUbald, in L. 1, C. de S. Trin. No. 94 ; Molinjsus, in L. 1, C. de S. Trin.; 
 Mascardus, Concl. vi. Nos. 198-99 ; Christianseus, Decis. i. deois. 283, No. 14 ; 
 BouUenois, ii. p. 459 ; Pardessus, No. 1490 ; Mass6, No. 274 ; Foelix,. i. § 
 233, p. 452 ; Heffter, § 39, iii. 
 
 ' If, in spite of the omission of the form, a reference to oath is admissible as 
 by the provisions of the Code Civil, arts. 1341 and 1358, the defender, if he 
 refuses to take the oath, is bound by the judgment, because of a fiction that 
 he has admitted the debt ; if he refers it, he is also bound, because he has 
 admitted it, subject to the oath of the pursuer. To a different effect, too, 
 judgments of the Supreme Court at Stuttgart, 25th Sept. 1858, and 11th 
 June, 1533 (Seuffert, xiii. pp. 257-58). 
 
§ 123.] 551 
 
 the same kind as in the case of a transaction which will 
 not found an action, but with regard to which no claim for 
 repetition will lie, if in spite of the defective form both parties 
 have acted upon it. It differs, however, from such a case in 
 this respect, that while a transaction which cannot com- 
 petently found an action may be pleaded in defence, on the 
 other hand, even if it be admitted by the opposite party, it 
 never can have the effect of carrying with it a judgment in 
 favour of the pursuers. 
 
 It is plain that in such a case the question is not one as to 
 the weight of evidence in the true sense, — i.e., as to whether 
 the judge is persuaded of the truth of the alleged facts by the 
 materials laid before him, — but is rather one as to the form 
 of the transaction and the consequences that attach to the 
 neglect of that form. This is obvious from the fact that 
 failing an admission by the defender, the pursuer must lose 
 his action, even although far stronger evidence than that 
 which is required should be tendered — e.g., instead of a private 
 manuscript, ten witnesses* who with one voice speak to the 
 agreement of the parties. 
 
 We must not, however, confuse a limitation of evidence for 
 particular cases such as this with the question whether 
 evidence is sufficient to persuade the judge of the truth of 
 facts that may be in question. 
 
 The qualifications of documentary witnesses, and their 
 number, are to be determined by the lex loci actus ; unless, 
 
 * The provisions of the Code Civil in reference to this subject seem to me 
 to be quite distinct ; for by art. 1348, 4, if the transaction is once embodied 
 in a proper documentary form, but the document is lost by accident, proof in 
 the ordinary form may be adduced. Burge concedes that as an exception the 
 lex loci contractus should determine whether written evidence is necessary, 
 and Story, § 636, proposes that testaments should be proved according to the 
 lex loci actus, a theory which is explained by the fact that the English law 
 speaks of the proving of a testament, and not of its forms, even when it is 
 dealing with the regulations as to the latter. (This is consistent with the 
 peculiar procedure in ecclesiastical courts as to dispositions mortis causa. Cf. 
 Foelix, i. p. 445, note 3.) The "motif" of the Draft Commercial Code for 
 Wiirtemberg (p. 766) remarks : " The law of the place where the act was done 
 determines questions as to the competency of proof in any legal transaction. 
 If the foreign law prescribes no writing, then all means of proof known to the 
 law of the procedure must be admitted, but no others, since the law of the 
 procedure is part of public law." 
 
552 [§ 123. 
 
 besides the form wMcli that law requires, it may be compe- 
 tent to observe the form which is prescribed by some other 
 system of law under which the legal transaction falls, or 
 unless it shall be necessary to observe some other form (cf. 
 supra, § 36) ; but it is the law of the court where the pro- 
 cess depends that must decide as to the credibihty and 
 competency of other witnesses.^ Koman law presents an 
 analogy : there seven witnesses are required for a private 
 testament ; but it is competent (according to the correct 
 view) to prove the testament by means of two.^ 
 
 By the principle of the equality of foreigners and natives 
 in the eye of the law we find that, in so far as the contrary is 
 not expressly enacted, the former are as capable as the latter 
 of being documentary witnesses/ (The provisions of the 
 Roman law to a different effect, by which none but a Civis 
 Romanus can be a documentary witness, rest upon the in- 
 equality of Romans and strangers in the eye of the law at 
 that time). 
 
 It is obvious that it follows directly from what has been 
 already said that the onus probandi must be settled by the 
 law of the place where the suit depends.* 
 
 Presumptions, however, which relate solely to special legal 
 relations, imply some regulation of material rights. A pre- 
 sumption of that kind implies substantially a provision that 
 the legal consequences which are appropriated to some other 
 condition of facts are to be attached to the facts presented in 
 this particular case ; the result is that the state of facts 
 which really exists is rejected as being inconsistent with those 
 which are necessary to support the legal conclusion. If, for 
 instance, there is, in relation to a claim of succession, a pre- 
 sumption that B survived A, that implies that, as far as 
 regards this claim, the true state of facts — viz., that both died 
 
 ' Foelix, i. § 235, p. 458, allows the lex loci actus to rule generally ; and so, 
 too, Demangeat and Pardessus, No. 1490 ; Mass^, No. 275, and Bcliaffner, 
 pp. 205-06, take the opposite view. As regards the credibility of witnesses, see 
 the opinion of the Dean of the Faculty of Advocates quoted above. 
 
 8 L. 1, § 3, D. 28, 4. 
 
 ' To a different effect, Mass^, p. 32 ; Gand, No. 154, who considers the 
 duty of a documentary witness as a kind of public function. 
 
 ^ JudiJment of the Supreme Court of Appeal at Liibeck, 30th Dec. 1859 
 (Seuffert, xiv. p. 245). 
 
§ 123.] 553 
 
 simultaneously — must have the legal consequence attached to 
 it which belongs to the case of B's survivance ; this latter 
 condition of facts cannot, ex hypothesi, be capable of being 
 shown to be the true state of fact.^ 
 
 Lastly, it is quite competent, in so far as the subject is at 
 the uncontrolled disposal of the parties, for them to agree by 
 anticipation to declare that certain specified kinds of evidence 
 shall be sufficient, or to exclude aU evidence except some 
 specified kind to contradict a legal transaction constituted in 
 a particular form.-^" It needs no argument to show that it is 
 not the lex fori, but the law to which the contract in itself is 
 subject, which must determine whether this has been done in 
 a valid way or not. Here, too, it is not so much the convic- 
 tion of the judge that the alleged facts are true that is at 
 issue, as the rights of the parties arising out of the contract, 
 just as when one party in a process agrees to hold some 
 evidence tendered by the other side as adduced, or refuses to 
 admit the competency of some counter proof which has been 
 tendered. 
 
 The lex fori, again, as a ■ general rule, will determine the 
 value of business books as evidence.^^ If, however, the law 
 
 " Foelix, i. § 237, p. 460, applies the lex loci contractus in the case of presump- 
 tions whicli relate to contracts. So, too, judgments of the Supreme Court at 
 Beilin,26th Sept. 1849 (Dec. vol. xviii. p. 146), and 17th Oct. 1854 (Striethorst, 
 15, § 123). Both judgments deal with a presumption in horse-dealing exist- 
 ing at the place of contract. In the latter it is said : — "By common law, 
 presumptions are not mere rules of procedure, but imply principles of material 
 law." ( f . such presumptions as those of the Code Civil, art. 1402 : — "Tout 
 immeuble est repvtd acquit de communauti, s'il rCesl prouvi que I'un des dpoux 
 en avail la propriete ou possession legale anterieurewent au rn.ariage ou qu'il 
 est ichu depuis h titre de succession ou donation." Here the mutual rights of 
 the spouses and of the creditor to the property which is in the possession of 
 the spouses are fixed. 
 
 '" Cf. Code Civil, art. 1341. The words, "iln'est recu aucunepreuve par 
 timoins centre et outre le contenu aux actes" simply provide, in my view, that 
 in order to abrogate or alter contracts executed in writing or recorded in a 
 register, the same rules shall apply as regulate their execution. Cf. Foelix, i. 
 § 234, p. 457. 
 
 " Judgment of the Supreme Court at Berlin, 3rd May, 1845 (Decisions, iL 
 p. 375) ; Judgment of the Supreme Court of Appeal at Darmstadt, 13th May, 
 1856 (Seuffert, xi. 303). [Extracts from business books njade and authenti- 
 cated according to the law of the place where the extract is n)ade will make 
 faith in Russia (Cluile v. Eoubleff, 13th Jan. 1877, Senate of Moscow).] 
 
554 [^ 123, 124. 
 
 under wWch the contract which these books are adduced to 
 proYC stands, gives them greater weight in evidence, the 
 parties must allow the courts of a foreign country to give 
 them the same weight ; and if there is no common law for 
 the contract (e.g., when it is concluded by letter), the law of 
 the domicile of the pursuer or defender, according as this or 
 that may be the more favourable to the defender, takes the 
 place of the lex loci contractus.^^ According to the opinions 
 of several writers and the judgments of several courts, the lex 
 fori alone determines the weight of business books as evi- 
 denced^ ; in the view of others, the lex loci contractus will 
 settle it." I believe that by the intermediate view taken 
 above I have made it possible to solve the controversy. 
 
 We have already discussed the exceptio non numeratce 
 pecunicB,^^ the effect of which in international law must also 
 be determined according to the principles of evidence upon 
 matters of contract. 
 
 Demands foe Information on the Subject-matter 
 OF AN Action. 
 
 § 124. 
 
 According to a usage among nations, which is universally 
 recognised, the courts of one country will carry out com- 
 missions of investigation (Commissions rogatoires, literce 
 mutui compassus sive requisitoriales) for the purpose of 
 informing ^ the courts of another country upon suits depend- 
 
 ■■2 As to the latter case, cf. what is said above on the law of obligations, 
 §73. 
 
 1= Mittermaier, as last cited ; Schaffner, p. 206 ; Unger, p. 209 ; Walter, 
 § 44 ; judgment of the Supreme Court of Appeal at Wiesbiiden, 20th May, 
 1851 (Seuffert, ii. pp. 451-52) ; Supreme Court of Appeal at Darmstadt, 13th 
 May, 1850 (Seuffert, ii. p. 302). 
 
 1* Jason Mayerus in L. 1, C. de S. Trin. No. 23 ; Mass6, No. 272 ; Par- 
 dessus, No. 1490 ; Foelix, i. § 238, p. 46 ; Savigny, § 381 ; Guthrie, p. 322 ; 
 Holzschuher, i. p. 81 ; judgment of the Supreme Court of Appeal at Cassel, 
 6th Dec. 1826 (Seuffert, i. p. 135, No. 132). 
 
 15 Cf. § 77, note 3. 
 
 * See infra, § 125, as to the demands of foreign courts for power to 
 carry out diligence. 
 
§ 124.] 555 
 
 ing there, in so far as the demand for investigation does not 
 encroach upon the sovereignty of the State upon whose 
 courts the demand is made.^ The duty which Roman law 
 in later times imposed upon its courts to a certain extent, a 
 duty, therefore, which was incumbent upon the officers of one 
 and the same State to assist each other, was extended in the 
 Middle Ages,^ when all jurisdiction in every different 
 country was referred, in theory, to the same sources — viz., 
 the jurisdiction of the Emperor and the Pope, to the courts 
 of different countries ; and, although, except where treaties 
 existed, there was no complete international obligation such 
 as would justify force in the case of a refusal to comply 
 with it, no State, supposing its neighbouring State complied 
 with the obligation, could refuse to fulfil this moral obliga- 
 tion, which was absolutely essential for friendly intercourse.* 
 The judge upon whom the demand is made conducts the 
 procedure which is desired of him in the form which his own 
 law lays down as essential to secure credibility and validity,* 
 and the law of procedure in the other country must allow 
 evidence so taken full credence. Witnesses, then, for 
 instance, will not be required to subscribe their depositions, 
 if that is not required by the law of the court which takes 
 the evidence, in order to secure credibility. The court on 
 which the demand is made may, however, at the special 
 
 2 Mittermaier, Archiv. fiir die Civilirtische Praxis, 13, p. 308 ; Mass6, Nos. 
 281-82; Foelix, i. § 240, p. 463; Giinther, p. 743; J. H. Boehmer, Jus. 
 Bccl. Prot. ii. 27, § 56 : Heffter, § 39, ii. 
 
 3 Of., e.g., Bartolus, in Jj. 15, D. de re jud. 42, § 1, No. 8 ; Paulus de Ciistr. 
 ad L. ult D. de jurisdict, ii. 1. 
 
 * The point of view from which Wetzell, § 38, note 31, considers the sub- 
 ject — viz., that of mutual interest, is not adequate. Cf. Gensler, Coium. on 
 Martin's Text-book of Civil Procedure, i. p. 106. 
 
 5 Mevius, Decis. iv. decis. 238 ; Gaill, i. obs. 54, No. 4 ; Mittermaier, as 
 cited ; Seuffert, Coram, i. p. 263 ; Bouhier, chap. 28, No. 93 ; Boullenois, i. 
 p. 546 ; Mass6, Nos. 283-84 ; Pardessus, No. 1489 ; Oppenheira, p. 378 ; 
 Schaffner, p. 206; Fcelix, i. § 246 ad fin, p. 476; Linde, § 41, note 5; Wetzell, 
 § 39, note 42. The judge who mukes the demand for inquiry alone can 
 determine whether the parties shall be admitted to the process, and must 
 make the necessary notes on that point in his demand. 
 
 [Evidence taken on oath before a magistrate in Leith was allowed the same 
 weight as evidence before a German court as it would have had in Scotland, 
 Hamburg, 26th October, 1875.] 
 
556 [§ 124. 
 
 request of the court whicli makes tte demand, put in force 
 forms whicli can be observed without doing violence to any 
 absolutely prohibitory laws, or to the views of proper pro- 
 cedure which it may entertain,® and without using any 
 undue compulsitor to a person who may be summoned as a 
 witness or without laying any excessive burden upon the 
 court itself, while, of course it must always respect the forms 
 which its own law requires to give validity to testimony.^ 
 
 On the other hand, it is entirely for the court which 
 makes the demand to say what meaning is to be attached to 
 the result of any such inquiry ; and that, again, depends 
 upon its own law ; it is that court and that law that desire 
 to be informed as to the existence or non-existence of particu- 
 lar facts ; although, of course, unless the demand for 
 information shall make some particular request to a differ- 
 ent effect, the judge upon whom the demand is made, not 
 knowing foreign law as a rule, and being in no case bound 
 to recognise it, will conduct the process in the way pointed 
 out in his own law'.* 
 
 The obligation of third parties to give evidence, produce 
 legal opinions, or deliver up documents, is to be determined 
 not by the law of their domicile, since foreigners cannot, 
 in such cases, make any appeal to privileges, but by that of 
 their place of residence ; ^ the witness need only take the 
 oath which the law of his place of residence prescribes, and 
 can refuse to answer on any point on which that law does 
 not force him to reply. And, unless there be a treaty which 
 lays down a different rule, and is binding upon him as a 
 subject of one of the States in treaty, no witness can be 
 
 ^ Cf. infra, note 19. 
 
 ' Heffter, as cited. 
 
 8 As regards, for instance, general questions as to the personal circum- 
 stances of the witnesses. 
 
 [Section 334 of the Civil Processordnung provides that proof which 
 satisfies the requirements of the court in Germany is not open to any objec- 
 tion that might have been urged against it in a foreign court, by whose 
 officinls it has been taken.] 
 
 " P. Voet, X. c. un § 10 ; J. Voet, in Dig. ii. 13, § 24 ; Mitterniaier, pp. 
 310-11, proposes that the law of the native country of these persons should 
 rule, but has in view merely the ordinary case that these persons are residing 
 at the seat of their domicile. 
 
§ 124.] 557 
 
 compelled to appear before a foreign court to give evidence ; 
 for the obligations of witnesses are to be construed strictly, 
 and a journey to a foreign country cannot be treated in the 
 same way as a journey to another court in this country. An 
 exception, however, may be made to this rule in cases where 
 demands of the kind are made upon courts situated on the 
 frontier, where a journey into the other plainly does not 
 involve any greater difficulty or disadvantage to a witness 
 than a journey to any tribunal of his own country ; but, of 
 course, the witness must be kept perfectly indemnis}'^ But 
 the citation to appear before a foreign court may always be 
 refused if the witness can show that he will be compelled to 
 answer there questions which the laws of his own country 
 would excuse him from answering.^^ 
 
 The duty of litigants to give up documents is to be deter- 
 mined by the law of the court where the process depends ; 
 the question here is as to the reciprocal obligations of parties, 
 which are created by the process itself, and, as a rule, 
 involve, if not complied with, a penalty not extending beyond 
 the process — viz., the inference that liability is admitted. 
 
 In demands which refer simply to procedure for furnishing 
 information — e.g., hearing of witnesses, or inspection of some 
 place or thing — the judge upon whom the demand is made 
 needs not to inquire into the competency of the court that 
 makes the demand, but merely to satisfy himself that it is 
 within his power to undertake the duty desired of him. 
 The object of asking him to undertake that duty is the 
 ascertainment of the truth, and that can prejudice no one,'^^ 
 or imply any invasion of the jurisdiction of his own court, 
 
 ^'' This is specially important in Germany. As to practice, see Spangen- 
 berg, in Linde's Zeitschrift fiir Civilr. iii. p. 427. 
 
 11 Is the right which our own laws give to public oflScers to decline to 
 give evidence in matters connected with their duties, also to be recognised in 
 the case of the officers of a foreign Government ? In my opinion, according 
 to actual practice in reciprocity, it is, especially as it is no mere indulgence 
 of the Government, but implies an equitable respect for the obligations under 
 which the officer lies. 
 
 12 It may be incompetent by the rules of procedure to take certain proof. 
 This question is for the sole determination of the judge who makes the 
 demand, not for him upon whom it is made. Of. Wetzell, § 48, ii. 2, and 
 ii. 1 ad fin. 
 
558 [§ 124. 
 
 provided that he observes the rights of the witnesses to 
 refuse to answer incompetent questions, and provided also 
 that the parties have an interest which the law will recognise 
 to ascertain the truth. 
 
 In my view, too, the judge upon whom the demand is 
 made to serve a citation need not inquire into the com- 
 petency of the court which makes it, where the only penalty 
 upon disobedience to the decree which the court is asked to 
 serve is being put at a disadvantage in the action, and where 
 no direct diligence is intended to be used ; for if the citation 
 is disobeyed it can only put the person cited at a disadvan- 
 tage ; no notice is given him that he must and can defend 
 himself, although it is quite competent for the court making 
 the demand to enforce the penalties in the process which 
 are threatened, after such public intimation as advertisement 
 in newspapers — the penalties being such as an assumption 
 that liability is admitted, or an award of expenses. It is 
 also the case that the judge upon whom the demand is made, 
 by taking up the service of the citation, does not in any way 
 oblige himself to carry out the judgment of the foreign court 
 which is to follow.^* 
 
 Of course the judge on whom the demand is made is not 
 competent to give a judgment on the merits of the action 
 (cf. Wetzell, § 38, note 44), and just as little to give one 
 upon the obligations of the parties in matters of procedure, 
 the penalty attaching to which is to be set at a disadvantage 
 in the process ; but he may determine the rights and obliga- 
 tions of third persons whom he calls into the process — e.g., 
 the obligations of witnesses who are called, and the fees due 
 to them ; while he is not called upon to decide the rights of 
 parties to take exception to a witness. 
 
 1' Cf. Gesterding, Ausbeute von Kaohforschungen iiber verschiedene 
 Eechtsmaterien, ch. ii. p.325; Poelix, i. § 242, p. 464 (Wetzell, § 38, p. 326, is of 
 a different opinion); Leonhardt, vol. ii., on the 29th section of the Hanover- 
 ■ ian Ordinance on Procedure. The service of the citation, in so far as it 
 threatens mere disadvantages in the process, is simply a communication of a 
 proclamation of the court of procedure, and an undertaking to make this 
 proclamation publicly known. The form of citation, but not the length 
 of the inducm, depends upon the law of the judge who carries out the 
 demand. 
 
§ 124.J 559 
 
 Some older jurists ^* maintain that a judge can cause one 
 wlio belongs to his jurisdiction (subditum) to be cited even 
 within the jurisdiction of a foreign court. This cannot, how- 
 ever, be reconciled with the notion which now prevails of 
 territoriality, in so far as any direct compulsion or diligence is 
 contemplated against a person resident abroad or his property 
 situated there /^ in so far, however, as the question is one as 
 to the authentication of the citation, it is repugnant to the 
 rule recognised in nearly all the States upon the continent of 
 Europe, that officials, and, therefore, messengers, of courts only 
 enjoy publica fides in the district which their own Government 
 has assigned to them^^ — a rule which could not be abrogated 
 by any Legislature without the greatest danger, looking to 
 the want of personal knowledge of the officer in any foreign 
 country. 
 
 It has been specially a subject of doubt, under what forms 
 the judge who makes the investigation must take the sworn 
 testimony. 
 
 It is clear that witnesses and experts can only be required 
 to take the oath in the forms sanctioned by the law of their 
 place of residence ; they are not, as a general rule, bound by 
 the law of the place where the suit depends. 
 
 To tender an oath of reference is, however, simply to pro- 
 pose that parties should agree, in a way that admits of execu- 
 tion following on the agreement, that if the oath is refused 
 the party should be held confessed, and in that case, no 
 doubt, it may be matter of question whether the defender is 
 bound to be sworn according to the forms of the place where 
 the suit depends, or whether it will be enough to observe the 
 forms in use at the place where he resides. In my view the 
 latter is correct ; the essence of an oath is a solemn obliga- 
 
 1* Mevius, Decisions, ii. 390 ; Colerus. Process Exec. iii. c. 7. 
 
 1^ See infra, next page, as to English procedure. 
 
 1* In this way we refute the view of Wetzell, § 38, note 22, that the service 
 of judicial decrees on any party can be validly effected by an officer of court 
 even in a foreign jurisdiction, if the person upon whom it is to be served 
 receives the decree, because the sole question is as to the proof that is required 
 of the service of the document. Gail], x. 56, c. 3, 4, upon whom Wetzell 
 founds, expresses himself rather indistinctly, and is probably thinking of 
 public citations. 
 
560 [§ 124. 
 
 tion laid upon the conscience before a competent tribunal ; " 
 everything else is merely a form which is subject to the rule 
 loous regit actum,}^ Indeed, if we were to require a man 
 to take an oath at the place where he resides in a form which 
 would seem according to the views held there to imply an 
 inadmissible rejection of the personal credibility of the 
 deponent, — if, e.g., we were to require a caution by some 
 ecclesiastic, a form not in use in that country, — the judge would 
 have to repel any such deinand as being an imposture. Still 
 less can there be any idea that the judge who makes the 
 inquiry should allow the oath to be taken under forms which 
 are at variance with the law which he must recognise (see 
 note 1 8), or which as a matter of fact he cannot apply.-'® If, 
 then, the person referring the case desires that this oath should 
 be expressly given under forms (e.g., an appeal to God and the 
 Testament — a form not recognised in France), which on the 
 principles stated are not inadmissible, the person taking the 
 oath must swear according to these forms if he is to escape 
 the penalties which the court where the suit depends attaches 
 to refusal, and the court conducting the inquiry can make no 
 objection to the proposal.^" 
 
 As Foelix tells us, the courts of England and North 
 America do not employ these forms of demand for informa- 
 
 " Cf. Demangeat, on Foelix, i. p. 482, note a. See, also, the judgment 
 there cited of the Court of Cassation at Paris on 3rd March, 1846, and the 
 judgment of the Supreme Court of Appeal at Dresden, 1st October, 1858 
 (Seuffert xiii. p. 84). The judgments of the Supreme Court of Appeal at 
 Cassel of 22nd December, 1841, and 28th September, 1853 (Heuser, Annalen, 
 4, pp. 235-36) lay down that the form of an oath which a foreign court is 
 requested by the courts of this country to take is regulated by the law of this 
 country to such an extent that the appeal to God required by that law can- 
 not be omitted. (The question was as to the French form of oath " Je le 
 jv/re.") 
 
 18 The judge conducting the inquiry must always observe the forms required 
 by his own law ; for laws as to oaths rest directly upon grounds of morality. 
 
 " Of. the judgment of the Tribunal of the Seine, 29th October, 1829 ; 
 Foelix, i. p. 480. 
 
 20 The Tribunal of the Seine by an arrU of 9th August, 1833, ordained that 
 a party resident in France might, on the demand of the Court of Appeal at 
 Brussels, take the oath with an invocation of God and the saints ; Foelix, i. 
 p. 482. See, too, Mass^, No. 289, and the judgment of the Supreme Court 
 of Appeal at Jena, 18th May, 1850 (Seuffert, xii. p. 427). 
 
§§ 124, 125.] 561 
 
 tion ; tlie court grants commission to one or more judges, or 
 even to a private person residing in the foreign country, to 
 collect the necessary information. It is obvious that such a 
 commissioner can never use diligence to compel the attendance 
 of witnesses and experts, although the credit to he attached to 
 the proceedings taking place before him must be determined 
 by the law and the discretion of the court where the suit 
 depends. If the execution of the commission does not trans- 
 gress regulations of poHce,^^ the commissioner will be as free as 
 any other private person to examine witnesses and conduct 
 investigations. After what we have said it needs no discussion 
 to show that such demands for inquiry in matters of volun- 
 tary jurisdiction are quite permissible, if the court to which 
 the application is made is not forced to regard the proceed- 
 ings of the other court as an invasion of its own jurisdiction. 
 
 V. Final Judgment ^ ; its Binding Effect and the 
 Method of its Execution.^ 
 
 § 125. 
 
 The jurists of the Middle Ages* had, even at that date, 
 taken as a subject for discussion the force and the execution 
 of the judgments of the courts of another territory. In con- 
 ducting that discussion they applied, — without any hesitation, 
 and without having regard to the different conditions of the 
 courts of the Eoman Empire, which were the courts of one 
 
 21 I. No. 421. 
 
 22 In Hanover, for instance, where no private person can administer an 
 oath, a commissioner could not do so. 
 
 1 The judgments pronounced in bankruptcy procedure have, in part at 
 least, not the same character as the final judgment in a suit. See below. 
 
 2 In this paragraph, when we speak of foreign judgments or the judgments 
 of foreign courts, it is to be understood that the term does not include the 
 judgments of such judicial bodies as are specially established by our State in 
 any foreign country by virtue of public treaties. The judgments pronounced 
 by a consul of our country in its name abroad are judgments of this country, 
 and must be recognised as such. Demangeat, on Foelix, ii. p. 40, note. 
 
 3 Baldus Ubald, in L. 1, C. de.S. Trin. No. 93 ; Barthol. de Saliceto, in L. 1, 
 C. de S. Trin. No. 14. 
 
 20 
 
562 [§ 125. 
 
 undivided State, — passages of Eoman law, whereby judges are 
 bound to support each the other's authority, to the case of 
 the courts of different States ; in this course they were not 
 wholly without some excuse,* siace, in theory at least, up to 
 the beginning of the second half of the Middle Ages, all juris- 
 diction was in the last resort traced up either to the Emperor 
 or the Pope, and it was thought to be the duty of the 
 brachium seculare, as well as of the judicatories of the 
 Church, to support each other. ^ 
 
 But when, as the territorial supremacy of different States 
 was fully developed in later times, these authorities were seen 
 to be inapplicable, the earlier practice which had obtained in 
 the States of the continent of Europe was not without im- 
 portance. No doubt, it was assumed that in strict law no 
 State could be bound to recognise, still less to carry into 
 execution, the judgments pronounced by the courts of other 
 countries ; but it was said that they were in use so to be 
 recognised and put in execution oh reciprocam xdilitateim et 
 ex comitate^ provided that the court recognising them was 
 competent, and the interests of the country to which it 
 belonged — or, as it was more commonly expressed, the interests 
 of the subjects of that country — were not impaired by the 
 recognition or execution. The older writers, however, do 
 not lay it down quite distinctly when such exceptions would 
 occur. 
 
 Many more modern authorities, on the other hand, attempt 
 to derive the recognition of judicial sentences from purely 
 juristic sources, and put out of sight the comitas and the 
 mutual benefits. Some rank a process as a contract ; the 
 judgment resting upon this quasi-contract they propose to 
 
 * Baldus Ubald, cod. No. 20 ; Barthol. de Saliceto, cod. No. 3. 
 
 ' Cf. Wetzell, § 38, note 31, and the authors and passages from the Canon 
 Law there cited. 
 
 6 P. Voet, de Stat. x. c. 14 ; Huber, § 6 ; J. Voet, de Stat. § 7. When 
 the German Empire existed, the courts of the various territories could, under 
 certain circumstances, be forced to recognise and to assist each other. This 
 compulsitor, resting as it did on the subordination of the sovereigns to the 
 authority of the Empire, has, in the present time, disappeared. Mittermaier, 
 Arphiv. fiir Civil Praxis, vol. xiv. p. 84. Cf. Spangenberg, in Linde's Gert- 
 schrift fiir Civilr. and Process, iii. p. 423 ; Haas, de Effectu. § 12 ; Strippel- 
 man, ii. 1, p. 1. 
 
§ 125.] 563 
 
 recognise in the same way as a contract concluded in foreign 
 territory.^ 
 
 But, although a process might be regarded as a contract 
 under older Roman law, in which the parties by an obligation 
 bound themselves formally to recognise the judgment, and 
 although, too, the effect of a process once instituted, and of 
 the judgment might even in later Roman law be referred to a 
 quasi-contract, yet this contract owes its origin to a compul- 
 sitor which the State permits to be used against the defender: 
 it is to the authority of the State that the validity of the 
 process and of the judgment are in the last resource to be 
 referred* ; and it is plain that, in the procedure of modem 
 times, where, if the defender refuses to appear, he is held by 
 a fiction to have become a party to the suit, the theory of 
 an agreement ex contractu can only apply if the parties recog- 
 nise the jurisdiction of some particular court by a real 
 agreement and no mere fiction. 
 
 Others have sought a foundation for the recognition of 
 foreign judgments in the assertion that any other procedure 
 would imply an invasion of the jurisdiction of the foreign 
 State. ^ It may, however, be said, in reply to this, that to 
 refuse to recognise a judgment pronounced abroad does not 
 do away with it, but merely confines its operation to the 
 territory of its own State, and that we can assign no exact 
 limit to the jurisdiction belonging to the different States, 
 since it is not every judgment pronounced in a foreign country 
 that will be unconditionally recognised by another.^" The 
 
 ' Kliiber, Europaisches Volkersecht, 2nd Ed. § 59, pp. 75-6 ; Oppenheim, 
 p. 375. 
 
 8 Of. Foelix, ii. No. 318. 
 
 ' Vattel, ii. § 350. Of. too, Puffendorf, Observat. Juris Univers. i. observ. 
 28, § 8 adfi,n. 
 
 1" Tbe way in which Kamptz (Beitrage zum Staatr.-und-Volkerrecht, vol. 
 i. pp. 115-36, Berlin, 1815) tries to find a foundation for the recognition and 
 execution of the judgments of foreign courts is quite peculiar. The grounds 
 he adduces — that the judgment makes a ^us qucesitum, that it constitutes a 
 formal leo'al procedure to which the rule locus regit actvm, must apply, and 
 that the parties have subjected themselves to the judgment — rest, however, 
 on a petitio principii. K. S. Zacharia (Crome und Jaup. Germanien, vol. 
 ii. p. 229) sets up two points of view : 1st, that of private international law, 
 according to which nations stand in their natural relations to each other and 
 
564 [§ 125. 
 
 majority of modern authors adhere therefore to the view that 
 comitas and the common interest of nations are the grounds 
 of the recognition and of the execution of foreign judg- 
 ments.^^ 
 
 In accordance with the principles set forth already (§ 116) 
 as to the nature of the judicial judgment, — viz., a lex 
 specialis ruling some particular legal relation, — I must 
 refer the recognition of foreign judgments pronounced 
 in accordance with foreign law to the same grounds as 
 those upon which we recognise foreign laws themselves. 
 The admissibihty of such a recognition rests upon the basis 
 of friendly intercourse ; but no State that desires to remain 
 in such intercourse is in a position to exclude the application 
 of foreign laws at its pleasure. Many authorities take a less 
 strict view of this duty of recognising the judgments of 
 foreign courts, a duty arising in their view from comitas, and 
 make capricious exceptions to it to the advantage of their 
 own countrymen.^^ French practice ^^ does not recognise at 
 
 recognise no overlord ; 2nd, the point of view of public inteinational law, 
 according to which the different States are members of an international body 
 under a common law. According to the former, which he describes as being 
 at present the practical point of view, a foreign judgment will not be recog- 
 nised ; it can only be carried out in some exceptional cases on the basis of the 
 principles which regulate agreements and compromises ; or the subjects of 
 it State must have had procedure taken against them in a foreign State 
 according to their own law ; or the judgment must be a deliverance upon some 
 act that has taken place in the foreign State. According to the second 
 theory, foreign judgments most be recognised unconditionally. See supra, 
 § 23, as to the possibility of founding the recognition on the theory of a vested 
 right to be protected in all countries, a theory to which Wetzell attaches him- 
 self, § 38, note 30, and Haas, de Effectu, takes as his leading principle. 
 
 " Mass6, No. 298 ; Martens, § 94 ; Burge, iii. p. 1050 ; Wheaton, § 147, 
 p. 195. 
 
 « Foelix, ii. p. 66, § 344. 
 
 13 French practice rests upon the 121st article of the Royal Ordinance of 
 16th June, 1629, and articles 2123, 2128 of the Code Civil : " L'hypotMque 
 jvdieiai're risulU des jugements . . . Vhypotheque ne pent . . . rdsulter des 
 jvgements rendus en pays Strangers, qu'autant qu'ils ont M declares dxicutoires 
 par v,n tribunal frangaisy sans prejudice des dispositions qui pewomt Ure 
 dam les his politiques ou dans les traitisj" likewise in the 546th article of 
 the Code de Procedure : " Les jugements rendus par les tribunaux Strangers et 
 les aetes recus par des officiers Strangers, ne seront susceptibles d^&cicution en 
 France, qw de la maniere et dans les cas prdvus par les articles 2123 et 2128 
 dn Code NapoUon." Some French authors take the view that these provisions 
 
§ 125.] 565 
 
 all tlie judgments of foreign courts, but admits the proceed- 
 ings on which the judgment has followed to be received as 
 evidence in any process which may be raised by the party 
 against whom judgment has gone to resist execution ;^* and 
 in Spanish practice the judgment of a foreign court is not 
 entitled to any respect :^^ these are all explained by the 
 neglect, on the one hand, to observe the distinction that 
 exists between recognising the validity of a judgment and 
 carrying it into execution — on the other hand by the fact 
 that the judgment rests directly" upon a determination of 
 
 merely prevent the recognition of foreign judgments which are to the preju- 
 dice of French subjects, whereas in the case of other judgments to the 
 prejudice of foreigners, the French courts, in order to decide whether it is 
 admissible to put the decree in execution, only require to ask whether the 
 judgment is at variance with the jus publicum, and implies an invasion of 
 French sovereignty. By another view, which rules the practice, the person 
 against whom judgment has gone may require a fresh investigation of the 
 whole matter in the French courts. 
 
 " Foelix, ii. § 369 ; Em6rigon, Traits des Assur. chap. 4, sect. 8, § 2 ; 
 PardessHs, No. 1488. 
 
 ^ Foelix, § 398. The procedure is the same in Sweden, Norway, and 
 Russia. Foelix, ii. §§ 400-02. 
 
 ^' See specially to this effect a judgment of the Ehine Senate of the 
 Supreme Court at Berlin, 12th October, 1858 (Striethorst, xxx. p. 300, especi- 
 ally p. 311). This judgment refuses to lay any weight upon the fact that the 
 previous judgment pronounced by the foreign court proceeded upon an oath 
 of reference, "as the oath had not in itself the character of a voluntary 
 arrangement, and was all the less entitled as an element in the foreign process 
 to carry any greater weight with it than this process itself, in respect it was 
 only tendered in the end of the day, the judge of this country is of opinion 
 that the documents produced, upon which the case is principally rested, are 
 sufficient to complete the evidence in the case." In this view I cannot con- 
 cur. The oath of reference is, according to the common law of Germany, in 
 so far at least as the person referring is concerned, quite a voluntary trans- 
 action, whatever the position of the other party may be : the transaction does 
 not become involuntary because the person referring would lose his case 
 before the judge of this country if he did not tender the oath to his opponent. 
 If he proposes to assail this judgment subsequently in a foreign court, he 
 need care nothing for the rules of process here. The opposite view tends to 
 expose oaths to a want of respect that is highly dangerous. The mistake of 
 the view that isolated steps of process can never have a greater influence 
 than the process itself, to the effect here in question, can be clearly and 
 precisely demonstrated by a comparison of some modern regulations as to 
 procedure. See, e.g., the Biirgerliche Frocessordnung of 1850 in Hanover, 
 §444. 
 
566 [§ 125. 
 
 an officer of the State, while other rights cannot, as it 
 is argued, be constituted without a reference to the will of 
 the parties. 
 
 In the first place, the recognition of the validity of the 
 judgment, and therefore the effect of the exceptio, and in the 
 same way the replicatio rei judicatce, are different from execu- 
 tion of the judgment by diligence, in this respect that the 
 latter requires a commission to be given by a magistrate to 
 the officer who is to do diligence, and none but a magistrate 
 of the country where diligence is to be done can give such a 
 commission, and therefore before any judgment of a foreign 
 court can be executed, it requires a declarator from the judge 
 of this country that it may be carried out.^^ The recognition 
 of the import of a judgment has been erroneously supposed 
 to need the same formalities as the execution.^® 
 
 In the second place, the acquisition of all rights is finally 
 dependent upon the will of the supreme magistrate of the 
 State : every right rests upon the law in so far as the law 
 can create or destroy it ; the law in its turn rests upon the 
 deliverance of the authority of the State. If, then, the 
 application of foreign laws is permissible, it cannot be a good 
 objection to the recognition of judgments of a foreign court 
 that the question here is as to a deliverance of the supreme 
 authority of the State, which can have no effect in another 
 country. 
 
 But now we come to the difficulties which surround the 
 attempt to fix the conditions under which a foreign judgment 
 is to be recognised. For to recognise it unconditionally would 
 in fact be to allow the foreign State an unlimited influence 
 over legal relations in our country, and to give rise to dangers 
 which would be all the greater in respect that the legal 
 systems of many countries stretch their regulations as to the 
 competency of their courts to the prejudice of foreigners. By 
 far the greater number of authors and the practice of most 
 countries in which foreign judgments are recognised at all, 
 require in the first place, at least in so far as the execution of 
 diligence is concerned, reciprocity. The practice of England, 
 
 " Of. Foelix, ii. §§ 320, 351. 
 
 " See, on the other hand, Wheaton, § 147, p. 195. 
 
§ 125.] 567 
 
 Scotland, and the United States, is the sole exception to the 
 rule.^* 
 
 In my view the non-recognition of foreign judgments is to 
 be justified as a measure of retaliation, and it is therefore the 
 Government, and not the court, that must regulate it. But 
 since no measure of retaliation has any further object than 
 the advantage of its own subjects, it would not fall to be 
 applied if a foreign judgment had found for one of our sub- 
 jects against the subject of the State in question, and they 
 declare themselves either expressly or by implication content 
 with that, which has become known to them. We shall see 
 that the non-recognition of foreign judgments is calculated to 
 produce the greatest uncertainty in the rights even of the 
 subjects of the State that refuses it, and therefore in my view 
 the retaliation would have to be confined to a denial of the 
 means of doing diligence. 
 
 The judgment, then, all are agreed, must be pronounced 
 by a competent court. But what principles wiU serve to 
 determine the competency of the court ? 
 
 According to one view it is sufficient ^° that the judge who 
 pronounces judgment is competent by his own law. But this 
 is simply to place in the hands of the foreign legislator the 
 power of invading ^ each and every legal relation that exists 
 in our land by regulations as to the competency of his own 
 courts. This theory has found but few supporters ; it cannot 
 be reconciled with the independence and unity of different 
 States. 
 
 In another view, the court from which the judgment 
 issues must be competent both by its own law and the law of 
 the other State concerned ; ^^ for one State cannot refuse to 
 
 ^ Cf. Foelix, ii. § 328. It does not, however, constitute a ground of obliga- 
 tion for our State, if another State carries the judgments of our Courts into 
 execution (Merlin, E6p. Jugement, § 14). Government may, however, refuse 
 to recognise foreign judgments, if for instance the courts of that other State 
 do not present the necessary guarantees of regular procedure (infra, pp. 587 
 et seq.). 
 
 ^ Kori, Erorterungen, iii. p. 12. 
 
 ^ See, on the other hand, Wachter, i. p. 308, and Feuerbach, in his Themis 
 or Contributions to Legislation, Landshut, 1812, pp. 97-8. 
 
 2^ Feuerbach, p. 94 ; Wachter, ii. p. 418. The Eoyal Ordinance of Bavaria 
 of 2nd June, 1811, proceeded on the same principles (Feuerbach, p. 128). 
 
568 [§ 125. 
 
 another what it allows in its own case. It may, however, be 
 asked, whether there are not many rules of jurisdiction which 
 were intended by our lawgiver to apply merely to the relations 
 of the different courts of his own country, and whether we 
 must not refuse to recognise in this country other rules of 
 jurisdiction, which favour the native of the country where 
 they are in use, when they come to be applied in that coun- 
 try to the relations between our countrjonen and the natives. 
 To satisfy this theory both of these questions must be 
 answered in the negative ; but that has not been shown, and 
 hardly could be shown, to be the true answer.^* 
 
 We have already established the principles that regulate 
 the competency of courts in private international law. It 
 follows necessarily that the judgments of competent courts 
 abroad must be recognised.^* For to refuse recognition in 
 such a case would simply be to drag before our courts an 
 action which the sense of our law excludes from them, and 
 assigns to the competent court of the foreign country ; and 
 there is as little foundation for the objection that a recogni^ 
 tion of foreign judgments injures our State, as for the asser- 
 tion that it would be consistent with the sovereignty of one 
 State that it should refuse unconditionally to apply the law 
 of any foreign State. Besides that there is no need of a 
 special declaration by the magistracy of this country to mark 
 the recognition of the import of the judgment : the whole 
 question in dispute is settled by the court whose decision we 
 recognise, and we cannot at the same time hold the view that 
 it requires a special act of the executive power of the State to 
 give effect to this settlement. We might as well say that 
 wjiile we recognise the acquisition of property by foreigners 
 
 ^' The Drafts for the States of the Gennan Band start from the assumption 
 that rules as to the competency of the courts of one cpuntry are not to be 
 unconditionally carried over and applied to those of another country. They 
 come pretty nearly to the result reached in' the text, although they do not 
 proceed on any special moving principle, and are always in correspondence 
 with the special kinds of jurisdiction which are found in Germany. 
 
 ^ The sentence of the competent court on the merits of the case is to be 
 recognised for the prestations involved in it, and especially for payment of 
 expenses. The Supreme Court of Appeal at Wiesbaden recognised this (of. 
 Nahmer, ii. p. 303). 
 
§ 125.] 569 
 
 in their own domicile we must require a special privilegiv/m 
 for each case of acquisition as it arises.^^ 
 
 We may make a special observation as to jurisdiction by 
 arrestment at this point. This kind of jurisdiction is from its 
 very nature limited to the subjects arrested or their money- 
 equivalent, the caution found by the defender upon the 
 aiTestment being used. The exceptio rei judicatce pleaded 
 upon the ground of the exercise of such a jurisdiction can 
 only be sustained under that limitation, and execution against 
 the defender can never be demanded from the courts of any 
 other country.^® It seems, however, to be incompetent to 
 require the subjects or their money-equivalent adjudged to 
 the pursuer in the forum arresti from him in any other court. 
 The pursuer has acquired right to the subject itself or its 
 value, as the case may be, in conformity with the lex rei 
 sitcef and that must be recognised in a foreign country, even 
 although the judicial sentence as such cannot be allowed to 
 have effect. We must treat in the same way the case of an 
 arrestment laid not upon any corporeal article, but upon some 
 
 ^ Wheaton, § 147, pp. 194-95, remarks : "C'est un principe gMralement re- 
 connu parmi les nations, que toute sentence difinitive prononcSe par le tribunal 
 competent d'un Stat doit itre respectde et tenue eomme definitive par les trihunaux 
 d^un dtat, ou la sentence est invoquie comme exceptio rei judicatce." He would 
 allow the execution of foreign judgments solely upon considerations of mutual 
 profit, and not without conditions. Cf. Martens, Precis. § 94, and Mass^, No. 
 305, who, however, is not at one in this point with the French practice. 
 
 ^° The defender may certainly have a judgment finding the pursuer liable 
 in expenses executed in a foreign country, if the pursuer should fail in his 
 action. The pursuer has voluntarily subjected himself to this sentence. Cf. 
 supra, § 119, note 9, and the 10th section of the Draft Code II. for the States 
 of the German Bund reported there. [No such limitation is recognised in 
 Scotland to the jurisdiction founded by arrestments, but the Judgments Exten- 
 sion Act does not apply to decrees in absence obtained in Scotland upon such 
 arrestments. See supra, § 120, note, p. 539.] 
 
 2' Cf. Story, §§ 549-50, 591-92, and the decisions reported there. Even a 
 judgment by an admiralty court of an enemy in time of war condemning a 
 vessel as a prize will be recognised, if at the time of the condemnation the 
 vessel was in the hands of the enemy. Story, p. 734, § 588 et seq.j Foelix, ii. 
 S 549 are of opinion that this latter principle, which has been adopted in 
 France in spite of their non-recognition of foreign judgments in other matters, 
 is not true to the principles of international law. But both rest upon a 
 recognition of the sovereign rights of that State within whose power the thing 
 in question really is. 
 
570 [§ 125. 
 
 outstanding claim of debt : it is obvious, however, that since 
 the arrester can only be regarded as a possible assignee, that 
 court alone which would have to adjudicate upon the claim 
 itself is competent to lay on the arrestment — i.e., as a rule 
 the court of the domicile of the debtor in the obligation which 
 is the subject of the arrestments^ 
 
 It follows, too, from the same principles, that a party upon 
 whom diligence has been done by execution of a decree of 
 court in one country can never bring an action for recovery 
 of what has been taken from him in another State ; the one 
 must proceed upon the law of the same State as the other. ^^ 
 On the other hand, in order to carry out a judgment by 
 diligence, we certainly require a consent, and a Ucense to 
 carry it out to be given by the executive of the State on each 
 occasion ; that is so because the state of circumstances which 
 is to be the result of the judgment is not yet really brought 
 about. ^° 
 
 Burgundus even had started a theory which is closely akin 
 to that adopted by us. Just as he divides statuta into realia 
 personalia and mixta, so he sets up three kinds of actions in 
 reference to the subject of the execution and recognition of 
 foreign judgments — viz., actiones reales, personales, and 
 mixta}. He, too, proceeds from the axiom that the right of 
 legislation and the authority of judicial determinations corres- 
 pond with each other in international law. But he throws 
 the question into confusion again by giving an effectus per- 
 sonalis to a judgment upon real rights pronounced by some 
 other court than the judex rei sites ; and, on the other hand, 
 by confining the effect of a sententia, which imposes some 
 duty of acting or refraining from acting upon a party, 
 primarily to the territory in which it is pronounced, while 
 he proposes that it should not be recognised abroad unless 
 with the concurrence of the judge of the foreign territory. 
 
 28 story, § 592a. 
 
 29 Story, as cited. 
 
 30 For this reason, even the production of documents which belong to the 
 category of voluntary jurisdiction will not warrant the execution of diligence 
 in a foreign country without a special declaration to that effect which can be 
 worked out on the spot. Cf. supra, note 17, and Foelix, ii. § 476. 
 
125.] 571 
 
 but gives no rules to regulate the giving or tte withholding 
 of that concurrence. 
 
 BouUenois,^^ who takes the same division as his starting- 
 point, proceeds more correctly. He recognises not merely 
 judgments upon questions of status, which alone are included 
 by Burgundus in the class of actiones personales, but also 
 other deliverances, which compel some personal payment or 
 prestation, pronounced in faro domicilii of the defender : 
 he maintains, also, that foreign judgments pronounced by any 
 judge other than the judex rei sitce in actiones reales (real 
 actions referring to immoveable estate) are ineffectual in a 
 foreign country ; but he takes away the foundation of his 
 own theory by laying down the rule that the recognition of 
 foreign judgments affecting real property in this country is at 
 variance with the sovereign rights of the State ; this reason, 
 if it were sound, would not only estabUsh what he desires, but 
 would demonstrate that all judgments pronounced in a foreign 
 country are entirely ineffectual, since all legal relations which 
 it is proposed should bear some effect in this country are 
 thereby subjected to the sovereignty of this State as fully as 
 immoveables situated there. At the same time, in his view 
 the farum contractus is without further inquiry recognised in 
 its widest range, whereas the judgment pronounced by a 
 foreign court in a case specially submitted to its decision by 
 agreement of parties is not allowed the force of a final decree, 
 but merely admitted to provisional execution, although the 
 reason of this limitation is not made plain. But, lastly, it is 
 not clear how the farum domicilii can rule actiones personales 
 which did not take their rise there, but are rather subject to 
 another system of law — e.g., that which is recognised at the 
 place of the execution of the contract, or at the seat of a pre- 
 vious domicile. We now proceed to inquire what will be the 
 consequences of a persistent refusal to recognise the judg- 
 ments of foreign courts. 
 
 The parties are then able of new to assert rights and com- 
 peting rights, and to adduce evidence and counter-evidence ; 
 thus, apart from the consideration that the legal theories of 
 different courts seldom exactly coincide, it is probable that 
 
 31 I. 601. 
 
572 [§ 125. 
 
 in many cases the judgments of different courts -will arrive at 
 different results. If, then, the court finds at this stage that 
 it was unjust to dismiss the action in the foreign court 
 previously brought, it will give judgment now for the 
 pursuer. But so soon as the defender finds the property or 
 the person of the pursuer within his territory he may demand 
 that that which the second judgment has taken from him 
 shall be restored, on the ground that that second judgment is 
 of no force in his State : in this way matters might possibly 
 go on for a considerable time — ^this party prevailing at one 
 time and the other at another. It is to be observed that 
 intercourse with foreign countries would thus be made almost 
 impossible, and the disadvantages arising from non-recogni- 
 tion of foreign judgments would certainly affect the subjects 
 of one State as much as those of another in the most vital 
 manner. If, however, we should take the view that the 
 courts of a country where foreign judgments are not recog- 
 nised are bound in case of doubt to decide in conformity with 
 the decision of the foreign court, the whole subject is dis- 
 solved in capricious determinations, or in expensive and 
 dilatory forms. ^^ 
 
 It is quite possible, according to the view we have adopted, 
 that the judgment of a foreign court may not deserve recog- 
 nition. This can never be the case where the pursuer has 
 failed, since any pursuer who has recourse to a foreign court 
 voluntarily subjects himself to its decision. The defender 
 only can appeal to the invaUdity of a foreign judgment. 
 But since, as a general rule, the jurisdiction which our theory 
 calls upon us to recognise is the place where the defender 
 possesses property, and where he is most easily found, it will 
 seldom happen that any such appeal is made, and the pursuer 
 has himself to blame for the disadvantages that result from 
 the choice of any other court — e.g., if the competency of the 
 courts in the pursuer's country is extended so as to prejudice 
 the interests of foreigners. 
 
 32 The recognition of the judgment as such excludes investigation into its 
 merits (cf. Spangenberg, Gersterding, p. 313 ; Burge, iii. pp. 1066-67 ; 
 Wetzell, p. 338 ; Foelix, ii. § 329). Belgian jurisprudence adheres firmly 
 to this principle, and makes an exception only where the judgment is pro- 
 nounced in France JMre retorsionis. Cf. Foelix, ii. §§ 378-81. 
 
S 125.] 573 
 
 The disadvantages we have indicated recommend that 
 even as a measure of retaliation the non-recognition of 
 foreign judgments should not be employed. The refusal to 
 carry them into execution, on the other hand, in so far as it 
 is proposed to do so against residents in the district where 
 the court to which the demand is made is situated, does not 
 involve these disadvantages, and may therefore be employed 
 by way of retaliation.^^ Besides that, it is obvious that leave 
 to carry a judgment into execution must always be refused 
 if the claim itself to which it is sought to give effect must 
 
 ^^ See the report of the Commission on the Draft I. p. 23. 
 Wiichter, ii. p. 419, proposes that no judgment should be carried into 
 execution in another country if it is in coniliot with any prohibitory laws of 
 that country, whenever, in view of the court which is asked to carry it into 
 execution, the legal question at issue should have been determined in con- 
 formity with its own law. In the view we have adopted such a case can 
 never occur, for either the judge is competent, because the legal question at 
 issue must be determined by the law of his own country, or else the parties 
 have voluntarily submitted themselves to his jurisdiction, be that course right 
 or not. If it can be shown that the judgment has been obtained by some 
 means which our law describes as fraudulent, the court is relieved of all 
 obligation to assist the other, for the claim of the pursuer is pronounced by 
 our law to be immoral. Story, §§ 544-45. If the court in which the foreign 
 judgment is pleaded is forced to infer that the procedure adopted abroad 
 never gave the defender an opportunity of defending himself, then the 
 execution of the judgment, and the recognition of the exceptio rei judicat(B, 
 must both be refused as being contradictory of the supreme principles of 
 justice, which require that the defender should be heard, or should have an 
 opportunity of being examined. The courts of England and America require 
 that, if the defender had no domicile at the place where the suit depended, 
 or possessed no substantial property there, the first citation should be per- 
 sonally served upon him, and that in every case it should be presumably 
 known to him. Burge, iii. pp. 1056-57 ; Story, §§ 547-48, 540 ad fin. A 
 judgment of the Senate of Sardinia at Nizza, 26th April, 1841, in spite of a 
 treaty between France and Sardinia, by which the execution of judicial 
 decrees could be reciprocally required, refused to allow a decree by default 
 against a Sardinian subject, in the Court of Commerce at Marseilles, to 
 be carried into execution, because there had been merely service upon the 
 procureur du roi of the court at Marseilles ; and the Sardinian court held 
 that service of that kind was contrary to the fundamental rules for the 
 administration of justice in Sardinia. Foelix, ii. p. 68, § 344, note 1. The 
 Draft Code for the States of the German Bund provides as to this matter :-t- 
 " If an action is instituted before a court of one of the German States recognised 
 as competent by the provisions of this law, as to some civil question against a 
 party, the/orwrn of whose domicile lies in some other State, the citation which 
 
674 [§ 125. 
 
 be regarded by the law of our State as contra bonos mores, 
 or generally cannot be carried out in this country.^* 
 
 On the other hand, proof cannot be required to show^^ 
 that there was not enough property affected by the diligence 
 in the foreign country where the judgment was pronounced 
 to satisfy it.^® Besides the practical difficulties of such an 
 investigation, such a demand is at variance with the rules of 
 procedure in civil actions, by which, in the first place, the 
 judge has no right to determine directly on what property 
 diligence is to be done; and it might also lead to the most 
 inequitable results if, for instance, the foreigner happened to 
 possess real property abroad, which should become subject to 
 diligence ultimw loco, but had in this country property which 
 was primarily subject to it. 
 
 In one case only must recognition and execution always 
 be refused to a judgment issued abroad — ^viz., where the 
 judgment is really in a penal action. The court to which 
 application is made for execution can only co-operate in so 
 
 initiates the process, or any judicial order upon that party, must either be 
 endorsed by a magistrate of tlie State in which he has his domicile, in accord- 
 ance with the law of that State, or must be personally served upon him in 
 the State where the suit depends ; but if this provision is complied with, the 
 court of the other State must give effect to the citation or the order. It 
 matters not, in so far as the rules herein laid down are eoneemed, that the 
 party has answered to the citation or order." 
 
 ^* Hessian Ordinance of 25th April, 1826. If, for instance, the tenor of tlie 
 judgment is that the defender shall make over to the pursuer some real right 
 in an immoveable situated in another country, the law of which does not 
 recognise such a right, or if it finds the defender liable to make over move- 
 able estate to a Jew, while Jews are incapable of possessing real estate 
 according to the law of the country where the estate is, and where execution 
 of the judgment is asked. Of. Report of the Commission, p. 24. From the 
 grounds given in note 33 it is plain that English lawyers regard a deliverance 
 of a competent court as prima facie evidence of the subject to which it 
 refers. (Of. Story, § 547, and the notes of a judgment of Lord Brougham 
 there cited.) This view is entirely different from that of the French juris- 
 prudence, which only allows the proceeding which led to the first judgment to 
 be adduced as evidence. In English practice the judgments of a competent 
 court are recognised as such. See Story, §§ 603-04. 
 
 ^ Feuerbach, p. 121, desires this counter-proof to be allowed. 
 
 ^' See, on the other hand, Mittermaier, 14, pp. 105-06 ; Spangenberg on the 
 Hanoverian Ordinance as to the inferior courts, § 161, which shows the 
 practice in Hanover; Thol, § 77, note 2. 
 
§ 125.] 575 
 
 far as its law declares the judgment to be absolutely just. 
 It is then inevitably necessary that the whole matter should 
 be investigated anew. In the case of an action for damages 
 ex delicto ^' (and the court which is to give execution must 
 determine the character of the action by reference to its own 
 law) a fresh investigation is not necessary upon the same 
 ground ; but there will always be an indirect way of introducing 
 such an inquiry to some extent if the judgment has not been 
 pronounced in foro domicilii, and the defender disputes the 
 fact of the delict, since the proof as to the place where the 
 delict took place cannot be separated from the proof as to 
 whether it really took place at all. 
 
 It follows necessarily that the courts of the State in which 
 it is proposed to carry the judgment into execution deter- 
 mine whether the court was competent to pronounce it under 
 the principles of international law. If the decision of this 
 question depends upon disputed matters of fact, a proof of 
 these must be allowed, even although they may already have 
 been the subject of evidence taken before the foreign court.^^ 
 This may, no doubt, lead to the result that, in pursuance of 
 this object, the courts of the State in which the judgment 
 is pleaded will have to enter upon an examination of the 
 grounds of action — if, for instance, the question should be in 
 what place the contract was concluded. According, however, 
 to the theory we have adopted as to the forum contractus, 
 such cases can only occur very rarely. The facts upon which 
 questions as to the forum contractus depend must, in the 
 vast majority of cases, be undisputed, and the forum, delicti 
 commissi is in itself of little moment in international inter- 
 course. Admissions which may be made on this point before 
 the first court must be held, even by the court before which 
 the judgment may afterwards be brought, as a voluntary 
 submission to its jurisdiction. The same, too, is true of the 
 tendering of an oath or referring the cause to it, a proceeding 
 
 ^ Eecognised in the convention of 6th-19th July, 1855, between Saxony 
 and Baden, art. 23. On the other hand, in the Draft Codes for the States 
 of the German Bund, the forum delicti is not recognised. Cf. the " motif" 
 to the Ist and 20th sections of the First Draft, and Draft II. § 34 ad Jin. 
 " The provisions of this law shall not be applicable to suits for damages." 
 
 38 Cf. Draft I. § 27 ; and Draft II. § 30. 
 
576 [§ 125. 
 
 akin to an agreement.^* Fictional admissions, however, 
 have no influence upon the court which is to put the judg- 
 ment in force. They assume the justice of subjecting a 
 party to diligence, which is the very question to be debated 
 in the court to which the subsequent application is made. 
 A result of this is that the absence of the defender can never 
 establish the competency of any court so as to bind a foreign 
 court;*" while, on the contrary, to enter upon a discussion 
 of the merits of a case without raising the objection of want 
 of jurisdiction, if the law of procedure in the court does not 
 allow a subsequent return to this plea, implies a declaration 
 that the party is prepared to carry through his suit before 
 this tribunal, and therefore a voluntary subjection to its 
 authority. 
 
 If it be established that the judgment is the judgment of 
 a foreign couit according to law, it matters not to the court 
 which is asked to carry it into execution in what manner it 
 was reached ; it is, too, a matter expressly left to the deter- 
 mination of the law and the courts of the country in which 
 the judgment was pronounced, how far the person resisting 
 execution is entitled to be heard judicially and to use 
 remedies of law." (Cf. supra, note 33.) One is apt to 
 
 ^ The pursuer always submits himself to the jurisdiction of the foreign 
 courts in so far as the payment of expenses is concerned. 
 
 *" Draft II. § 20 ad fin : " It is not to bo held a tacit prorogation of juris- 
 diction that the defender gives no obedience to the citation which introduces 
 the suit, and allows a judgment by default to go out against him." 
 
 ** The treaties reported by Krug, pp. 11-15, contain in almost identical 
 terms in article 3, the addition : — " A judgment pronounced by a competent 
 court in accordance with law, a civil judgment, gives rise to the plea of res 
 judicata in the courts of the other country, with the same results as if the 
 judgment had been delivered by a court of the country in which the plea is 
 urged." Savigny, however (§ 373 ; Guthrie p. 233), properly notes that 
 hardly any attention has been paid to the more delicate distinction started in 
 the text, and that the meaning unquestionably was that the plea when it 
 arises upon a foreign judgment should be as valid as if it had arisen upon a 
 judgment of the courts of this country, and could not therefore be repelled 
 because the first judge held office in another country. In harmony with the 
 principles here developed, the 30th section of the Draft Code provides ; — 
 
 " The court which is asked to carry a decree into execution must dispose 
 of objections to the execution if they deal with either — . 
 
 "1st, the conditions on which, according to the rules of law of the court, 
 the execution depends ; or, 
 
§ 125.] 577 
 
 think that the sentence of a foreign court should have no 
 greater effect than that which is given to the sentence of a 
 native court, and that therefore a judgment pronounced by a 
 foreign court in accordance with law should be open to be 
 assailed or rendered ineffectual in the same way as that of a 
 court of this country.*^ But this is a mistake. The recog- 
 nition of a decision pronounced by a foreign court rests upon 
 
 the mode of execution itself and the procedure that is to be 
 observed. 
 
 On the other hand, all objections! which do not fall under these two 
 heads must be regulated by the law of the court that pronounced the 
 judgment. The court where execution is demanded is competent to deal 
 with objections to it arising from claims made by third parties to the subjects 
 on which it is proposed to do diligence." 
 
 « The Ministerial Ordinance of Prussia, of 24th April, 1833, reported by 
 Mannkopf, i. 24, § 30, recognises this principle, but holds the inducm within 
 which execution may proceed as a modus prOcedendi, which is regulated by the 
 law of the court upon which the demand is made. Of. judgment of the Rhine 
 Court of Cassation at Berlin, in Volkmar, p. 259: "Judgments pronounced in 
 foreign courts can only be declared capable of execution in this country to the 
 same extent as they are capable of execution abroad. The question, too, 
 whether the nuUi ty of a foreign decree may be pleaded ope exceptionis or must ho 
 established by means of a special action of reduction in the competent court, 
 must, in accordance with the principles already laid down, be settled by the 
 law of the court in which the judgment was giyen." A judgment of the 
 Supreme Court of Appeal at Liibeck, of 30th June, 1843 (Seuffert, ii. pp. 
 317-18) upholds the competency of pleading a nullity, o^e exceptionis, in . 
 accordance with the law which is recognised as the seat of the court where 
 the actio judicati comes to depend, and not in accordance with the law under 
 which the judgment, as to the competency of executing which the question 
 has arisen, falls. The court notes, as the foundation of this judgment, that by 
 the opposite view, if an action was brought in a German court upon some docu- 
 ment executed before a French court, the falsity of that document could not 
 be pleaded simply ope exceptionis, but must be urged in the form of a French 
 inscription en faux, a point which must in certain cases (Cf. Code de Pro- 
 cedure arts. 14, 240, 249), be transmitted to a special court in France ; no 
 one could maintain such a view. But in my opinion the analogy between 
 the judgment and the document is not complete; the document does not, like 
 the judgment, establish a legal relation — it only proves it. If any law does 
 not permit the plea of nullity to be advanced in another court ope exceptionis,. 
 it enacts thereby that the judgment with all its effects shall stand until it is 
 formally reduced. If, then, a third court nevertheless proposes to pronounce 
 the judgment invalid, that is irreconcilable with a recognition of the import of 
 the judgment. On the principle adopted as its guide by the court in the 
 iudgment cited above, it fell into the dangerous position of being forced to- 
 determine a question by foreign laws of procedure. 
 
 2 P 
 
578 [§ 125. 
 
 this, tliat our law commits the disputed point to the decision 
 of the law of the foreign judge, or upon the fact that parties 
 have of their own free will subjected themselves to that law. 
 In both cases the jildgment must be accepted with all the 
 consequences and effects which the foreign judge intended to 
 attach to it.^^ Even although the foreign court invests its 
 decision with the force of law inter omnes, whereas our 
 law would restrict its authority to the contending parties, 
 we must recognise the full effect ascribed to it ; for the 
 necessary condition of the competency of the judgment to 
 affect third parties is that the courts of the country in which 
 the judgment is pronounced are, upon the fundamental 
 principles of international law, competent to exercise juris- 
 diction over these third persons. 
 
 In the same way the question as to the legal force of the 
 grounds of decision depends upon the law of the court which 
 pronounces the judgment, provided always that the legal 
 relation which is to be affected by the original decision falls 
 under the law and the jurisdiction of the State in which the 
 judgment was pronounced.** 
 
 Just as a definitive or final determination of any legal rela- 
 tion in our State has a good claim to be recognised and to be 
 carried into execution, so must a provisional or conditional 
 determination be recognised and carried out, the more so as 
 
 *^ English courts have decided that they will not recognise judgments pro- 
 nounced abroad, if the foreign court, ■while professing to apply the law of 
 England, has misapprehended that law in such a way as by the law of 
 England renders the judgment null, whereas no account is taken of an error 
 which would merely ground an appeal. Burge, iii. 1064-67. [But according 
 to Westlake, § 310, p. 313, this course would no longer be taken by an English 
 court ; no account would be taken of any mistake as to English law. " The 
 errors referred to may be more easily ascertainable by the English court than 
 other errors of law or fact, but in their relation to the merits of the case they 
 do not seem to differ from other errors."] 
 
 " Of. judgment of the Cour Imperial at Eouen, 23rd May, 1813 (Sirey, 
 xiii. S, p. 233). The "motif" of Draft I. states that the draft does not pro- 
 pose to answer these questions. But it does indirectly proceed upon the 
 very theory adopted by us, at least in so far as a challenge of the judgment 
 is concerned, for in § 29 (cf. Draft II. § 30), in so far as the application of a 
 foreign judgment is demanded, it refers all pleas which do not touch the com- 
 petency of the court from which the judgment issued or the method of 
 execution, to the court which has cognisance of the principal action. 
 
§ 125.] 579 
 
 the latter frequently passes into the former by mere lapse of 
 time, and as in a strict sense every judgment that is open to 
 be assailed in any way is merely a provisional determination 
 of the legal relation in dispute. The rules as to the execu- 
 tion of foreign judgments are not therefore to be limited 
 to legal judgments in the strict sense, but every judgment 
 which can, by the law of the court that pronounces it, be put 
 into execution, must be capable of being put into execution 
 in another country under the same conditions as if it were a 
 final sentence in a regular process. 
 
 This theory, adopted in most of the German treaties,*^ and 
 in the Draft Code for the States of the German Bund (§ 1), 
 and as developed by the "motif" of this draft, is also 
 supported by overwhelming considerations of expediency,*® 
 especially as it may be that the legal force of a judgment is 
 dependent upon the possibility of carrying it into execution ; " 
 in which case, so soon as the defender ceased to possess any 
 subject upon which diligence could be done in the State where 
 judgment was pronounced, the opposite theory would lead to 
 the result that the successful party would altogether lose 
 his undoubted right. 
 
 Conversely, the court which had jurisdiction to determine 
 provisionally the legal relation has jurisdiction to reduce this 
 provisional determination, and to regulate finally the legal 
 relation in dispute ; and that is an exclusive jurisdiction, for 
 the suit has once come to depend in that court ; and the 
 second course of procedure — which may, for instance, be a 
 secondary action in an executory process at common law, 
 dealing with illiquid pleas remitted to a separate probation — 
 is merely a continuation of the former (c£ Draft I. § 6, note, 
 pp. 30-1, and Draft II. § 15).*^ 
 
 « Of. Krug, p. 13. 
 
 " "Motif" of the Draft I. p. 19, and Draft II. § 1. Otherwise a 
 decree of the Supreme Court of Appeal at Cassel, 27th November, 1841 
 (Strippelmann, ii. 1, p. 14). 
 
 *' Of. for instance, art. 146 of the Code de ProoMure ; art. 643 of the 
 Code de Commerce. 
 
 *^ " If in the course of a suit before some court which must be recognised as 
 coinpetent in virtue of this law, in which, by common law, only certain kinds 
 of evidence — e.g., documentary evidence — are admitted, some illiquid pleas 
 should be remitted to a special probation, the courts of the country where the 
 
580 [§ 125. 
 
 There can be no general answer given to the question as 
 to the mutual relations of the diiferent provinces of one and 
 the same State in matters of the recognition and competency 
 of executing the judgments pronounced therein. If these 
 different provinces have one common system of jurisdiction 
 or one judicial establishment, that will suffice to render the 
 division into different provinces quite immaterial ; the con- 
 sideration whether the supreme court for the separate provinces 
 does or does not consist of the same persons cannot be held 
 to decide the question any more than it will solve the diffi- 
 culty to determine whether the judgments proceed in the 
 name of the same sovereign or not ;** a union under one 
 person, though it might be quite fundamental, or a union 
 which dealt merely with political questions, would not solve 
 such a question as this where rights of private law are con- 
 cerned. The Draft 1.^" of the Code for the States of the 
 German Bund proceeds with questionable accuracy on the 
 assumption that the provinces in the different States of the 
 Bund have no independent judicial establishment and juris- 
 diction.^^ The second draft seems, on the contrary, to have 
 abandoned this principle.^^ This general rule, however, must 
 be laid down, that if assistance is to be given to foreign 
 courts independently altogether of special treaties, it cannot 
 be refused to the courts of another province, if there is no 
 question as to their jurisdiction.^^ 
 
 process depeDds, declared by the law of that country to be competent to such 
 probation, must be recognised as competent to determine questions as to these 
 pleas, in so far as they raise questions as to the withdrawal or recall of the 
 judgment in the former process, or the re-imbursement of money paid upon 
 that decree." 
 
 *' Judgments of English courts will only be recognised in Scotland, and 
 Scottish judgments in England, as if they were judgments of foreign courts. 
 Of. Burge, i. p. 672, iii. p. 1050 ; Story, § 54. [But see p. 592, ad Jin.'] 
 
 '" Cf. § 1 and § 3, and the analysis, p. 28. 
 
 M Cf. e.g. Hannov. Pr. 0. 8th November, 1850, § 663, 1. 
 
 '' Cf. § 1: "Every judgment pronounced in matters of civil right in a 
 German State which can, by the law of that State, be carried into execution, 
 must be put in force in every other State of Germany just like a judgmeilt 
 pronounced there, in so far as — 1st, the court which has given judgment is to 
 be recognised as having jurisdiction according to the provisions of this Code." 
 
 " The judgment of the Supreme Court at Berlin, of 5th May, 1857, .says 
 no more ; it is thus expressed : " No doubt, in the general case, judgments of 
 
§125.] 681 
 
 The separation of the district of the country in which 
 judgment was pronounced, from that in which it is proposed 
 to carry it into execution, has no effect upon the private 
 rights of parties, and therefore none upon the recognition of 
 a judgment. If, however, a judgment pronounced in this 
 country is confirmed by a foreign court of second instance, 
 which has become competent to entertain it by reason of the 
 separation it becomes a judgment of a foreign court. Con- 
 versely, the union of two countries has no effect upon judg- 
 ments capable of being carried into execution which were 
 pronounced before the union. ^* The fact that the judgment 
 was pronounced at a time when the place where the court is 
 situated was temporarily occupied by the enemy does not 
 make it necessary to view the judgment as if it had been 
 pronounced by a foreign court ^^ 
 
 The question whether in any particular case a foreign 
 judgment is to be executed, is substantially one of private 
 law,*^ and is, therefore, committed to the determination of the 
 courts of law ; but, on the other hand, the preliminary ques- 
 tion whether the judgments of this or that foreign State shall 
 be allowed to be put in execution at all or not, depends on 
 considerations of public law and the relations that subsist 
 
 the courts of Rhenish Prussia must be carried out in the old Prussian pro- 
 vinces. It cannot be understood that the same Government which gives the 
 force of law to the judgments of the courts of Khenish Prussia intended to 
 give them this force for one province only, and to refuse it in so far as aU 
 other divisions of the kingdom are concerned." These judgments, however, 
 which, if atfeoting inhabitants of old Prussia who had not been personally 
 present in the Rhine provinces, depended entirely upon the 420th article of 
 the Ordinance for Procedure in Rhenish Prussia, had given rise to doubt, 
 because the general Prussian Ordinance, i. 2, § 150, had not duly recognised 
 ;the /ontm contractus, as the 420th article did, and judgment of that kind by 
 the Rhenish courts appeared to imply an invasion of the jurisdiction of the 
 other provinces (Striethorst, xxiv. p. 264). Since then a special statute has 
 been passed in Prussia on this point. 
 " Cf. Foelix, ii. § 363, and the French decisions reported there. 
 ,66 Fcelix, ii. § 364, p. 107. 
 
 " Cf. Judgment of the Supreme Court of Appeal at Cassel, Uth February, 
 .;1854 (Heuser, Annalen, i. p. 674). The Draft Code for the States of the Bund. 
 iTefers these questions to the court. By older French jurisprudence, a foreign 
 judgment furnished with the Pareatis and the great seal might still be 
 called in question by an inferior judge on the score of jurisdiction, BoulleQois, 
 i. p. 645. 
 
582 [§ 125. 
 
 between the States, and is, therefore, committed to the deci- 
 sion of the official who represents the justice of the State in 
 its foreign relations — in German States the Minister of Justice. 
 If the successful party desires to institute the actio judicati 
 in order to put the foreign judgment in force, the court 
 which has jurisdiction to deal with the sum in question by 
 the law of the land is the competent court for the procedure ; 
 a simple warrant for diligence can, on the other hand, be 
 obtained from any court within whose jurisdiction subjects 
 liable to diligence can be found, and for this purpose the 
 court which has to decide other disputes in the process of 
 doing diligence as to the value of the subjects seized, and the 
 amount of the sum for which diligence is to be done, has 
 jurisdiction. In this case the successful party must show 
 that by the law of the court from which the judgment 
 issued a simple warrant of execution, either from the court 
 itself or from the proper officer, would be enough,^^' ** and 
 that such a warrant is the proper procedure prescribed by 
 the law of that country, instead of a demand made through 
 the court where the suit depended.^® 
 
 Where it is quite plain that it is not admissible to put the 
 judgment into execution, the court which is invited to pro- 
 nounce a declarator that it is admissible may, of its own 
 accord, refuse to give assistance.^* But in the opposite case, 
 
 57 This is so because the results of the judgment must be generally deter- 
 mined by the law of this court. 
 
 5* On the diiferenoe between these cases, see a judgment of the Supreme 
 Court of Appeal at Cassel, 21st Feb. 1854 (Heuser, Annalen, iii. p. 636 et uq.), 
 " The actio judicati instituted by a foreign pursuer against a defender belong- 
 ing to this country upon a foreign judgment is truly of a private nature, 
 while a warrant to carry out the decree must, in the first instance, proceed 
 upon the legal force which public law attaches to the judge's deliverance. 
 The result of this distinction is, that the special provisions of the Hessian 
 land laws which depend on considerations of public law, and regulate ithe 
 demands of foreign officials, are not to be applied in the former case. But 
 still the judge of this country must, where the defender belongs to this country, 
 test the legality of the judgment of the foreign court, in respect to its juris- 
 diction. 
 
 50 See the procedure adopted in France with reference to judgments pro- 
 nounced in Switzerland and Sardinia, Foelix, ii. §§ 372-73. 
 
 "0 Of. Ordinance of Hesse Cassel of 25th April, 1B26, § 3, No. 2 ; Procla- 
 mation of the Ministry of Nassau, 4th October, 1824 (Nahmer, ii. p. 396)! 
 
§§ 125, 126.] 583 
 
 since there may be some special defence against a foreign 
 judgment, even if execution would pass upon a judgment in 
 this country without any hearing of the opposite party, an 
 opportunity must be given to him of urging any objections 
 that are competent by the regulations for procedure recog- 
 nised in the court from which execution is asked.^^ 
 
 If execution is refused by a subordinate court, an appeal 
 or complaint to a higher court (regard being had to the 
 value of the subjects on which diligence is to be done, as 
 affecting the competency of such a coixrse) wUl be permitted^* 
 just in the same way as in other disputes arising in the 
 course of the procedure for diligence.*^ 
 
 Deliverances by Arbiters — Former Practice — CoMPARisoif 
 OF THE VARIOUS Grounds of Jurisdiction to be recognised 
 IN International Intercourse. 
 
 §126. 
 
 The deliverances of arbiters are to be treated like the 
 sentences of judges, in so far as parties are forced to submit 
 themselves to them ; the arbiter to whom the parties are 
 forced to submit themselves takes the place of the regular 
 judge;* a voluntary submission, however, is to be regarded 
 like a contract made in a foreign country, even although other 
 judgments by the courts of that country are not in use to 
 
 °' Nahmer, as cited. To a different effect, Hannov. Processordn. § 534. 
 
 '2 Nahmer, ii. p. 396. The execution of the judgment is not an affair ol' 
 caprice, dependent upon the pleasure of the particular court (Gesterding, 
 p. 321). 
 
 °3 Of course, in the absence of special provisions which may provide 
 that the minister of justice shall be the judge of last instance. 
 
 ^ Foelix, ii. § 424. Where the parties by a special bargain have sub- 
 jected themselves to the decision of arbiters, but this cannot proceed without 
 a judgment of the court appointing parties to submit to the judgment of the 
 arbiters, because there has been a dispute as to their appointment; this is in 
 truth a case of an involuntary submission, which resembles a judicial 
 deliverance, and will be so treated. Cf. Hann. Civil Pr. Ordn. § 533. A 
 true decree-arbitral is recognised even in France. 
 
 [It is quite competent for a foreigner to act as an arbiter; he is truly a 
 mandatory (Albertoli v. Gouthier, 15th March, 1875; Ct. of Ghambery),] 
 
684 [§ 126. 
 
 be recognised here;" the onjy distinction is, that the courts 
 of the country in which diligence is to be done must always, 
 as a preliminary step, invest the decree-arbitral with their 
 sanction before execution can be done.^ Even the deliverance 
 of a permanent court of arbitration estabUshed by the State is 
 to be regarded as & settlement of matters in dispute by 
 way of contract, if both parties have voluntarily subjected 
 themselves to it ; but, in respect of the requirements of a 
 true contract, it is not sufficient to produce this effect that the 
 merits of the question at issue have been discussed before 
 the arbiters. 
 
 The very first principles of German practice admit the 
 recognition of judgments pronounced in another country, 
 and the execution of them, so long as reciprocity is 
 observed ;* all that is required is, that they be judgments of 
 courts of competent jurisdiction. There seems, however, to 
 be a lack of generally recognised principles to determine 
 under what conditions foreign courts are to be considered as 
 having competent jurisdiction. Sometimes it is held suffix 
 cient if the court which pronounces the judgment was 
 competent under its own law ;^ sometimes it is thought 
 necessary that it should be competent according to the law 
 of this country also.® 
 
 More recent treaties have abandoned this endeavour, and 
 have sought on entirely different principles to introduce a 
 method of regulating such questions which is fairly in 
 accord with the principles we have adopted. 
 
 The practice of the courts of England, Scotland, and 
 America is, upon the whole, in conformity with these 
 
 2 Poelix, ii. § 425; Mass^, Nos. 319, 322. 
 
 " Foelix, ii. § 427. 
 
 * Wetzell, § 31. 
 
 ' Cf. Piittlingen, p. 155. 
 
 ' Cf. for instance, the judgments of the Supreme Court at Stuttgart, 5th 
 September, 1854 (Seuffert, viii. p. 448); of the Supreme Court of Appeal at 
 Liibeck, 27th December, 1852 (Romer, i. p. 337). Ordinance of Hesse, 25th 
 April, 1826. So, too, the practice in Denmark, according to Foeliy, ii. § 345, 
 p. 69. Many laws do no more than lay down the necessity of competent jurisdic- 
 tion, without determining how this is to be settled. Cf. e.g. Braunschweigische 
 Verfassungsurknnde of 12th October, 1832, § 310 ; Law of Wiirtemberg, 25th 
 April, 1825. [See infra, p. 587.] 
 
§ 126.] 585 
 
 principles. The recognition and application of the judgment 
 are not made to depend upon the reciprocity of the other 
 State. The competency of the judex rei sites is, however, 
 held to be exclusive, so that there cannot even be a volun- 
 tary prorogation of this to another court in accord with 
 international law, and it is apparently impossible to make 
 the judgment effectual in a foreign country.^ There is, 
 then, no recognition of a special forum contractus ; but this 
 distinction is rendered quite immaterial ^ by the extension of 
 the forv/m domicilii, and the consequent subjection, after a 
 residence of some duration, of the person to the jurisdiction 
 of the place where he resides, — at least in questions of obliga- 
 tion, and so far as the property there situated is concerned.' 
 Since their courts hold fast to the view that a sentence which 
 can be described as a gross injustice by the law of their country 
 can never be made the foundation of a claim to be followed 
 out there, ^'' it is always, and particularly in questions as to the 
 execution of diligence, required that the defender had, or 
 must be presumed to have had,^^ knowledge of the action, 
 and that the pursuer must not have conducted his action in 
 a way that can be described by the law of England as 
 fraudulent, or at variance with the principles of hona fides}^ 
 Isolated cases have no doubt occurred in which a wider 
 license has been allowed in testing foreign judgments. ^^ 
 
 7 Story, §§ 543, 551, 591. 
 
 8 Story, § 543. 
 
 9 Cf. Story, §§ 587 et seq., especially §§ 606-08 ; Burge, iii. p. 1050 ; 
 Wheaton, § 147, pp. 194 et seq.y Foelix, ii. No. 40. 
 
 i» Story, § 544 ad fin. 
 
 ^^ See last paragraph, notes 19-20. 
 
 12 Another exception is made if the foreign judgment is built upon the 
 law of this country, but has apprehended it incorrectly, so that by the law 
 of this country the judgment is a nullity ; but not where the result would 
 merely be to give right of appeal (Burge, iii. p. 1064-66). 
 
 [This is thought by Westlake to be no longer a rule of English law, § 310, 
 p. 313. See supra, p. 578, note 43.] 
 
 13 See Story, § 602, against the illogical view that a judgment of a foreign 
 court may serve to destroy, but can never establish a right. In the United 
 States it is provided by the constitution that in every State full faith shall 
 be accorded to any judgment or judicial procedure had in any other State 
 of the Union. This is, however, no obstacle to trying the question of com- 
 petent jurisdiction as affecting the recognition of the judgment. 
 
586 [§ 126. 
 
 No general rules can be laid down upon the question 
 whether diplomatic interference is necessary in cases where a 
 demand for inquiry is made upon foreign courts." 
 
 The results of this discussion are in brief : — 
 
 The judgments pronounced by a foreign court of competent 
 jurisdiction are to be recognised to the effect of founding 
 the exceptio rei judicatoe, or, as the case may be, the replicatio 
 rei judicatcB, irrespective of whether the foreign State in 
 question wiU give reciprocity, under the condition always 
 that there has been a true suit, and that the procedure can 
 not in any way be described by the law of this country as 
 fraudulent. 
 
 In the sense of international law, and for its purposes, 
 jurisdiction belongs — 
 
 1st. To the courts of the country where the defender is 
 domiciled, in aU personal actions, and aU real actions that 
 deal with moveables, in so far as the forum, rei sitce is not, 
 under the third head following, competent. 
 
 2nd. To the courts of the State by the laws of which a 
 contract obHgation must be determined, in so far as the 
 debtor is personally present there, or possesses substantial 
 property there, in all actions springing out of that ohligatio}^ 
 
 3rd. To the courts of the State in which a delict was 
 committed in all actions for damages, but not for penalties, 
 arising out of that delict. 
 
 Mh. To the courts of the State in which property or claims 
 of debt are laid under arrestment, to the amount of the 
 value of that property or these claims,^^ in issues relating 
 to the principal claim for the security of which the arrest- 
 mients have been used. 
 
 5th. To the courts of the State where the property in 
 dispute is situated, in all real actions that touch real pro- 
 perty or moveables, which are permanently attached to the 
 spot by dedication. 
 
 " Cf. e.g. Piittlingen, §§ 122-23. 
 
 1* And in all actions, too, for reduction of the obligation, as is plain from 
 the principles laid down above, in the law of obligations. See, too, the Diaft 
 II. for tbe States of the German Bund, § 6 ad /n. 
 
 ^^ Of course in so far only as the State where the arrestment took place 
 recognises the competency of establishing by this means a forum arresti 
 which may regulate the real claims of parties. 
 
§ 126j iVbfeZ.] 587 
 
 6th. To the court of the State to which parties have vol- 
 untarily submitted themselves. 
 
 The execution of foreign judgments depends further upon 
 the consideration that the outcome of the judgment shall not 
 be directed to any object which is by our law held inadmis- 
 sible or immoral, and all execution may be interdicted by 
 Government if the foreign State ia question refuses to carry 
 out judgments pronounced by courts of our country having 
 jurisdiction upon the principles above laid down, in so far as 
 the judgment in question is in favour of some person not 
 belonging to our State. 
 
 NoteZ, 0TO§§ 125, 126. 
 
 [The principles of jurisdiction in various countries, in so 
 far as they differ from those stated in the text, have been 
 considered already (cf. supra, § 120, note, p. 534 et seq.). 
 It remains to consider here shortly the principles which will 
 be taken to. regulate the recognition and the execution of 
 judgments pronounced in the courts of another country. ' 
 
 In Germany, the rule formerly was that the validity of the 
 judgment of a foreign court was recognised, and execution 
 was allowed in Germany on condition of reciprocity (Matty 
 V. Friedrich, Court of Giessen, 3rd July, 1876). By §§660- 
 61 of the CivU Processordnung, foreign judgments are now 
 recognised in the Empire, and execution is given by the 
 authority of a German magistrate, unless — (1) The judgment 
 has not become final and capable of being put into execution 
 in its own country ; (2) The recognition or execution would 
 violate some public law of the Empire ; (3) The foreign 
 judge, according to principles recognised in Germany, was 
 incompetent ; (4) The debtor is a German and has not been 
 cited, either personally in the foreign territory, or in 
 German form in German territory ; (5) The courts of the 
 foreip'n country in question do not show reciprocity. 
 
 In Belgium, similarly, the court which is asked to give 
 execution to a foreign judgment will satisfy itself — (1) That 
 the judgment is not contrary to public order, or the funda- 
 mental principles of Belgian law ; (2) that it is a final judg- 
 ment in its own country ; (3) that an authentic extract is 
 produced ; (4) that the rights of the defender have been 
 
5«8 [MteZ. 
 
 respected — e.g. by due citation ; (5) that the jurisdiction of 
 the foreign court has not been sustained solely by reason of 
 the nationality of the pursuer. Code de Procedure, art. 10, 
 25th March, 1876. The last proviso seems intended to 
 meet the jurisdiction exercised by the courts of France, in 
 virtue of the 14th article of the Code Napoleon, in favour of 
 any French suitor who appeals to them against a foreign 
 defender. The Belgian courts had held, before the date of the 
 Code just cited, that where parties had agreed to refer aU 
 questions arising upon a certain contract to the law of a 
 foreign country, any judgment following upon that agree- 
 ment did not require to be revised by the Belgian courts 
 before being put into execution (Trib. Civ. de Bruxelles, 5 th 
 April, 1873). Foreign judgments in compliance with the 
 conditions cited above do not now require revision. 
 
 In Italy, the judgment of a foreign court will be recog- 
 nised, and will be put in force, if the foreign tribunal was 
 competent by its own law, and if the defender was duly cited, 
 and, if a minor, properly represented ; the question;, of 
 whether the citation and representation were regular and 
 adequate will be determined according to the law of the court 
 which has pronounced the judgment ; but a decree in absence, 
 for example, is not a judgment of which execution can be 
 demanded ; it is held to be " destitute of all legal foundatioji " 
 (Demarri v. Bosso, Court of Cass, at Turin, 25 th August, 
 1874). The regularity of other points of procedure wiUrbe 
 determined by the lex fori (Mazzotti v. Cisi, App. Coupt of 
 MUan, 22nd September, 1879). By treaties concluded in 
 1760, and 11th September, 1860, between Italy and France, 
 the only inquiry that can be had into a judgment of either of 
 these countries which it is sought to execute in the otherj is 
 whether the court had jurisdiction under its own law, and 
 the procedure has been regular ; the execution of the judg- 
 ment must not transgress public order, or encroach upon the 
 constitution of the country in which it is to be enforced • the 
 merits of the judgment will not be examined. In spite, 
 however, of the provisions of these treaties, a judgtoent 
 of a French court founded! on the principle that its own 
 subjects are always entitled to appeal to it for protection, and 
 in flagrant disregard of the rule actor sequitur forum re*,,. will 
 
Nou Z.] 589 
 
 not be allowed execution in Italy, as being contrary to tbe first 
 principles of international law (Ct. of App. at Catania, 22nd 
 March, 1879, Ardizoni v. Rider). The Italian courts require an 
 authentic extract of a foreign judgment before allowing it to 
 be put into execution (Freyberg v. Benasatti, Court of Appeal 
 at Venice, 24th May, 1874) ; and where there is a concurrent 
 jurisdiction in Italy and some foreign country, a judgment 
 obtained in the foreign court wiU be stayed in execution in 
 Italy until the Italian court has come to a determination of 
 the question (Morand v. Debenedetti, App. Court of Turin, 
 12th March, 1875. 
 
 In Denmark, there is no distinct legislation on the subject, 
 but the best authorities lay it down as law that there will be 
 no examination of the judgment, and that the only points for 
 inquiry are — (1) Whether the judgment is by its own law 
 final, and one on which diligence would be competent in its 
 own country ; (2) That the right established by the judgment 
 does not run counter to any fundamental rule of Danish law; 
 and (3) That the foreign court had jurisdiction under the 
 rules of international law as they are understood in Denmark. 
 
 The rule in France has been thus laid down by the Court 
 at Nancy : " According to principles of jurisprudence now 
 uniformly recognised, and in accordance with the rules 
 that must be observed for the protection of the sovereignty 
 and independence of different States, decisions of the courts of 
 one country cannot be carried out in another unless a power 
 is reserved in favour of the courts of the country where execu- 
 tion is sought to examine the merits of these decisions." Like 
 the other systems we have noted, the French law demands that 
 the foreign judgment shall be regular, and shall not be 
 founded upon any doctrine that is repugnant to sound 
 principle (C. de Paris, 24th November, 1873); and will 
 not enforce an English judgment which is no longer available 
 as a ground for diligence in the country where it was pro- 
 nounced (Brown v. Massy, C. de Paris, 17th August, 1877) ; 
 but, in accordance with the rule laid down by the Court 
 of Nancy, — a rule which depends for its validity on an ordi- 
 nance of 1629, — they will examine the merits of all foreign 
 judgments of which execution is demanded, unless there shall 
 be< as is the case with Italy, some treaty to a contrary eifect; 
 
590 [#o<e Z. 
 
 a foreign judgment was reviewed entirely anew (Trib. Civ. de 
 Pondiclierry, 21st October, 1872) ; even a Scotch decree of 
 confirmation is subject to the rule (Veuve Wright v. L'Etat, 
 C. de Rennes, 26th November, 1873) ; and the same principle 
 was followed in the case of a Spanish judgment (Roche et 
 Welker v. Pradines, 15th January, 1878, Trib. Civ. de la 
 Seine). But the foreign judgment does not go for nothing ; 
 in an action where a foreign court had given one French 
 subject damages, on account of a delict committed by a 
 fellow-subject, the French courts affirmed the foreign judg- 
 ment and allowed interest to run at foreign rates (Raymond 
 V. Messier, 9th June, 1880, C. de Cass.) ; and a French 
 court refused to allow a Frenchman, against whom an English 
 firm of solicitors had obtained decree for costs in the Enghsh 
 court, to plead in France that the solicitors had neglected 
 their duty, that plea not having been taken in the original 
 action (Renshaw et Rolph v. Maitre, 24th March, 1877, 
 Trib. Civ. de la Seine). The rule of jurisdiction that excludes 
 two foreigners from settHng their litigations in French courts 
 is not appHed as regards the execution of judgments already 
 pronounced by a foreign court ; the French courts have 
 allowed execution to proceed on a judgment in a suit 
 brought by an Englishman in England against an Austrian 
 (Panmure & Co. v. Werner, 1st August, 1879, Trib. Civ. de 
 la Seine). Where execution of a foreign judgment is 
 required, application should be made directly to a court 
 in France of the same grade as that which has given the 
 judgment, and no appeal should be allowed (C. de Nancy, 
 6th July, 1871). 
 
 The law of Scotland requires that action should be raised 
 there for execution of the foreign judgment, and the prin- 
 ciple on which such actions are determined is thus stated by 
 Lord Jeffrey in a judgment in which a decree pronounced by 
 an American court was founded on for execution in Scotland. 
 His Lordship found " that the judgment libelled of the 
 Court of Chancery of the State of New York, being a 
 foreign decree, is not of the same authority as a final decree 
 of the courts of this country, and can only be considered as 
 affording "prima facie evidence of the truth and justice of 
 the claims of the pursuers, but is liable to be impugned on 
 
Note Z.] 591 
 
 the part of tlie defenders — not merely by proof of want of 
 jurisdiction in the court from which it issued, or of its having 
 been pronounced in the absence of the defender, or of 
 material irregularities and informalities in the course of the 
 proceedings — but also by proof of its having proceeded on 
 error of fact, or even on error of law, more especially when 
 the law applicable to the case was not the proper law of the 
 country where the suit was tried and determined" (Southgate 
 V. Montgomerie, 9th Feb. 1837, 15 S. 507). In the case of 
 Whitehead v. Thompson (20th March, 1861, 23 D. 773) 
 this case was referred to with approval, and it was laid down 
 that a foreign judgment is examinable on grounds, clearly 
 and relevantly stated, going to impeach its validity and its 
 justice. The principle is stated, too, by Erskine, iv. 3, 4, 
 and the only qualification it has received from modern 
 authority is, that the case is not to be retried, but that it is 
 competent to order distinct allegations assailing either the 
 procedure of the foreign court, or the law or facts on which 
 its judgment is based, to be sent to proof But in the con- 
 verse case — viz., where the foreign judgment, instead of 
 being put forward as a ground for execution, is put forward 
 as a plea of res judicata in answer to a demand made anew 
 by a pursuer who has failed to establish his claim in a foreign 
 court, or in answer to one who demands restitution against a 
 sentence pronounced and executed abroad — the foreign judg- 
 ment cannot be examined. The reason of this Erskine puts 
 thus : " For the defender, in whose favour the decree was 
 given, does not in such case apply to the court for its aid, but, 
 on the contrary, rests entirely on the sentence recovered by 
 him in a foreign court confessedly competent in the cause ; 
 and so in effect excepts to the jurisdiction of the judge 
 before whom he is called as having no authority over that 
 court, nor any right of reviewing its sentences" (Erskine 
 ut cit.) So, too. Lord Braxfield, L. J. C, in Watson (21st 
 Jan. 1792, Bell's Svo cases, p. 107): "A res judicata is 
 good all the world over. The courts here would have no 
 right to review this final judgment." But these dicta do not 
 apply to decrees in absence, and, generally, a judgment to 
 claim such effect must be "regularly and solemnly pro- 
 nounced." More on Stair, p. 6. 
 
592 [IfoteZ. 
 
 In England and America, as in Scotland, the procedure by 
 which execution is done upon the judgment of a foreign 
 court, is by raising an action in the English courts founded 
 upon this judgment, just in the same way as if the claim 
 were one arising out of a contract. As in all the systems 
 we have noticed, the foreign judgment must be such as 
 execution could follow upon in the country where it was 
 pronounced, and must not be subject to appeal there. The 
 court which pronounced the judgment must have been com- 
 petent to do so, either as being a court of the domicile of 
 the defender, or of the country of his nationality. That the 
 contract on which judgment was given was intended to be 
 performed in the same foreign country is " a very material 
 circumstance," but the possession of landed property is not 
 thought to be sufficient to justify a foreign court in exercising 
 a general jurisdiction over the person possessing it. The 
 English courts would not recognise the abnormal jurisdiction 
 claimed by the French courts in all cases where the pursuer 
 is a French subject. There must also have been due citation 
 of the defender, and the judgment must not impinge upon 
 the maintenance of public order or of morality in England. 
 A foreign judgment when obtained in a competent court, 
 unless it has been so obtained by fraud, cannot, as a general 
 rule, be questioned either for error in law or for error in fact. 
 This is true even when the law applicable to the case was 
 English law, and was misinterpreted by the foreign court ; 
 and the maxim applies both to the case of a foreign pursuer 
 who comes to England to enforce the decree he has obtained 
 abroad, and to the case of a defender who protects himself in 
 England by pleading a foreign judgment as res judicata. The 
 American rule is substantially the same (Wharton, §§ 167 et seq.) 
 
 By the Judgments Extension Act of 1868 (31 & 32 
 Vict. c. 64), judgments of the supreme courts of one of 
 Scotland, England, or Ireland will have the effect of judg- 
 ments of the supreme courts of the other two if duly regis- 
 tered, as directed by the Act, in the other two territories. 
 This enactment applies to decrees in absence as well as to 
 decrees in foro, unless when the decree in absence is pro- 
 nounced in Scotland after jurisdiction has been founded by 
 arrestment.] 
 
§ 127.] 593 
 
 Mode op Execution. 
 § 127. 
 
 The law of the place where execution is to take place regu- 
 lates the mode in which it shall take place,^ even although 
 the judgment should assign some particular mode. 
 
 The debtor cannot appeal in the foreign country to the 
 fact that a particular mode of doing diligence — e.g., arrest of 
 the person — does not exist in the provisions of the local law 
 to which the obligation is subject.^ 
 
 If, however, according to the law of the place of execu- 
 tion, a particular form of doing diligence is only recognised 
 in the case of particular exceptional obligations, this kind of 
 execution arising out of the contract can only be applied if it 
 is at the same time recognised as competent in the kind of 
 claim in question by the law under which that claim itself 
 falls.^ If, for instance, personal incarceration is by the law 
 of the place of execution competent in obligations upon 
 bills, but is not recognised by the law to which the obligation 
 upon the bill in question is subject, in such a case this form 
 of diligence cannot be required at the place of execution.* 
 
 1 P. Voet, de Statut. x. c. un § 9 ; Huber, § 7 ; cf. Anton. Matthgeus, i. 
 § 21, No. 38 ; J. Voet, in Dig. xlii. 1, § 39; Hommel, Ehaps. Qusest. vol. L obs. 
 409, No. 10 ; Bouhier, chap. 32, No. 1 : Spangenberg, in Linde's Zeitschift 
 flir Civilr. iii. p. 429 ; Mittermaier, Archiv. fiir du Civil Praxis, xiii. p. 295 ; 
 Mass^, ii. No. 325 ; Foelix, ii. §§ 313, 330 ; Burge, iii. p. 1049. 
 
 2 Demangeat, on Foelix, ii. pp. 236 d seq. Draft II. of the Code for the 
 States of the German Bund, § 29 : " Diligence is to be done according to the 
 regulations of the procedure in diligence recognised at the place where it is 
 carried out. If the judgment pronounced in the one State has allowed per- 
 sonal arrest as a means of doing diligence, that can only be enforced in the 
 other under the condition that such personal arrest is recognised there in the 
 same way as a means of execution competent in the circumstances. If this 
 condition does not exist, then it is only the means of dUigenoe authorised by 
 the other State which can be required." 
 
 3 Cf. Story, §§ 568 et seq. 
 
 * Cf. judgment of the Supreme Court at Berlin, 10th July, 1860 (Seuffert, 
 xiv. p. 282), and supra, § 86, note 10. 
 
 2 Q 
 
594 [§ 128. 
 
 VI. Special Kinds of Pkoceduee. 
 
 A. Pkoceduke in Bankeuptcy. 
 
 §128. 
 
 Procedure in bankruptcy is simply a general execution of 
 diligence against the whole estate of the bankrupt for the 
 purpose of due ranking and payment of all creditors : this 
 process is carried on where the law places the centre of the 
 bankrupt estate — i.e., at the domicile of the bankrupt. 
 
 To this end, the whole estate is laid under a general 
 arrestment in favour of the whole body of creditors, and by 
 this means the bankrupt loses all power of alienation, 
 although he retains his general legal capacity of acting,-^ — so 
 that, for instance, he is able to take up or to renounce a suc- 
 cession falling to him, which no one who had lost his capacity 
 of acting could do, although, of course, he cannot lay the 
 bankrupt estate, which consists of his whole present property, 
 under any obligations. The estate is sequestrated by a re- 
 presentative of the creditors (curator bonorvmv, syndic, trustee), 
 who also represents the bankrupt, and, where it is necessary, 
 is managed by him and realised with the assistance of the 
 court, while all the creditors are called upon by public notice 
 to give in their claims against the bankrupt. 
 
 But, since it is assumed that the estate is not sufficient to 
 pay all its debts, any claim which may be made affects the 
 interest of every creditor, and, therefore, any creditor who 
 believes that his interest is endangered by the claim of 
 another creditor is entitled to interpose in the suit of this 
 creditor against the bankrupt, and to lay claim to the subject 
 under sequestration, which may either be the whole estate or 
 a part thereof, so as to operate his own payment either pre- 
 ferentially or pari passu. This right to interpose, in which 
 the bankrupt has no interest, leads to special suits between 
 individual creditors for preferable rankings. 
 
 1 Neither does bankruptcy give the creditors a universal succession to the 
 estate of the bankrupt, who does not lose his radical rights to the estate until 
 it is realised and alienated by the trustee, just as any other debtor retains his 
 right of property in articles given by him in security until they are sold. 
 
§ 128.] 595 
 
 From these characteristics of bankruptcy procedure, — ^which 
 is deduced by a perfectly logical process from general prin- 
 ciples of procedure, and must, therefore, necessarily follow 
 the lines here indicated, wherever it exists, although with 
 many deviations in matters of detail, — we can reach the rules 
 for its proper treatment in international law. 
 
 From the nature of arrestment it follows that the with- 
 drawal of the power of disposal from the bankrupt does not 
 extend to property belonging to him which is situated 
 abroad,^ and, therefore, that he is in a position to grant 
 perfectly valid conveyances of property so situated, so long 
 as it is not withdrawn from him by a special decree of arrest- 
 ment on the part of the foreign judge.* 
 
 This arresting of funds or estate abroad may be brought 
 about by the trustee appointed to represent the creditors, or 
 by other creditors in the foreign country,* and the foreign 
 judge must, therefore, have the power and the duty of setting 
 
 2 Mevius, ia Jus. Lub. iii. tit. 1, arts. 10 and 56 ; Pufendorf, Observ. i. obs. 
 1 27 ; J. Voet, Comment, xx. 4, § 12 ; Mass6, No. 324 ; Merlin, Rupert. 
 Faillit6, sect. 2, § 2, art. 10 ; Judgment of the Faculty of Law at Gottingen 
 in Bbhmer, Eechtsfalle, i. No. 82, p. 648, n. 17 ; Gand, No. 628 ; Judgment 
 of the Supreme Court of Appeal at Liibeck, 19th Jan. 1824 (Seufifert, v. p. 
 439) ; Supreme Court of Appeal at Cassel, 1st March, 1834 (Strippelmann, iv. 
 1, p. 186) ; Supreme Court at Berlin, 16th July, 1857 (Striethorst, xxvi. 
 p. 131). 
 
 3 Mass6, Nos. 62, 72, 314; Demangeat, on Foelix,ii. pp. 206-7. The bankrupt 
 continues to have a persona standi in judicio till the local bankruptcy begins 
 or a general arrestment is laid upon the property he holds there. Deman- 
 geat, ii. p. 204 ; Judgment of the Supreme Court at Berlin, 11th May, 1858 
 (Striethorst, Archiv. Jahrg. ii. vol. i. p. 291). The judgment of the Supreme 
 Court of Appeal at Cassel is to a different effect, 16th Dec. 1848 (Heuser, 
 iv. p. 167). Since incarceration is only a means of compelling payment from 
 the debtor, it cannot be used against one who can show that his whole pro- 
 perty is in the hands of a foreign court of bankruptcy or a trustee. Burge, 
 iii. p. 778 ; Wheaton, § 88, p. 120 ; Pcelix, i. p. 207, § 89, are of a different 
 opinion, because the beginning of a bankruptcy changes the legal capacity of a 
 person. But, as we have seen, this is not the case, and is not required to 
 attain the end of the procedure. Special privileges, which can only be en- 
 joyed by merchants who are quite solvent, — e.g., the right to appear on exchange, 
 — are denied to a foreign bankrupt (cf. Massd and Demangeat as cited), 
 because, on a reasonable interpretation of the law, all bankrupts, no matter 
 where the process of sequestration depends, are excluded from such privi- 
 leges. 
 
 * Cf. Demangeat, ii. p. 207. 
 
596 [§ 128. 
 
 on foot a general execution of diligence in conformity witli 
 his own law in such circumstances, in order to attach the 
 property which lies within his own jurisdiction.^ This is not, 
 however, to be admitted, in the absence of special legislative 
 enactment, if the bankrupt only possesses isolated assets 
 within the jurisdiction of the foreign judge, or if it is only 
 isolated debtors to the estate who are domiciled there, but 
 is only to be admitted in accordance with the character of the 
 process if the bankrupt possesses a complete collection of pro- 
 perty there, such as a trading house or a manufactory, or a farm. 
 Except in such special cases, the foreign judge must give 
 effect to the foreign arrestment laid on the bankrupt's estate, 
 since there is always an imminent risk that the property will 
 be squandered when the debtor is insolvent — a fact which is 
 ascertained or shown to be highly probable by the decree of 
 the foreign court. The further question, whether the estate 
 or the proceeds realised by a sale of the assets are to be 
 handed over to the court of the domicile where the seques- 
 tration has begun, and to the trustee appointed by the court, 
 is, in the first place, like the question with which we have 
 just dealt, dependent upon whether the judge is bound to 
 institute a special process in conformity with his own law. 
 It is, however, essential that no creditor should have laid on 
 any other arrestment in the meantime,* and no real right 
 
 ^ Cf., e.g., the Prussian Ooncursordnung, 8th May, 1855 (G. S. p. 321, 
 § 292). The B. P. O. of Hanover of 8th Nov. 1850, § 605, permits a separate 
 sequestration to be raised in all cases on the application of any interested 
 creditors. 
 
 ^ So the practice of the Supreme Court of Appeal at Cassel (Dec. S. Trib. 
 H. 0. i. deois. 5, ii. decis. 224) ; Bohmer, Rechtsfalle, i. No. 82, § 22. The 
 more recent practice of England and Scotland lays down that a sequestration 
 avfarded abroad attaches the moveables of the bankrupt ipso jure, and holds, 
 therefore, that any arrestment subsequently laid on is invalid : in real estate, 
 the opinion is the contrary. Burge, iii. pp. 906-20 ; Story, § 409. The practice 
 in America, again, coincides with that stated in the text. Wheaton, § 139, pp. 
 187-88; Story, § 410. The ground adopted to justify the English practice— viz., 
 that the transference of the property to the curators (assignees or trustees) muSt 
 be regarded just as a transference by contract or marriage — would apply to 
 real estate as well ; but, as American jurists remark, the difference is that the 
 transference of the bankrupt's right to the creditors often takes place in 
 irwitum, and, in any case, has no feature in common with the transference of 
 any definite right of the bankrupt. Besides, the English procedure is not by 
 
§ 128.] 597 
 
 should have been acquired which will give a title to object to 
 the transference of the estate to another court. If this has 
 not happened, and if sequestration has been awarded with 
 the concurrence of the bankrupt, this gives the trustee, at 
 the lowest, the right of a mandatary^ : in this character the 
 trustee can bring the estate to a judicial sale and pay in the 
 proceeds to the court of his own country. If the bankrupt 
 has opposed the sequestration, the foreign court must then be 
 satisfied that the conditions, under which any other judgment 
 pronounced by the court where the sequestration depends 
 would fall to be put into execution abroad, exist in the case 
 before them : there will, as a rule, be no difficulty in doing 
 so, in so far as the court of the sequestration is in truth the 
 foruTTi domicilii? 
 
 All secured creditors have a title to resist such transfer- 
 ence f their right is in a question with an arrestment, which 
 gives a mere security right, older and stronger. They have 
 a right to demand that the judex rei sites should decide 
 their claims, or the judex domicilii of any debtor of the 
 bankrupt over whose debt their security is constituted, and 
 should satisfy them out of the funds reahsed by the security, 
 having first, of course, entertained an action to settle the 
 shares which each is to take ; this right they have because a 
 foreign court in determining the order of preference might 
 possibly shut out all application of the lex rei sitce to which 
 they are entitled to appeal, and proceed according to its own 
 
 any means logical, as has already been shown (§ 113 ad fin,) by reference to 
 the doctrine as to the administration of the estate of a party deceased. 
 
 '' Massi, No. 314. See, as to the practice in Hesse-Cassel, Strippelmann, 
 iv. 1, p. 182. 
 
 8 Matters would be different if the bankruptcy procedure began at some 
 place where the bankrupt had, perhaps, a factory, and not at his domicile. It 
 is possible for the bankrupt to have various complete estates in different 
 places, and a different process of bankruptcy may be set on foot at each of 
 
 them if for instance, he has trading or manufacturing establishments in 
 
 various countries. In such a case we must inquire to which of these estates 
 the particular asset found in another country naturally belongs — e.g., whether 
 an outstanding debt was incurred for this or that concern. 
 
 ° Of. as to the practice in Hesse, Heuser, Ann. ii. pp. 534-54. The ordin- 
 ance of 25th April, 1826, introduced some changes to the advantage of 
 foreigners. 
 
598 [§ 128. 
 
 law exclusively, and thus if the estate were transferredj the 
 rights of these creditors might be imperilled. After satisfac- 
 tion of the secured creditors, who may for convenience be 
 cited edictally, and ia opposition to whose claims the foreign 
 trustee and the foreign creditors may interpose to discuss 
 their liquidity and relative priority, the estate must be 
 handed over to the foreign court of bankruptcy under the 
 conditions already laid down. 
 
 The ranking of the various claims will be determined by 
 the law of the court of the sequestration.-"' A law which 
 regulates such ranking is truly an injunction laid upon the 
 judge to satisfy the individual creditors in a certain order ; 
 in so far, however, as the ranking depends on the existence 
 of any security-right and its effect in questions with other 
 competing securities, the law of the court of the sequestration 
 must allow the ranking to be settled by the rules of prefer- 
 ence which obtain in the law of pledge. This is the lex rei 
 sitce in the case of immoveable property and such moveables 
 as are permanently intended to remain in some particular 
 place or which the debtor has not in his possession (goods 
 dehvered in pledge or property laid under arrestment), and 
 the lex domicilii of the debtor in the case of all other 
 moveables.^^ 
 
 It follows from the equality of natives and foreigners' in 
 the eye of the law that the latter can intimate and follow out 
 their claims in the same way as the former. ^^ But if several 
 processes of bankruptcy are in dependence such claims can 
 
 1* Judgment of the Supreme Court of Appeal at Dresden, 28th October, 
 1859 (SeufiFert, xiii. p. 321), and at Rostock, 19th October, 1846 (Seuffert, xi. 
 p. 3). 
 
 ^1 In accord with this, Eodenburg, ii. p. 1, c. 5, § 16; J. Voet, in Dig. 
 XX. 4, § 38 ; Ant. Matthaeus, de Auction, i. c. 21, No. 35 ; Ricci, Eutwurf, 
 pp. 552, 560 ; Bouhier, chap. 32, No. 9 ; Boullenois, i. p. 553 ; Danz Privatr. 
 1. § 53, p. 179 ; Burge, iii. pp. 770-71 ; Foelix, ii. §§ 537-38 ; Story, § 423a. 
 An exception is, of course, admitted, if delivery of the subject can be refused- 
 by reason of some opposing right, or because there is another process of bank- 
 ruptcy depending. As to privileged security-rights in moveables, supra, § 65, 
 note 29. 
 
 12 Of, Foelix, ii. § 539 ; Burge, iii. p. 908 ; Story, § 846, note ; Bayer, Con-i 
 curs. Process. § 21, p. 62. In some local systems we still find particular ' 
 creditors set at a disadvantage, although that occurs rarely now-a^^days. 
 
§128.] 599 
 
 only be considered in so far as they have not been satisfied 
 out of that estate to which they naturally and directly 
 belong. 
 
 We have already said all that it is necessary to say as to the 
 discharge of claims in bankruptcy, and the beneficium com- 
 petenticB which arises out of a cessio honorum, (see §§ 78-79). 
 The rejection of a claim by reason of its not having been time- 
 ously intimated affects, according to the rules laid down above, 
 nothing beyond the property situated in the State where the 
 sequestration is pending, so long as the trustee has not used 
 arrestment over foreign estate of the bankrupt. If, however, 
 the claim was of a kind that could only be competently 
 advanced in the court where sequestration was awarded at 
 the time when it was awarded, a subsequent assignation of it 
 to a foreign debtor would not found a claim of compensation 
 for him against a claim by the trustee, since the concursus 
 of debtor and creditor, which is at the root of a plea of 
 compensation, could only be carried back to a point of time 
 at which the original creditor had already lost his right to 
 make any such claim in the bankruptcy.^^ 
 
 If several sequestrations are awarded in several different 
 countries," every creditor may appear in every one of these 
 proceedings, unless some have a right to a separate seques- 
 tration. But, since a creditor is not allowed to appear, 
 unless he thereby vindicates some interest, no claim can be 
 advanced for ranking and payment, unless he was not paid 
 or not paid in fuU in the process in which he first appeared.^* 
 For the same reason creditors must first make their claims 
 
 ^s Of. Judgment of the Supreme Court at Mannheim, 16th May, 1861 
 (Seuffert, xiv. p. 369). The judgment, in accordance with the principle on 
 which I have founded in the text, regards a sequestration instituted abroad 
 as in itself of no eflfect in this country, but in any event comes to the con- 
 clusion that the plea of compensation should be declared incompetent, because 
 no one pan assign a right which he himself does not possess, and further that 
 one who has a right assigned to him must suflfer all pleas which could have 
 been urged against it as it stood in the person of the cedent to be urged 
 against him. 
 
 1* Or in different provinces. Cf. supra, § 125, note 30 ; Bijhmer, Rechts- 
 falle, vol. i. No. 82, p. 648 ; as to England, see 12 & 13 Vict. c. 106 ; 
 Bep. 32 & 33 Vict, c. 83. See, too, Savigny, § 374 ; Guthrie, pp. 260-61. 
 
 1* Cf. the case given by Striethorst, xxvi. pp. 133-34. 
 
600 [§ 128. 
 
 in the forvm, appropriate to them ; if, then, one possesses 
 a trading establishment in a foreign country, any claims 
 which do not refer to its affairs can only come to be 
 regarded in the sequestration which takes in that establish- 
 ment as an ultimate resource, and must in the first place be 
 made at the domicile of the bankrupt, and, if necessary, the 
 creditors concerned must take measures to have sequestration 
 awarded there. 
 
 The right to challenge^® bargains, or payments made by 
 the bankrupt before the beginning of the proceedings in the 
 sequestration,^' and the nullity of these bargains and payments 
 is simply a retro-active operation of the: law of bankruptcy, 
 and is therefore' primarily dependent Upon that system of 
 law^® which prevails at the seat ■ of the thing affected,^^ and 
 in a corresponding way if the thing affected has no perma- 
 
 '^ See Puchta, Pandekten, § 380, as to the Actio Pwidiana, of the common 
 Roman law. English law has rules quite peculiar to itself. If the real 
 owner has allowed the hankrupt to deal with moveahles (except some such as 
 ships), claims of debt, bills or stocks, so that he passed in the commercial 
 world for the true owner of them, he must as a rule be content to allow the 
 creditors, if the estate of the bankrupt is not sufficient, to apply these in pay- 
 ment of their debts without any regard to the rights of the true owner : this 
 is the doctrine of reputed ownership ; cf. 12 & 13 Vict. c. 106, § 125. A 
 trader or a person in a similar position is held to be bankrupt, and any dis- 
 positions of his property granted by him are null so soon as he has com- 
 mitted an Act of Bankruptcy ; certain exceptions to this rule are made in 
 favour of one in bona fide. Cf. the statute cited, § 126 and Giiterbook ; 
 Bankruptcy according to English law, in Groldschmidt's Zeitschrift fvir des 
 gesammte Handelsrecht, Jahrgang. ii. 1, p. 34. If we compare such rules 
 as these with the rules established by the common law of Rome, it will serve 
 to show the practical impossibility of carrying out the view, by which bank- 
 ruptcy will be universally subjected to the lex domicilii. 
 
 " In some countries the bankruptcy of a trader is distinguished from the 
 insolvency of other persons. It is so in England. Stephen, ii. p. 147 et sej. 
 
 1* This is overlooked in a judgment of the Supreme Court of Appeal at 
 Rostock, 19lh October, 1846 (Seuffert, xi. p. 4), in which it is laid down that 
 a foreigner does not acquire by his business transactions in his own country 
 rights against others who desire to proceed according to the law of this 
 country^ because those persons against whom these preferences are claimed, 
 do not place themselves under foreign law to this effect ! This judgment also 
 proceeds upon the compulsory character of the bankruptcy laws. See, on 
 the other hand, supra, § 33. 
 
 " Bouhier, chap. 31, No. 15. 
 
§ 128.] 601 
 
 nent seat, or is not laid under arrestment, or if the transac- 
 tion challenged is the payment of a sum of money, upon the 
 law of the domicile of the person who has received payment 
 or delivery,^" for any diligence to be done against the estate 
 of the person who has so received payment or delivery must 
 be followed out according to that system of law, and bank- 
 ruptcy is simply a general and sweeping diligence. But, 
 since the contention of the creditors who challenge the trans- 
 action is that the property in question still belongs to the estate 
 of the bankrupt or ought to be brought back into it, they can 
 never claim more than that local law gives them by virtue 
 of which they have the right of using the arrestment — that is, 
 they cannot make any claim beyond what the law of the 
 place of sequestration permits ; in the same way, if property 
 is once acquired and aUenated irrevocably, it cannot be 
 subsequently withdrawn from the person who has acquired 
 it, if the disposer should change his domicile and should 
 thereby bring his estate under the bankruptcy law of some 
 other legal system. 
 
 It is plain that, if bankruptcy prevents the execution of 
 any judgment pronounced in this country, it will be im- 
 possible to give effect to any foreign judgment. ^^ This in 
 
 '"' Judgment of the Supreme Court of Appeal at Liibeck, 15th December, 
 1834 (Seuffert, v. p. 1) : " The capacity of acquiring property in goods com- 
 ihg to hand after declared insolvency is determined, not by the law of the 
 place where they were received, but by the law of the domicile of the 
 person who is said to have acquired it." [By a decision of the Appeal Court 
 of Milan, it is said to be by the law of the bankrupt's domicile (Sottocasa, 
 14th August, 1865).] 
 
 ^1 So long as no separate process of sequestration is begun upon the estate 
 of the bankrupt in this country, or the delivery of the estate in this country 
 to the foreign court has not taken place, it is quite competent to raise a 
 separate action against the bankrupt if he is under the jurisdiction of the 
 courts of this country, —Judgment of the Sdpreme Court at Berlin, 11th 
 May, 1858 (Striethorst, xxix. p. 291). If, however, the bankrupt sued here 
 has no more property at all here free from the control of the trustee or from 
 his arrestments, in my opinion it is incompetent to incarcerate him, since, 
 according to modern legal views, that merely constitutes a particular and a 
 sensible mode of compelling satisfaction of obligations undertaken by the 
 debtor, and must therefore cease if the debtor is innocently unable to satisfy 
 his creditor. The only exception allowed is, if, according to the law of the 
 country, some different meaning must be attached to personal diligence— «.gr., 
 that it is an indirect method of forcing third parties to interpose. 
 
602 [§ 128. 
 
 my view would be the result, even if the execution could be 
 demanded on the ground of a public treaty. The creditors 
 have, by the general arrestment over the estate in this 
 country, acquired a right to exclude a special execution 
 until they are satisfied.^^ 
 
 We must now examine the opposite view, which gives a 
 general operation to a process of sequestration once begun 
 in any country, and demands that the whole estate should 
 be given up to one bankruptcy court — i.e., to the judex 
 domicilii of the bankrupt, or to the trustee appointed or 
 confirmed by that judge. ^^ 
 
 This view, so far as its juristic justification is concerned, 
 is partly based upon the fact that the bankruptcy embraces 
 the whole estate of the bankrupt, and hands it over to the 
 creditors, and that, therefore, just as in a case of universal 
 succession, the lex domicilii should apply ; and partly upon 
 the fact that the object in view is to set various creditors, 
 who all make claims upon the estate as the subject of dili- 
 gence, upon an equal footing, and therefore this process can 
 only take place in one locality, which is the domicile of the 
 bankrupt.^* 
 
 The former ground is certainly wrong ; bankruptcy is no 
 universal succession,^^ for if it were, the creditors would be 
 responsible for the bankrupt's debts, at least to the amount 
 of the estate. The second ground contains a petitio principii, 
 it must first be shown that the bankrupt's whole estate, even 
 what is situated abroad, would for the purposes of diligence 
 be held to be an unuTn quid, and the preferences due to 
 
 22 Cf. Draft Code for the States of the German Bund, § 12 :" If a seques- 
 tration is awarded in any German State, then, in so far as bankruptcy sists 
 the execution of all judgments by the law of that State, no judgments of 
 any other German States can be carried out while it subsists. Even after the 
 winding up of the bankruptcy no judgment can be carried out in this State 
 against the discharged bankrupt if the claims made against him are by its 
 law discharged by a forced agreement, or if the beneficia legis, which the 
 bankrupt as such enjoys through that law, exclude or restrain the use of 
 further diligence." 
 
 23 Dabelow, Bankruptcy Procedure, p. 746 ; Gdnner, Handb. iv. No. 82. 
 ^ Savigny, § 374 ; Guthrie, p. 258. 
 
 2* It depends, for instance, upon the creditors whether particular assets 
 shall go into the general estate or not. - i 
 
§ 128.] 60S 
 
 some creditors, although, they may only affect single assets, 
 are in direct contradiction to equality among the creditors in 
 the sense here implied. 
 
 Again, as a matter of expediency, ^^ it is pointed out how 
 many difficulties are created by awarding various separate 
 sequestrations. These difficulties admittedly do exist, but the 
 opponents of this practice wiU only exaggerate them by the 
 procedure they advocate. The judex domicilii alone is to 
 rank and prefer the creditors, or at least is to determine by 
 the lex rei sitce the preferences which relate to real estate. 
 Thus, again, we find different estates springing up ; the diffi- 
 culty is not avoided ; the difference is that the decision is 
 not given by the judge who is familiar with the local law, 
 but by one who does not know it. If, however, preferences 
 over moveables are ruled by the law of court of bankruptcy, 
 the rights acquired at the place where the thing is situated 
 are invaded,^' and we must remember that it is not only real 
 rights, but personal privileges {jprivilegia exigendi) that must 
 be protected. ^^ But, lastly, if a general and sweeping opera- 
 tion is to be attached to the award of sequestration, trans- 
 actions by the bankrupt, which he enters into abroad and in 
 connection with his property situated abroad, are to be held 
 invalid.^^ But if we recollect that the notices of the award 
 
 ^ Feuerbaeh, Themis, p. 115, thinks that principles of positive law are out 
 of place here, and that considerations of expediency alone must decide the 
 question. He comes in this way to the conclusion that sequestration should 
 be awarded where the greater part of the bankrupt's estate lies, and a sepa- 
 rate process should only take place if the bankrupt has a manufactory or 
 trading house abroad. But, as a rule, the principles of positive law will be 
 found to be the most expedient. 
 
 ^ Take the case, for instance, that a creditor who holds property in pledge 
 is not required by the law of the place where that property is, to give it up 
 to the trustee, while he is required to do so by the law of the bankrupt's 
 domicile. According to our view (p. 597), such an invasion of his right is 
 impossible, if he puts forward his claim. 
 
 2« See the analysis of the Draft Code I. p. 47. 
 
 23 This is the result of the judgment of the Supreme Court of Appeal at 
 Liibeck, 23rd Jan. 1860, and at Cassel, 13th Dec. 1859 (Seuffert, xiv. p. 327), 
 which determine the incapacity of the bankrupt to conclude legal transac- 
 tions on general principles of legal capacity. The former recognises that, 
 where the law of the court of bankruptcy only regulates certain particular 
 kinds of transactions, so as to determine the extent and conditions of their 
 
604 [§ 128. 
 
 of sequestration would naturally be given with most promi- 
 nence only at the place where the court sits, the security of 
 legal rights is imperilled to the uttermost. If, for instance, 
 a foreigner possessed a trading house in this country, and 
 sequestration of his estates were awarded at his domicile, 
 then — without any notice of the sequestration being required 
 here — all payments made by our subjects to the establish- 
 ment here would be thrown out of account in any question 
 raised against the debtors by the creditors claiming in the 
 bankruptcy. 
 
 It may be objected that the view we adopt imperils the 
 rights of the creditors, while the opposite view does not 
 create any greater risk for third parties in another country 
 dealing with a bankrupt who is by the law of his domicile 
 to be held incapable of contracting, than the risk which 
 exists for any parties who deal in a foreign country with 
 persons labouring under any other legal incapacity. But, in 
 the first place, the creditors are quite at liberty either to lay 
 arrestments on the property of the bankrupt, or to raise a 
 separate process of sequestration ; in the second place, other 
 kinds of capacity are much more readily ascertained by any 
 party proposing to contract with another ;^ and, in the third 
 place, the threatened danger is much diminished by the fact 
 that in most cases a person who is legally incapacitated has 
 no considerable amount of property in his hands, ^^ while, again, 
 a person so incapacitated is always bound to answer for any 
 
 effect upon the whole estate, or their liability to be challenged in the joint 
 interest of the creditors, the effect which the material insolvency of either of 
 the parties to a disposition of this special kind, or the formal origination of 
 a sequestration of their property can and shall produce, is not settled solely 
 by the law of the court of bankruptcy, but that substantial consideration is 
 given to the law of the place to which the transaction in question belongs, 
 either in its origin or its effects, or with which the other party is connected, 
 either personally or by property. 
 
 ^ Age and sex offer unmistakeable tokens of what they are ; even the case 
 of the prodigus is different. It is hardly conceivable that a man should 
 suddenly burst out from being a quiet citizen into such extravagances as to 
 need to be placed under curatory ; but sequestration may come very unex- 
 pectedly. 
 
 ^^ See supra, § 52. 
 
§ 128.] 605 
 
 dolus in which he has involved himself,^^ and if such a 
 person claims restitution, a plea of versio in rem will bar his 
 claim, while neither of these remedies are applicable in 
 questions with creditors in bankruptcy. 
 
 By some German treaties the forum, domicilii is made the 
 only competent seat of sequestration, but only under im- 
 portant restrictions,'^ and always with the proviso that real 
 rights, at least over immoveables, should be settled by the 
 lex rei sitce.^^ It must be remembered that there is no 
 security of this kind if there is no treaty, and although we 
 may concede so much in terms of a treaty to a neighbouring 
 State with similar laws of bankruptcy from motives of con- 
 venience, it might be far from advisable in the case of other 
 States, where there is no treaty. The interests of the credi- 
 tors in this country would be in the highest degree endangered, 
 if we were to hand over the estate in every case and without 
 discussion to a distant court. ^^ 
 
 ^2 It may constitute dolus if a, person misleads others into thinking that 
 he is incapable of legal acts by the law of his domicile, or keeps up such a 
 belief on purpose. Of. supra, § 52, note 12. 
 
 ^ The convention between Bavaria and Wiirtemberg, for instance, provides 
 that a separate process of sequestration shall take place — 
 
 First, in favour of creditors on a succession, who, in view of the succession, 
 claim the extraordinary right of setting aside a portion of the estate. 
 
 Second, if the bankrupt possesses, either in the one State or the other, a 
 separate shop, manufactory, or the like, which makes it right that a separate 
 process of sequestration should be originated for behoof of the creditors who 
 have given him credit by reason of the existence of that establishment. 
 
 The treaty between Prussia and Weimar, in article 20, provides : " A separate 
 sequestration is not allowed unless a right to separate the estate recognised by 
 law can be pleaded, — e.g., if the bankrupt has in another State from his domicile 
 a separate shop, work, or establishment of that kind, which creates a separate 
 circle of rights and obligations as a complete whole in itself. Krug, pp. 32-34. 
 
 3* Of. Kiiig, pp. 37-39. The convention between Prussia and Saxony, in 
 article 20, provides : " In the same way, before the estate is surrendered to 
 the court of bankruptcy, all rights of vindication, pledge, hypothec, or other 
 rights conferring a preference, and recognised by the law of the country 
 where the estate is, may be pleaded before its courts as against the assets of 
 the estate found there, and the creditors may operate their own payment from 
 the proceeds of the estate, and hand over to the court of bankruptcy only 
 what remains, while the same court will settle all disputes arising between 
 creditors, or with the trustee in bankruptcy, or in the process of liquidating 
 or succession as to the authenticity or preference due to any claim. 
 
 35 See, too, the grounds of judgment reported by Story, p. 514, note. 
 
606 [ITote AA. 
 
 Note AA, 0% § 128. 
 
 [In considering the principles of the law of bankruptcy, and 
 the decisions of the courts applying these principles in some 
 of the European States, we shall first note the jurisdiction 
 claimed by different countries as entitling their courts to 
 award sequestration of the estates of an insolvent debtor, 
 and thereafter examine the effect which is attributed to an 
 award of sequestration, and particularly how far such an 
 award in one country will be recognised in another, so as 
 either to prevent diUgence being done there against assets 
 lying there, or to make it incompetent to award another 
 sequestration. 
 
 First, then, as regards the grounds on which it is held 
 competent for the court of any country to award sequestra- 
 tion against an insolvent, it may be remarked that the 
 exigencies of commerce have established a recognition of the 
 authority of the courts of another country in matters of this 
 kind, in circumstances which many legal systems would 
 hold insufficient to give jurisdiction for other matters. We 
 have seen that nationality or domicile, or personal service or 
 arrestment, are the usually recognised modes of constituting 
 a jurisdiction over a defender, and that in questions of status 
 a permanent relation between the parties and the country 
 whose courts are called upon to adjudicate is universally 
 required. The sequestration of any person may, in so far as 
 it affects the capacity of disposition, be regarded as being a 
 question of status, but yet the necessity and high convenience 
 of dividing the assets at the place where the claims upon 
 them have arisen, have established a generally recognised 
 rule, that an individual may be sequestrated where he has 
 been domiciled or has traded, a company where it has 
 traded. In England a debtor domiciled there may be adjudi- 
 cated bankrupt on an act of bankruptcy committed either iu 
 England or abroad, and a trader, trading but not domiciled 
 in England, may be adjudicated bankrupt on an act of bank- 
 ruptcy committed by him in England, being such as would 
 in the case of an English trader constitute an act of bank- 
 ruptcy ; a company technically domiciled in England may 
 be sequestrated and wound up there ; a company not techni- 
 
iVote AA.] 607 
 
 cally domiciled, but carrying on trade in England, may be 
 wound up there, but cannot be dissolved by the court. The 
 criterion seems to be that it is under the control of persons 
 domiciled in England, and this criterion has been applied to 
 bring a Spanish railway company, a German mining com- 
 pany, a Mexican mining company, and a Belgian railway 
 company to be wound up in England (Lindley on Partner- 
 ship, p. 1233, and cases cited there). 
 
 In Scotland sequestration may be awarded when the 
 debtor has within a year resided, or had a dwelling-house or 
 place of business, in Scotland ; or in the case of a company, 
 if it has within a year carried on business in Scotland, or 
 had a place of business there ; or in the case of an unin- 
 corporated company, if any partner has resided or had a 
 dwelling-house in Scotland. There seems to be no reason 
 to prevent the Scots courts exercising in the case of foreign 
 incorporated companies the same jurisdiction as the English 
 courts exercise, as noted above ; in the case of any company 
 domiciled — i.e., registered — in Scotland, they have full juris- 
 diction. 
 
 In Germany domicile, or a manufacturing, trading, or iadus- 
 trial establishment, will give jurisdiction in the case of an 
 individual or of a company (§208 of the Bankrupt Code). 
 In Belgium domicile will confer this jurisdiction. 
 
 In France it is sufficient that a company has a trading 
 establishment in France and is under French direction, or 
 that an individual has carried on trade in France, to render 
 that company or individual liable to be declared bankrupt 
 by the French courts (Cie de Chemin de Fer de Nord 
 Ouest de I'Espagne v. Jarousse, I7th July, 1877, C. de Paris ; 
 Samman/u. Souchay et Cie, 20 th May, 1878, C. de Paris; 
 C. de Cass. 19th March, 1872) ; and an English undischarged 
 bankrupt, who is carrying on business in France, may be 
 sequestrated there of new (Devaux' Tr. v. Geisweiler, Trib. 
 Comm. de la Seine, 10th May, 1881). 
 
 Second, as regards the effect of sequestration once awarded 
 by a competent court. Here the principal question for deter- 
 mination is, whether such a sequestration is regarded as 
 universal, and is held to affect the bankrupt's estate wherever 
 it is situated, barring foreign creditors from using dihgence 
 
G08 [Note A A. 
 
 in their own country subsequently to its award, so as to 
 attach assets lying there, and giving the trustee a good title 
 to do diligence and recover that estate, both in the country 
 of his appointment and in other countries. 
 
 In England and Scotland while real estate situated either 
 in one or the other is not aifected by sequestration issuing, 
 except from the courts of that country where the estate is 
 situated, the universality of the bankruptcy is recognised as 
 regards moveables. In Scotland it has been decided that the 
 mercantile sequestration of a bankrupt in a foreign country 
 renders a subsequent award of sequestration in Scotland incom- 
 petent (Goetze v. Aders, 27th November, 1874, 2 R. 150). 
 This decision proceeds upon the ground of the unity of the 
 moveable estate, according to the rule mobilia non habent 
 situm, and determines no more than that the title of a foreign 
 trustee will receive effect from its date, and entitle him to 
 ingather the estate in Scotland, but it is expressly said that 
 questions of preference among Scotch creditors may have to be 
 determined by the law of their own territory. This reserva- 
 tion is in accordance with the doctrine of the text, although 
 the main decision is expressly counter to the expediency of 
 separate sequestrations there maintained. A necessary con- 
 sequence of giving effect to the appointment of the foreign 
 trustee from its date, will be to prevent the subsequent use of 
 any competing diligence by arrestment or the transference of 
 any of the insolvent's property in Scotland. By the law of 
 England, a foreign trustee, while his appointment gives him 
 no title to real estate, or to property for the acquisition of 
 which any particular form of conveyance is required, is 
 entitled to administer all chattels personal and choses in 
 action in England (Westlake, § 125, p. 142) ; even although 
 such a foreign trustee is present in England, the English 
 court will not interfere with him unless it is shown that his 
 absence from the country of the bankruptcy prevents redress 
 from being had there (Westlake, § 127, p. 144). A British 
 creditor obtaining payment of his debt after the beginning of 
 an English bankruptcy, must pay over the amount to the 
 trustee in all cases ; a foreign creditor is only bound to do 
 so if he claims a dividend. Both in Scotland and England a 
 foreign creditor has the same rights and will receive the same 
 
Note A A. J 609 
 
 recognition in bankruptcy proceedings in either o£ these 
 countries as a native. 
 
 In competing bankruptcies within the United Kingdom, it 
 is provided, as regards Scotland, by a statute of 1860 (23 and 
 24 Vict. c. 33, § 2), that the Court of Session may recall a 
 sequestration awarded in Scotland, where a majority of the 
 creditors reside in England or Ireland, or where the Court 
 shall be of opinion that the Bankrupt or Insolvent Laws of 
 England or Ireland should regulate the distribution of the 
 estate (cf. Cooper v. Baillie, 23rd January, 1878, 5 R 564). 
 
 In Austria, the unity of bankruptcy procedure is not 
 recognised, and sequestration even in one province of the 
 Austrian Empire — e.g., Hungary — does not attach moveable 
 property in another province — e.g., Austria proper (Sup. 
 Ct. of Austria, 20th March, 1877). Much less will a foreign 
 bankruptcy be held to have any such effect. 
 
 In Germany, by the Bankruptcy Statute of 1877, foreign 
 creditors have as good a title to appear in bankruptcy pro- 
 cedure as German creditors : it is not necessary to prove the 
 insolvency of a debtor in Germany so as to give a foreign 
 trustee right to sue eo nomine in Germany, or, with the 
 consent of the bankrupt, to ingather assets and realise estate 
 situated in Germany ; but, on the other hand, the foreign 
 bankrupt does not lose the power of administering and dis- 
 posing of his estate from the date of bankruptcy, which has 
 been awarded in a foreign court ; but although he may 
 dispose of that estate or transfer it to his trustee, that is only 
 permissible if no dihgence has been done against it in 
 Germany ; to prevent that, a process of bankruptcy must be 
 opened and a trustee named in Germany ; till then execution 
 is allowed to creditors against assets lying in the Empire, 
 although the foreign assets are affected by a foreign bank- 
 ruptcy, unless recognition of the foreign bankruptcy is 
 effected by a special order of the Chancellor of the Empire. 
 Preferences over real estate are to be ranked and satisfied 
 according to the law of the Empire. A decision of the 
 Appeal Court of CoLq prior to this statute (Sauer v. Wolff, 
 22nd July, 1877) had laid down that a sequestration did 
 not cover estate situated abroad, and that its effect was not 
 to incapacitate the bankrupt from acting, but merely to vest 
 
 2 R 
 
610 [Note A A. 
 
 the trustee with the property, and that this operation could 
 not take effect by force of the decree of any court beyond its 
 own territory. 
 
 The unity of bankruptcy procedure is, however, the 
 principle that regulates international bankruptcies in Italy 
 and Belgium, as we have seen that it does in England and 
 Scotland as regards moveables. 
 
 In Italy it has been laid down, and is settled law, that the 
 divestiture of a bankrupt by a decree of bankruptcy must be 
 allowed to have the same effect in all countries, and inde- 
 pendent diligence after the date of the decree by Italian 
 creditors in Italy will be stopped " This is in conformity 
 with the aim of bankrupt law, which is to facilitate a distri- 
 bution of the bankrupt's estate proportionally among all his 
 creditors" (White v. Mack and others, Ct. of App. at Milan, 
 15th December, 1876). 
 
 The Belgian courts have refused to declare a company, 
 legally domiciled in London, but carrying on business in 
 Belgium, possessed of real property there, and carrjring on 
 undertakings there, bankrupt after a winding up order has 
 been pronounced in London (Belgian Public Works Co., 
 7th August, 1871, Trib. Civ. de Bruxelles). 
 
 The Court of Brussels, on 13th August, 1851, in giving 
 judgment said : " It is a fundamental principle that seques- 
 tration carries its effects into every country where the bank- 
 rupt has estate ; the administration of that estate is one, 
 indivisible and universal, operating upon the whole property 
 of the bankrupt, wherever situated. This principle depends 
 upon the interests of commerce and also upon the nature of 
 things, which alike forbid that there should be in one bank- 
 ruptcy as many different administrations as there are 
 countries where the trader had property." On this principle 
 an arrestment of a debt due in Belgium was held to be inept 
 after the debtor had been declared bankrupt abroad (Wolff v. 
 Coprais' Tr. 29th April, 1874) : the same was held as to the 
 creation of any security which might diminish the available 
 estate (Trib. de Neufchateau, 9th February, 1871). 
 
 By the law of France, a French creditor may require a 
 foreign trader, who has already been declared bankrupt 
 abroad, to be anew declared bankrupt in France if he has a 
 
■JVoteAA.] 611 
 
 trading establishment there : the appointment abroad is evi- 
 dence of the fact of bankruptcy, but French interests must 
 be protected, and the bankruptcy law is a law that touches 
 public order and police (White v. Lamoureux, 7th March, 
 1878, C. de Paris) ; the French courts may appoint a 
 trustee with directions to co-operate with the foreign trustee, 
 but where there are substantial effects in France the foreign 
 trustee will not be allowed to act alone (Tought v. de Stenay, 
 C. de Nancy, 8th May, 1875) ; a foreign creditor will be 
 allowed to rank in France if he has not been satisfied abroad, 
 but there will be a separate sequestration (Vanderstichelen v. 
 Pfeffer, 28th August, 1881, Trib. Comm. de la Seine). The 
 fact of the foreign decree of bankruptcy, and of the nomina- 
 tion of the trustee, will be recognised so that he will be held 
 to be the -proper person to sue and be sued in matters 
 affecting particular assets of the bankrupt's estate in France : 
 for this he requires no confirmation at the hands of the 
 French courts (Lublin v. Possel, 20th December, 1876, Trib. 
 Comm. de Marseilles; C. de Paris, 22nd February, 1872; 
 Haussen v. Delorme, C. de Paris, 14th December, 1875). 
 But where a trustee appointed abroad proposes to do diligence 
 on French estate, to take decree against some French subject, 
 or to use his position as trustee to some practical end, he 
 must obtain an exequatur (Haussen v. Delorme, ut supra, C. 
 de Paris, 28th January, 1873 ; Colpin v. Des Granges, 21st 
 December, 1877, Trib. Civ. de la Seine). Without this he 
 can do no diligence. A French creditor, too, is allowed to 
 use diligence — e.g. , arrestment — over moneys found in France, 
 in order to secure payment to himself of dividends that have 
 yet to be declared in a foreign bankruptcy (Maynard v. 
 Vernhes, 13th August, 1875, C. de Paris); but a foreign 
 bankruptcy is recognised to the effect that, where a foreign 
 bankrupt was sued in France, he was allowed to plead his 
 foreign bankruptcy so as to sist proceedings against himself, 
 that he might show what was the state of the foreign bank- 
 ruptcy, and prove his allegation that by allowing the action 
 to proceed in France injustice would be done to the great 
 body of creditors (Borelli v. Pagliano, Trib. de Comm. de 
 Marseilles, 7th December, 1876). This does not, however, 
 contradict the other decisions which determine that where 
 
612 [iVofe AA, § 129. 
 
 there is any estate truly of a separate nature — e.g., a trading 
 house — that then there must be a separate bankruptcy 
 process in France. 
 
 The law of America is identical with that of Austria 
 (Wharton, § 390).] 
 
 £. SuMMAEY Processes and Diligence upon Contkacts. 
 §129. 
 
 It is of course obvious that a summary process which is 
 at variance with the ordinary methods of procedure can 
 only take place under the conditions which are recognised 
 as admissible at the seat of the court applying it.^ 
 
 On the other hand, it seems to be doubtful, when the 
 place of the court exercising jurisdiction in some question 
 arising out of a contract does not coincide with the place of 
 the contract, whether the defender can be compelled to submit 
 the issue to be tried by a summary process, unless that form 
 of procedure would be employed at the locus contractus also. 
 The answer to this question must depend upon whether the 
 law of the court derives the applicability of a summary pro- 
 cess from some bargain of parties, which may be a tacit 
 bargain, that speedy diligence should follow upon their con- 
 tract (parata executio), which is certainly the case in Ger- 
 many by the common law as regards summary processes 
 upon liquid documents of debt,^ or whether it is merely the 
 nature of the proof adduced by the pursuer that determines 
 the question. In the former case, if the defender objects, a 
 summary process is only admissible if it should be the fact 
 that the law of the place of the contract enjoins it.^ In 
 the latter case, it depends entirely upon the law which regu- 
 lates the court. 
 
 1 Molinffius, in L. 1, 0. de S. Tr. ; Burgundus, v. 1 ; Huber, § 7 ; Hert, iv. 
 69 ; Christianseus, Deois. vol. i. deois. 283 ; Hommel, Ehaps. Qusest. vol ii. 
 obs. 409, No. 10 ; Boullenois, i. p. 253 ; Merlin, Questions voce Authentique 
 Acte, § 2 ; Massi, No. 269. 
 
 2 Cf. Briegleb, History of Diligence (Geschichte des Exeeutionprocesses). 
 
 3 Golems, de Proc. Execut. ii. o. 3, Nos. 21-23 ; Marianus Socinus, deforo 
 eom^eUnti, ix. 2 ; Bald Ubald, ad L. 1, 0., ne filius pro patre, 4, 13, No. 10 ; 
 Alderan Mascard. Concl. vii. No. 80 (as regards the exclusion of peremptory- 
 objections), are generally of this opinion. 
 
§§129,130.] 613 
 
 The laws of some countries allow, in the case of those obli- 
 gations which are undertaken by certain public documents, 
 immediate execution to compel the prestations contained in 
 them. Such obligations must always be considered as arising 
 upon contract.* These documents cannot enjoy any greater 
 influence abroad than belongs to them by the law of the 
 place where they originated, and by the intention of parties.^ 
 But just as little as a foreign judgment can a public docu- 
 ment executed abroad justify any officer charged with the 
 execution of diligence*- ' in carrying it out. 
 
 VII. Appendix. — Position and Rights of Persons entitled 
 
 TO PLEAD ExTEA-TeKRITOEIALITT, AND OF FOREIGN 
 
 Sovereigns and Governments as Suitors. 
 
 §130. 
 
 The compulsitors of the courts of a country, in which a 
 person entitled to plead extra-territoriality happens to be, 
 cease to have any effect in questions with him. The forms 
 of judicial procedure which would apply if he were still 
 in the country of his domicile must be observed ; and on 
 that account citations, unless in the case of a special renun- 
 ciation of the privilege,^ seem only to be competent according 
 to diplomatic forms. Judicial procedure, however, which 
 might take place even although the person concerned were 
 not actually in the State in question, is not tied up to any 
 particular forms or conditions by his position. Real actions, 
 
 * Of. Alber. de Rosate, lib. i. qu. 18, § 2. 
 
 ^ Mass^, No. 330. 
 
 « Pardessus, v. No. 1487 ; Gand, No. 622. 
 
 ^ In relation to the diligence of arrestment, a judgment of the Supreme 
 Court at Berlin, 11th June, 1859 (Striethorst, xxxii. p. 118),remarks : "Every 
 use of arrestment alters the rights and duties of the arrestee in a way which 
 cannot be determined by the-laws of any other territory, nor by the orders of 
 a court to which he is not subject." 
 
 1 Ambassadors need the consent of their sovereign to any such renun- 
 ciation (Heffter, § 42, p. 84, note 5). If the ambassador is in the country of 
 the sovereign who accredits him, citation may take place through thexonrts 
 of that country, for there he has no privilege of extra-territoriality. 
 
614 [§ 130. 
 
 for immoveables especially, may be raised in foro rei sitce ; 
 and the forum contractus, or even the jorum, arresti? is not 
 excluded, if it is always kept in view that, in order to found 
 any of tbese forms of jurisdiction, it is never possible to use 
 the fact of the presence of the person entitled to tbe privi- 
 lege, or the presence of any property in his possession, to 
 which the privilege also applies,^ as a ground for the juris- 
 diction. Such a person must, however, always fulfil obliga- 
 tions which he undertakes as a pursuer — e.g., the obligation 
 to pay expenses ; and a native of this country may require 
 caution for expenses from him, just as from any other 
 foreigner.* 
 
 There is no doubt that foreign sovereigns and foreign 
 States may appear as pursuers in actions ; but it is disputed, 
 on the other hand, how far they are entitled to appear as 
 defenders. It seems a sound view to distinguish the case 
 where some obligation of the sovereign or of the State is 
 called in question, which depends upon an act that is com- 
 petent only to the chief magistrate of the State, or upon 
 formal law, from the case where the obligation rests upon a 
 legal relation in which any private person may be engaged, 
 and which cannot be referred to any public law. In the 
 former case, we shall reject the competency of foreign courts f 
 in the latter, only allow their jurisdiction to be exercised 
 under the same conditions as those on which it would be 
 founded against any private individual,^ — without prejudice, 
 however, to the claims of extra-territoriality.^ For instance, 
 a creditor could not sue a foreign Government on account of 
 
 2 Vattel, iv. §§ 114-15 ; Wheaton, § 227, p. 287 ; Bynkershoek, Btforo Lega- 
 torum, ix. § 95. ; Kliiber, § 210 ; Heffter, § 42, vi. 7 ; Gand, Nos. 71-2. 
 
 3 See on that point, Vattel, ii. § 113 : " Toutes Us choses qui appartiennent h 
 la personne du ministre, en sa qualiU de ministre public tout ce qui sert it 
 son usage, tout ce qui sert A son entretien et a celui de sa maisonj tout cela 
 participe h, I'indipendence du ministre et est absolumenl exempt de toute juris- 
 diction dans le pays." 
 
 « Cf. Heffter as cited ; Vattel, iv. ch. 8, § 111. 
 
 ' Story, § 542ci. 
 
 " Cf. Vattel, ii. §§ 213-14 ; Gand, No. 12. 
 
 ' The result of this is that foreign ships of war can never be laid under 
 arrestment, while foreign war material not attended by an escort, such as 
 horses bought in any country, may be so attached. 
 
§130.] 615 
 
 some loan contracted by it, and resting upon a financial reso- 
 lution or act ; whereas a merchant who had supplied goods 
 to a foreign Government could, under certain circumstances, 
 sue in the forum, contractus. 
 
 If a foreign Government requires from our courts any- 
 legal remedies, it must subject itself to the conditions which 
 are required by our law for this purpose, and, in par- 
 ticular, it is bound to find caution for payment of expenses.^ 
 
 The opposite view,^ according to which no Government 
 can be sued in foreign courts except in real actions as to 
 immoveables in the forum rei sitce,^" does, in truth, surrender 
 the rights of its own subjects entirely to the mercy of the 
 foreign sovereign, and gives him privileges which are not 
 enjoyed by the sovereign and the Government of its own 
 country. It is incorrect to say that the view we have taken 
 is at variance with the independent position of States. ^^ 
 If any foreign Government desires to possess property in 
 this country hke a private person, it must share the obliga- 
 tions incumbent upon such persons. An undertaking exe- 
 cuted by a foreign Government in our territory, with consent 
 of our Government — e.g., a railway — cannot, however, be 
 regarded as a private undertaking, if a similar undertaking, 
 executed by our own Government, would be considered as one 
 of our public works. If, then, a private person cannot sue 
 in the latter case for the removal of the undertaking, neither 
 can he in the former case.^^ 
 
 ; ^ Mass6, No. 248, and judgments cited there. Poelix, i. § 217. 
 
 9 Mailher de Ohassat, No. 186 ; Foelix, i. § 215. 
 
 1" Cf. the English statute, 7 Anne, c. 12 (Blackstone, i. p. 456). 
 
 " To the opposite effect, see especially Demangeat, i. p. 418. It seems as 
 if the judgments of the French courts cited by Foelix referred solely to cases 
 in which the foreign Government did not contract as a private person. In 
 the case decided by the Court of Cassation, 22nd Jan. 1849, the question 
 raised was as to the right of a Frenchman to sue a foreign Government, he 
 having held a public position under that Government, and having received 
 salary from it. Cf. Gand, No. 17. 
 
 12 Judgment of the Court of Brunswick in deciding a question of jurisdic- 
 tion, 26th May, 1857 (Zeitsohrift fiir Rechtspflege in Braunschweig, 1857, 
 p. 182). The Royal Hanoverian General Board of Direction of Railways 
 and Telegraphs was the defender. The question was as to the construction 
 of the Southern Hanoverian Railway; 
 
616 [STote BB. 
 
 Note BB, ow§ 130. 
 
 [The English cases on this subject are collected in Mr. 
 Westlake's book, pp. 211 et seq. ; some of these and some 
 decisions of foreign courts have already been referred to here 
 (cf. supra, § 115, note, pp. 4s92 et seq.) 
 
 The distinction between the contracts of a sovereign and his 
 representatives in their public capacity, and the property 
 belonging to them for public services, or employed by them for 
 these services on the one hand, and the contracts or property 
 of the same persons in their private capacity, used by them 
 for the ordinary affairs of commerce, has been taken distinctly 
 in France and America, and has been advanced in England 
 by Sir R. Phillimore, although his opinion has not been 
 received with much favour in later cases. 
 
 That a foreign Government or sovereign cannot be sued in 
 the courts of another country, and that this exemption 
 extends to the ambassador and his suite, and even to con- 
 suls in the discharge of official duties, is the primary rule ; 
 and from this it follows that property belonging to such 
 privileged persons cannot be attached. This rule is settled 
 in England by 7 Anne, c. 1 2, § 3 ; and by such cases as the 
 Magdalena Steam Navigation Company v. Martin, 1859, 
 2 E. and E. 94, 28 L. J. (Q. B.), 310 ; Parlement Beige, 
 1879, L. R. 4, P. D. 129 ; Duke of Brunswick v. the King 
 of Hanover, 1844, 6 Beav. 57, and 2 H. of L. 20. In the 
 case of the Parlement Beige, Brett, J., in delivering judg- 
 ment, said : " As a consequence of the absolute independence 
 of every sovereign authority and of the international comity 
 which induces every Sovereign State to respect the independ- 
 ence of every other Sovereign State, each and everyone declines 
 to exercise by means of any of its courts any of its territorial 
 jurisdiction over the person of any sovereign or ambassador 
 of any other State, or over the public property of any State 
 which is destined to its public use, or even the property of 
 any ambassador, though such sovereign, ambassador, or pro- 
 perty be within its territory and subject therefore, but for the 
 common agreement, to its jurisdiction." In this case the Court, 
 reversing a judgment of Sir E,. Phillimore, held that they 
 were precluded from inquiring into the facts of the employ- 
 
MteBB.] 61.7 
 
 merit of a vessel which had caused damage to an English 
 ship — i.e., from inquiring whether she was mainly employed 
 in commerce or not, by a declaration of the King of the 
 Belgians that she was a public vessel and in his possession as 
 sovereign. 
 
 This general rule is approved in France (Cour de Paris, 
 23rd August, 1870 ; Cour de Nancy, 31st August, 1871) ; 
 these decisions establish that a foreign government cannot 
 be sued in France, and this is confirmed by a decision of the 
 Cour de Paris, 15th March, 1872, where a Parisian jeweller 
 sued the Emperor of Austria and the other representatives of 
 the Emperor Maximilian of Mexico for decorations, crosses, 
 &c., suppUed for the use of the Court and miUtary establish- 
 ment of Mexico. These furnishings were held to have been 
 made for State purposes, and not therefore to found an 
 action for their price in the French courts, which would in 
 the ordinary case of a private person have had jurisdiction. 
 The Belgian courts (Trib. Civ. de Bruxelles, 3rd November, 
 1870), in a suit at the instance of La Banque de Credit 
 Foncier et Industriel against the Emperor of Austria, as 
 guardian of the minor children of the Princess of Tour and 
 Taxis, held that they could not entertain a suit against a 
 foreign sovereign ; that that quality was inherent in him, and 
 that he was necessarily invested with the privileges of extra- 
 territoriahty. 
 
 A military attache has been held entitled to the same 
 privileges in a suit against him for furnishings (Dientz v. de 
 la Jara, Trib. Civ. de la Seine, 31st July, 1878) ; and the 
 French courts have also held, in the case of the envoy of the 
 Eepublic of St. Martin, that no arrestment can be used of 
 the goods of a foreign plenipotentiary. 
 
 But while the general rule is as has been stated, an 
 exception in accordance with the doctrine stated in the text 
 is allowed where the soverign or his representative acts in a 
 private capacity ; in a suit at the instance of the brothers 
 Mellerio, jewellers in Paris, against Queen Isabella of Spain, 
 for the price of jewellery supplied both before and after the 
 revolution of 1868, which drove her from the throne, the 
 Cour de Paris (3rd June, 1872) held that as the Queen had 
 ordered and used the goods in a private capacity she could 
 
618 [MteBB. 
 
 be sued. In the American court, in tlie cases of tlie United 
 States V. Wilder (3 Sumner, U.S. 308), and the Schooner 
 Exchange v. M'Faddon (7 Cranch. U.S. Supreme Court 
 Eep.), a distinction is taken between the public and the private 
 property of a State, and two exceptions are indicated as existing 
 to the general rule as to the non-liability of foreign SoTereign 
 States to be sued ; the first being where the State engages 
 in trading, the second where it is possible, by attaching 
 property, and thus proceeding in rem to avoid the indignity 
 and embarrassment of personal service. These grounds of 
 judgment are adopted by Sir K. Phillimore in the case of the 
 Charkieh (7th May, 1873, A. and E., vol. iv. p. 59). The 
 possession of real property in England creates an exception 
 by giving scope for proceedings in rem, (Taylor v. Best, Jervis, 
 C. J. 14, C. B. 487, 522). Cf also Lord Brougham's opinion in 
 the case of the Duke of Brunswick v. the King of Hanover, 2 
 H. of L. 24. The secretary of a legation may waive his 
 privileges (Taylor v. Best), but it is questionable whether a 
 sovereign could (cf. Belgian decision quoted supra in the case 
 of the Emperor of Austria). The tendency of the English 
 coiirts, however, is to be very chary of admitting any such 
 exceptions (cf. the Parlement Beige, swpra). 
 
 A foreign sovereign can, however, sue in a foreign country ; 
 and where " a fund is in the Court of Chancery, that court 
 may proceed to administer it even although a foreign 
 sovereign may be interested in it, and may not think fit to 
 come before the court in a suit relating to it," per Lord 
 Cairns, C. in Larivi^re v. Morgan, 1875, L. K. 7, E. and I. 
 A. 423. But although the Court will interfere so as to pre- 
 vent a foreign government from taking possession of a fund 
 to which they have no title, they wUl not pronounce any 
 order against them to compel specific performance of a con- 
 tract, nor entertain the suit unless a trust or some right of 
 property or hypothecation in the fund be proved. See 
 Westlake, p. 216, § 183. The principle is explained in the 
 case of Smith v. "Weguelin, 1869, L. K 8, Eq. 198, where 
 the Court of Chancery was asked to pronounce an order 
 against the agents of the Peruvian Government ordaining 
 them to pay the proceeds of a quantity of guano lodged in 
 their hands by that Government to certain bondholders, the 
 
mteBB.] 619 
 
 government having contracted witli the bondholders that 
 the loan and interest should be met in that way. The case 
 of Gladstone v. Musurus Bey, 1862, 1, H. and M. 495, was 
 cited, but in giving judgment it was said by Lord Romilly : — 
 " In that case the court did not enforce the specific perform- 
 ance of any contract between the foreign Government and the 
 EdgHsh company, nor did it assume any power to do so, but 
 as an English company had deposited a sum in the hands of 
 a third party to await a certain result, the court inter- 
 posed directly to prevent the foreign Government from taking 
 possession of this fund until it had established that, according 
 to the contract with the English Government, it was entitled 
 to do so. . . . AU that it did was to prevent the foreign 
 Government from dealing with the fund as its own before it 
 was shown that the amount was forfeited." The order asked 
 was refused in respect that there was no hypothecation of the 
 fund such as to admit the jurisdiction of the court. 
 
 As a necessary condition of the effective administration of 
 any fund by the Court of Chancery, it must be shown that 
 there is some trust created in the agent who holds the fund, 
 or that the fund is hypothecated or is the property of the 
 claimant ; this is the kind of jurisdiction which Lord Camp- 
 bell (Duke of Brunswick v. King of Hanover, 2 H. of L.), and 
 Lord Langdale (ib. 6 Beavan), professed themselves as ready 
 to sustain ; how difficult it is to establish any such trust, 
 hypothecation, or property may be seen from the case of 
 Larividre v. Morgan quoted above, reversing a decision 
 reported in L. R. 7 Ch. 550, and the cases cited by 
 Westlake, sv^. cit] 
 
Jiftf) part 
 
 CRIMINAL LAW. 
 
 I. HisTOEicAL Development. 
 
 §131. 
 
 We have already noted tliat no rules for modem criminal inter- 
 national law can be drawn from the Koman or the Canon law.^ 
 
 The inquiries, too, of the Italian jurists of the Middle Ages 
 have in this department a comparatively trifling value for us. 
 Possessed by the idea of a universally valid law for the 
 whole world, which they called jus commune, in relation to 
 which the criminal code of any particular territory seemed to 
 be merely a set of special rules, they, for the most part, range 
 the whole subject under a discussion of the competency of 
 the jurisdiction of this or that judge, a point of view which 
 is of no great importance in public law. 
 
 In accordance with this idea, all crimes upon the one hand 
 committed by foreigners in this country would be subjected, 
 upon the ground of the forum delicti commissi, to the magi- 
 strate of this country ; it seemed useful, however, to extend 
 the forwm doTnicilii which existed for all personal actions, in 
 
 1 The best special treatises on this subject, including the question of extra- 
 dition, are the treatises of Berner and V. Mohl, already cited, in -which the 
 whole literature of the subject is thoroughly utilised. Berner deals rather 
 with the criminal, and Mohl with the international aspect with special refer- 
 ence to extradition. Foelix, in this part of his work, does little more than 
 furnish what is certainly a magnificent collection of materials. 
 
§ 131.] 621 
 
 the first place to the formal action for penalties sued by the 
 injured person,^ and thereafter to the official inquiaitio which 
 took the place of these actions ;^ some punishment, accord- 
 ing to their theory, must be imposed by the jus commune, 
 and by whom- it was inflicted seemed a point of little 
 importance, which might be settled by considerations of 
 expediency. These considerations recommended that a State 
 should not give up its own subjects, while no crime should go 
 unpunished ; the former, because the exercise of jurisdiction 
 was a privilege guarded with jealous care, and one that 
 brought with it no small profit by way of fine and frequently of 
 confiscation ; the latter because so small, and so much divided 
 were most of the Italian territories, that it would otherwise 
 have been impossible to maintain general safety and order. 
 
 Where, however, they had to deal with any matter which 
 was punishable merely by some territorial law, and not by 
 the jus comTYiv/ne, or where the law of the criminal's domicile 
 imposed some different punishment from that awarded by 
 the law of the place where the act was done, then the Italian 
 jurists found themselves upon the same ground as that upon 
 which alone modem jurisprudence stands. 
 
 Here opinions were divided. Some were desirous, upon 
 the analogy of contract relations, that the rule of the lex loci 
 actus there adopted should rule,* while others held that the 
 rule must be settled by the duty of the judge to decide 
 according to his own law, irrespective of the place of the crime, 
 and were often induced to consent to be guided by this rule 
 owing to the difficulties so often connected with the applica- 
 tion of the lex loci delicti commissi.^ It was, however, 
 recognised that penal rules might by statute be enacted to 
 regulate crimes committed by natives beyond their own terri- 
 tory, and that the judex domicilii was bound to apply these. 
 
 2 See, however, Kleinschrod, Archiv. de3 Criminalreohts, 1807, p. 381. 
 
 ' Cf. Farinacius, Praxis et Theoria Criminalis, lib. i. tit. 1, de inquis, 
 Qujest. 7 nums. 19-20. Angelas Aretinus, De Malef. Ruhr, haec eat qutedam 
 inquis, num. 83 ; Jul. Clarus, Sentent. L. v. S. fin. qusest. 38, num. 1 ; and 
 Bartol'us, in L. 1, 0. de S. Trin. num. 47. 
 
 * Cf. Bartolus, 1. c. num. 48. Clarus, I. c. quoest. 85. 
 
 * Paulus, de Oastr. ad L. ult. D. de jurisdict. num. 7 ; Cf., too, Cinus do 
 Pist, in L. 1, 0. de S. Trin. num. 3. 
 
622 [§ 131. 
 
 and where acts were not proMbited by tbe jus corrumune, the 
 only requirement was that it should be determined whether, 
 according to the intention of the lawgiver, the act in question 
 should be punished only if it was committed in his own 
 country by one of his own subjects, or even where one of 
 these subjects had committed it in a foreign country.^ 
 
 In that state of opinion the view, started by a few doctors 
 of law, that certaia crimes which would imperil the safety of 
 the whole Christian world should be obnoxious to punish- 
 ment everywhere, was plainly cast aside,''' since it was only 
 the judge of the criminal's domicile, or of the place of the 
 crime, that possessed the necessary jurisdictio, and an excep- 
 tion could only be admitted in the case of vagabonds, who 
 were ia civU. suits as well Uable to be sued wherever they 
 were found.* 
 
 It was a result of this theory, that a judgment either of 
 acquittal or condemnation pronounced by a competent court 
 and carried out, was recognised even by the court of another 
 territory, unless the judge of the former had proceeded 
 irregularly — e.g., had in violation of his duty inilicted too 
 lenient a punishment upon the convict. 
 
 A pardon, on the other hand, was held to be a mere 
 renunciation, and therefore was good only for the jurisdiction 
 of the sovereign who gave it, and could accordingly have full 
 effect in a foreign territory only if the place of the delict 
 and the domicUe of the criminal were subject to the same 
 sovereign, a limitation which might also be justified upon 
 grounds of expediency, looking to the abuses of the preroga- 
 tive of mercy that occurred so often in the Middle Ages.^ 
 
 " Bartolus, 1. o. ; Clarus, 1. c. qurest. 85 ; Paulus, de Castr. 1. c. 
 
 1 Cf. Parinacius, 1. c. num. 28. 
 
 ' Clarus, 1. c. qusest, 38, num. 7. Placentin would have applied the rule 
 " Ubi te invenero, ibi te judicabo to all criminals, because the delinquens was 
 in the same position as a debitor fugitivus. See, on the other hand, Gandinus, 
 De Malef. Kubr. de furibus et latron ; Bartolus, 1. c. num. 44, says too, " Si 
 judex loco ubi civis mens offenditur, offensam non vindicat, tunc fieri potest 
 statutwm contra offendentem extra territorium." Baldus Perus, in L. 1, 0. de 
 S. Trin. No. 24, lays down the rule that a,forensis who injures a native can- 
 not be brought to punishment at the domicile of the latter. 
 
 " Parinacius, 1. c. num. 26, qusest 7, num. 27. A judgment of condem- 
 nation pronounced by a foreign judge should, not be put in force, at least until 
 
§ 131.] 623 
 
 As regards extradition (remissio), the rules of tlie Roman 
 law, by wliicli the criminal must, as a rule, be handed over 
 to the judex loci delicti commissi, were not considered ap- 
 plicable to the relations of courts of separate territories. It 
 was rather held to be a rule that might be exercised in the 
 option of the princeps, in whose territory the criminal might 
 happen to be, but would never be allowed by the princeps 
 or judex dom,icilii, since the theories of that time laid it 
 upon a judge as his first duty to maintain his own jurisdic- 
 tion.!" 
 
 It was in harmony with the Germanic system of personal 
 rights that the forum doviicilii should be set up as that which 
 should principally be recognised, and as a matter of fact this 
 was for some time held in France to be exclusive.^^ Although 
 therefore, as the different territorial powers grew stronger, 
 and different countries were more and more completely shut 
 off from one another, it was necessary for the sake of main- 
 taining peace to introduce the forum, delicti commissi, which 
 was approved by the authority of the Roman law, and had 
 already been recognised in the land law of Saxony,i^ yet the 
 forum domicilii was as strongly implanted as the other,^* so 
 that the question was determined according as the judex 
 domicilii or the judex loci delicti commissi first seized the 
 criminal. 
 
 But along with the forum domicilii and the forum delicti 
 commiissi, the German criminal lawyers of the sixteenth and 
 seventeenth centuries set up the forum, deprehensionis which 
 had been rejected by the ItaUans, a theory which it was 
 all the easier to adopt as most criminal offences were held 
 to be as much crimes against the law of the empire as against 
 those of the different territories composing it, and many 
 
 after the production of the whole procedure and documents, " ut cognosci 
 posdt de validitate et justitia dictce sententice," so that the sentence does not 
 enjoy the effect of law. Of. Farinacius, 1. c. qusest. 11, num. 46. 
 i» Farinacius, 1. c. qusest. 6, num. 30, num. 42. 
 
 11 H61ie, p. 497. 
 
 12 III. 25. See iii. 26, as to the special jurisdiction of the sheriffs. 
 
 13 Gloss, to the Saxon Land Law, iii. 79 ; Carpzovius, Part iii. qu. 110, 
 S9 says " primum forum in criminalibus est forum domicilii." See G. L. 
 Boehmer, § 7. 
 
624 [§ 131. 
 
 imperial statutes expressly made it the duty of the court in 
 whose jurisdiction the criminal was apprehended ^* to adjudi- 
 cate upon his crime and to punish it, and lastly, because in 
 questions as to whether the forwn delicti comm,issi or the 
 forwm domicilii should prevail, the fact of apprehension was 
 made to decide the question. -^^ 
 
 It was about the middle of the seventeenth century that 
 doubts first began to be raised as to this treatment of the 
 subject, which did not harmonise with the existence of dis- 
 tinct and independent sovereign States. All admitted that 
 dehcts committed within the territory of any State, must be 
 punished in that State ; but there was no one prevailing 
 view as to the question how far delicts committed in a 
 foreign country fell under the same jurisdiction.-'* 
 
 There was, however, something like a consensus of opinion 
 against the view that there was any obligation to give up 
 fugitive criminals to another State.^'^ 
 
 As a practical question, there was no occasion for the 
 adoption of that system, seeing that a forum, deprehensionis 
 was fully recognised and also because the same acts were 
 liable to be punished in the different States according to a 
 common system of law, and any exception there might be 
 was merely with reference to some prohibitory regulation of 
 police which the foreign judge considered it no part of his duty 
 to fulfil.^^ To allow its own subjects to be surrendered would 
 also have contradicted the original theories of Germanic juris- 
 prudence, in conformity with which every man laid great 
 weight upon being tried by his fellows. The special privileges 
 which cities frequently obtained and in virtue of which their 
 
 "Cf. Keichsabsolieid, 1559, § 26; Eeiohspolizeiordn. 1577, tit. 23, § 2 ; 
 G. L. Boehmer, §§ 8-10 ; Zacharia, im Arohiv. D., C. E. 1852, p. 35 ; 
 Tittmann, pp. 4-6. 
 
 '' Farinacius, qu. 6, n. 53 : " Gaptura personm prcefertur verbali citationi." 
 
 1^ On this subject see the exposition of the history of the doctrine in 
 Halschuer, pp. 51-3, 
 
 ^' Cf. Carpzov. as cited, § 53 : " Remissiones ddinqmntium, ubivis fere 
 locorum in desiietudinem abieruntj" ecnd ioi the latest times of the empire, 
 Leist, Lehrbuoh des Teutschen Staatsrechts, 2nd edit. § 167. 
 
 1' Boehmer, § 15 : " Qu(b vera cwiwm actiones ex partieularibus eujusdum 
 territorii rationibus pro punilibus declarantur, de iis territorii alieni judex 
 poma/m swmere non obligatur ib." 
 
§ 131.] 625 
 
 citizens could not be summoned to plead either in civil or 
 criminal matters beyond the bounds of the city, give distinct 
 testimony on this point. ^^ There are, however, cases of 
 treaties for the extradition of criminals,^* and it frequently 
 happened that extradition was guaranteed without any special 
 treaty, upon an assurance of reciprocity.'^^ 
 
 The only historical result we gain, is that all crimes^^ com- 
 mitted within the territory of the State may be punished by 
 the law of that' State, although a foreigner may transgress 
 certain special prohibitory laws in excusable ignorance, or a 
 special statute bind only permanent subjects, exceptions 
 which are really only apparent. This is, however, the only 
 undisputed rule ; more recent systems have, as we shall see, 
 adopted the most various principles. Any results which we 
 may have gained through the foregoing inquiry have no 
 substantial interest except for the legislator. They can only 
 so far be practically applied as there may in particular States 
 be a lack of express legislative enactments for the punish- 
 ment of crimes that have some international aspects, or a 
 lack of undeviating practice to take the place of such 
 enactments, or in such particular cases as are not covered by 
 these rules. ^' ^* 
 
 19 Boehmer, § 8. 
 
 2" Such a treaty was concluded in 1617 between Brandenburg, Pom- 
 merania, and Mecklenburg. See, too, in the latest days of the Empire, the- 
 convention between Hanover and Brunswick of 1798. Cf. Marquerdsen,. 
 §51. 
 
 21 Proceeding systematically, our remarks upon extradition will first b& 
 given in discussing the law of criminal procedure. For the sake of historical 
 connection they are, however, alluded to in advance. 
 
 22 See infra, § 145, as to the exception in the case of extra-territoriality. 
 
 23 The last often occurs. Cf. the inquiries in §§ 141-42, cases which are not 
 often specially provided for by statute. 
 
 ^ Older authors speak of a voluntary subjection of foreigners to the law 
 of the place of the act. But criminal law, upon the one hand, cannot be 
 founded upon any voluntary subjection ; and on the other, the end of this 
 argument would be, that any one who did not voluntarily come to the terri- 
 tory, but came as a prisoner, would not be bound by the criminal law of that 
 country. See, on the other hand, CErstedt on the Principles of Criminal 
 Law, i. pp. 137-38. 
 
 2 S 
 
626 [§ 132. 
 
 II. Different Theories. 
 
 § 132. 
 
 The following theories appear in different legislations, and 
 in the works of different authors : — 
 
 1. The theory that a criminal statute is limited to the 
 territory for which it was enacted, and that any act committed 
 in another country is beyond its influence.^ 
 
 The principle of territoriality is founded upon a proposi- 
 tion which all recognise, but which, if more closely examined, 
 cannot be proved, but must be postulated — viz., that every 
 State has the right of punishing criminal acts which 'have taken 
 place within its own territory, from which it foUows directly 
 that each must recognise the authority of its neighbour, 
 which rests upon the same foundation, and will not, there- 
 fore, attempt to extend its own authority to acts done in 
 another country ; or that the effect of all laws is confined to 
 the territory for which they were enacted, and that, although 
 in private law, from considerations of equity, exceptions may 
 be recognised, there can be none in criminal law, where 
 such considerations have no place. 
 
 But the first proposition is as inadequate to support this 
 conclusion as the second. Although the State cannot im- 
 mediately compel its own law to be- respected in foreign 
 territory, yet the respect due to the sovereign authority of 
 the foreign State does not at all prevent special duties 
 being imposed upon the citizen, which he must observe in 
 any country, and the punishment due to any infringement of 
 that law from being inflicted upon him so soon as he shall 
 return to his own country, a course which is taken by the 
 practice of all countries to a certain extent, even of those 
 
 1 Story, § ,620 ; Lewis, pp. 30, 31 ; Abegg, pp. 17, 18 ; Cosmann, p. 21 ; 
 Kliiber, § 63 ; Kostlin, § 23 ; Halschner, p. 15. Kliiber and Cosmann, 
 howerer, admit exceptions, at least in the case of legislation. The latter 
 recommends, on grounds of expediency, that criminal law should be extended 
 to the acts of subjects by which the State or fellow-subjects suffer. The 
 English, Scots, and American jurisprudence adhere strictly to the territorial 
 principle. Of. however, infra, § 138. 
 
§ 132.] 627 
 
 where the principle of territoriahty is recognised.^ Nor can 
 an appeal be made to the fact that the crime is in reality an 
 offence against public order, and can only be an offence 
 against the public order of that State in which the criminal 
 act is done.^ This is an assumption without any foundation. 
 We may just as fairly say, that to allow a native of this 
 country who has committed serious crimes abroad to go 
 unpunished, is an offence against public order ; and must 
 we not be satisfied that a crime committed a few yards 
 beyond our frontier, will have the most prejudicial effect 
 upon the public order of our State ? At the same time, to 
 adhere closely to the principle of territoriahty raises the 
 most serious dangers for the maintenance of public order. 
 The greatest crimes may go unpunished in a criminal's 
 native country, if, after the deed, committed a few miles 
 beyond the frontier, he can escape from the oflScers of that 
 State and make his way to the State to which he belongs. 
 The objection may be taken that by extradition to that State 
 in whose territory the act was done, these difficulties may 
 be obviated.* But even although a State would give up its 
 own subjects,^ the difficulty would not be removed by that 
 
 2 By English law high treason committed abroad is just as much punish- 
 able as if committed at home (35 Hen. VIII. c. 2). Lewis, the most ingenious 
 defender of the territorial principle, admits that this is right. Modern 
 English law goes still further ; it punishes the crimes of bigamy or murder 
 or manslaughter committed abroad in every case. Lewis, pp. 20-22. [See 
 24 & 25 Vict. cap. 100, § 9.] 
 
 5 As to the different grounds given in support of the principle of terri- 
 toriality, see the opinions on the relative article of the Code d' Instruction 
 Criminelle given by Berner, p. 95. 
 
 * So Lewis, p. 49 ; Henke (i. § 90), who in the same way starts from the 
 principle of territoriality, attempts to justify, on grounds of expediency, the 
 punishment of native subjects on account of offences committed by them in 
 a foreign country, and finds these grounds in the consideration that it is 
 impossible for the State to desire that the criminal should go unpunished, 
 but that it is also impossible to reconcile with the sovereignty of the State 
 the extradition of its own native subjects, or the execution of foreign judg- 
 ments. 
 
 ' Most States do not allow extradition of their own subjects, and, indeed, 
 it is often expressly prohibited by statute. Cf. infra, § 152. The evil 
 results observed in Prance from her refusal, on the one hand, to give up her 
 own subjects on account of crimes committed by them abroad, and from the 
 immunity of these subjects, on the other hand, if foreigners only were 
 
628 [§ 132. 
 
 means. In this theory the possibility of inflicting punish- 
 ment really depends upon whether the foreign State desires 
 it. Now, the opposite may very easily be the case, and 
 indeed actually is so in many cases, such as crimes against 
 the State.^ The same considerations exclude the solution 
 which Kostlin adopted ; he attributed to the State of the 
 domicile a delegated magisterial power, which it should exercise 
 upon the criminal in the name of the State properly entitled 
 to inflict the punishment. If the magisterial power of the 
 State of the domicile is in truth a mere delegated power, a 
 declaration of will must in the first place be obtained from 
 that State, which is to give the commission to act, and then 
 what shall be the result if this declaration should be a 
 refusal ? This might well be in such a case as where in time 
 of war the foreign State had incited a subject of this country 
 to treason. A consequence of Kostlin's theory, too, would 
 be that punishment would take place in accordance with the 
 
 injured by the crime, are excellently painted by Villefort, p. 12. The speech 
 of Laplague Barris, in particular, in the French Chamber of Peers, is worthy 
 of notice, on the bill submitted to the house for alteration of articles 3-5 of 
 the Code d'Instruction of 1843. Cf. too, Breidenbach, i. 1, pp. 251-52. 
 
 * The adherents to the principle of territoriality frequently admit an 
 exception to the strict rule in cases where the act is done in a foreign country, 
 in order to escape the law of the offender's own country in fraudem. le.gis 
 (Henke, i. pp. 606-08 ; Kostlin, i. p. 24 ; Marezoll das gemeine deutsche 
 Criminalrecht, § 23). The Bavarian Criminal Code of 1861, which exempts 
 all Bavarians from the law of Bavaria in respect of any acts done by them 
 in or out of Bavaria, if the act in question is not liable to punishment at the 
 place where it was committed, and is not directed against the king, the State, 
 or any subject of the State of Bavaria, makes special provision for punish- 
 ment if the act was purposely done beyond the Bavarian frontier in order to 
 escape the criminal law of that country. But when one, intending to commit 
 a crime, betakes himself to a foreign country, and appeals to its laws to 
 protect him against the criminal law of his own country, he has not put any 
 false interpretation on any rule of law, for it is precisely because of the prin- 
 •ciple of territoriality that criminal law is ineffectual in a foreign country, 
 nor has he misrepresented or concealed the facts. To avoid that condition 
 of fact which is necessary to bring the rule of law into play, is not the same 
 thing as defr£^uding the law. See supra, § 35, p. 138. Breidenbach, pp. 
 258-59 : " It is not easy to see wherein dolus, in the sense of the criminal 
 law, can be said to exist, if, for instance, any one wishes to express 
 himself in English affairs in the English fashion, and so takes shipping 
 to England." 
 
§ 132.] 629 
 
 law recognised at the place where the act was done.'^ But 
 that could hardly be carried out in practice, unless the 
 system of punishment in one State should accidentally coin- 
 cide with the system in another, because it is impossible in 
 point of fact to compare punishments which are physically 
 different ; and although a statute may adjust their mutual 
 values, this is only by a statutory fiction, which does not 
 admit of being extended to similar cases. The same difficulty 
 meets the modification which Kostlinsuggests-^viz., that any 
 State whose own system of punishment is less severe than 
 that in force at the place where the act was done, is entitled 
 to apply it in the case of its own subjects ; for the same 
 process which would be necessary in comparing different 
 punishments is necessary for determining which of two systems 
 is the milder. 
 
 But, in the last place, it may be that a crime is committed 
 by a subject of one State against that State, or against feUow- 
 subjects, in some place where there is either no magisterial 
 authority at all, or one that exercises its jurisdiction on 
 uncivilised principles, which we cannot in any way recognise. 
 Is all punishment to be excluded in such cases ? ^ 
 
 Only a few authors have carried out the principle of terri- 
 toriality to its fuU results. The majority have made excep- 
 tions upon grounds of expediency, and have attempted to 
 justify them by maintaining that the State has an interest in 
 inflicting punishment in these cases. But if the State has 
 no right to punish a crime which has been committed in a 
 foreign country, how can any interest take the place of a 
 right ? We can see no substantial difference, as V. Mohl (p. 
 734) aptly remarks, between such an argument and a defence 
 or justification of judicial murder. 
 
 Then, too, the exception which almost all authors and all 
 
 ' Halschner, p. 14, lays down that if a State is to inflict punishments, it 
 can only impose those which it thinks just, i.e. those appointed by its own 
 law. This is inconsistent with the theory of delegation, which he also adopts, 
 for by his view the State of the criminal's domicile has no right to impose 
 punishment except through the illegality of giving up its own subjects, 
 which is established by positive enactment. 
 
 8 The European Powers are accustomed to exercise a criminal jurisdiction 
 by means of their consuls over their subjects in the East. 
 
630 [§§ 132, 133. 
 
 systems of legislation allow in cases of crimes committed by 
 native subjects in a foreign country against the State of their 
 domicile itself, cannot be reconciled with the principle of 
 territoriality on the ground that in such cases we must hold 
 that violence has been done to a special obHgation of loyalty 
 towards the State of the domicile which is quite independent 
 of the place of present residence.' For it is not merely crimes 
 against the State itself which may be regarded as breaches of 
 loyalty : that may be the character of other offences also, as, 
 for instance, in feudal law a gross offence of any kind may be 
 held as an infringement of the good faith due to the feudal 
 superior ; and in modern English law grave offences are to the 
 present day called felonies. 
 
 "I 133*. 
 
 II. A second theory proposes to lay under the criminal 
 law of any State not merely the offences committed there, but 
 also those that are committed by its citizens abroad.^ This 
 view is chiefly founded upon the assertion that the criminal 
 law lays obligations upon the subjects of the State which it 
 will never permit them to transgress, or in other words, that 
 criminal laws, although they bind every one in the country, even 
 those who are merely there upon a temporary visit, have at 
 the same time the effect of personal statutes. This doctrine is, 
 however, as yet a mere assumption, and is not proved by the 
 reason which some adduce in its support,^ — viz., that the 
 State protects its subjects even in a foreign country, and 
 accordingly is entitled to require them to observe its laws 
 there ; for, as Halschner remarks (p. 61), the protection which 
 the State of the domicile extends to its subjects in a foreign 
 
 » MarezoU, § 23 ; Halschner, p. 64. See, too, Schwarze, pp. 195-96, who 
 no doubt holds the State in whose territory the crime was committed to be 
 primarily, but not solely, entitled to punish it, but holds'the crime rather as 
 a breach of the general legal order which must be maintained in all States. 
 See the same idea in the Royal Criminal Code of Saxony, 1855, art. 9. Cf. 
 infra, § 135, note 6. 
 
 1 Kleinschrod. N. Arch. d. C. R. 1801, pp. 384-85 ; Heflfter, Criminal Law, 
 § 26 ; International Law, § 36 ; Wheaton, § 113, p. 154 ; "Witte, p. 75. 
 
 ^ Cf. the debates upon the Code d'Instruction given in Beruer. 
 
§ 133.] 631 
 
 country, is only an international question if it should happen 
 that the foreign country does not fulfil its obligation to give 
 them the protection of its laws while they are resident there. 
 It might just as well be asserted that, since the protection of 
 the criminal law of one State comes to an end when the 
 citizen loaves its territory, so too must the responsibility of 
 obedience to that law. But as a general proposition the pro- 
 tection which a citizen enjoys in a State or from a State does 
 not necessarily imply his subjection to its criminal law. Even 
 those persons who can plead extra- territoriality enjoy the pro- 
 tection of the criminal law in that State in which they reside, 
 without being answerable to its laws. 
 
 Just as little can we admit the appositeness of the reason 
 assigned by Berner (p. 126) — ^viz., that acts which are open 
 to punishment are irreconcilable with the character of a 
 citizen, and that therefore while a man retains his character 
 as a citizen, he may not commit any act that is at variance 
 with it. In the first place, the State forbids all criminal acts 
 within its territory in every case without regard to the 
 domicile of the person who commits them. In the second 
 place, if Berner's conception were correct, the consequence of 
 committing a criminal act would be not punishment, but 
 withdrawal from the position of a citizen. And in the third 
 place, it is not an admitted proposition that an act, which if 
 committed in this country would be seen to be irreconcilable 
 with the character of a citizen, will be regarded in the same 
 light if it is committed abroad.^ 
 
 But the most remarkable consequences foUow from an 
 unconditional obligation upon the subjects of any country to 
 be bound by the criminal law thereof even when abroad. Is 
 such a person to be liable to punishment for an act which was 
 sanctioned, or perhaps required by the law or customs of the 
 country in which he was temporarily resident ? How can our 
 State ask its subjects to observe all the provisions of our laws 
 which are in conformity with our legal theories, our fashions, 
 and our institutions, in a foreign land, where it may be that 
 every one observes different rules of conduct ? These difii- 
 
 3 See, on the other hand, V. Mohl, pp. 690-91, note. 
 
632 [§ 133. 
 
 culties * must necessarily arise if thelaw of the domicile is to 
 be tied round the necks of its -subjects like a rope.^ If the 
 principle of personality were to be recognised, the logical 
 result would be to require a citizen in a foreign country to 
 observe even police regulations, unless these had a mere local 
 signification.^ 
 
 It is attempted to justify in the following way the limita- 
 tion of the principle of personality which is so often adopted 
 — viz., that it should affect only crimes committed against the 
 State to which the criminal belongs, or against his fellow- 
 subjects. 
 
 In the first place, this is justified by the assumption ^ that 
 the State has no interest in infiicting punishment unless it is 
 itself damaged, or unless its citizens suffer. But this assump- 
 tion seems scarcely tenable, if we remember that the moral 
 damage done to the community by allowing a serious crime 
 committed by a citizen in foreign territory to go unpunished, 
 is precisely the same whether the person injured is also a 
 citizen or is a foreigner.' 
 
 But, in the second place, there is here also involved the 
 
 * See the apt remarks of Schwarze, p. 188, especially p. 191 : " Let us sup- 
 po.se that to take the law into one's own hands is criminal in this country, but 
 can only be visited with civU disabilities in another. Is the judge of this 
 country to punish one who returns home after the lapse of years with the 
 criminal consequences of such an act ? If, for instance, a subject of Saxony 
 buys a slave in South America, could the courts of Saxony sentence him to a 
 period of imprisonment for this act, which is perfectly innocent in the country 
 where it is committed ? " 
 
 ^ Lewis, p. 29. 
 
 « Of. infra, § 141. 
 
 ^ S. Cosmann, pp. 34-5. 
 
 * [Of. in this connection the provisions of the Act 24 & 25 Vict. c. 100, § 
 4: "All persons who shall codspire, confederate, and agree to murder any 
 person, whether he be a subject of Her Majesty or not, and whether he be 
 within the queen's dominions or not, and whoever shall solicit, encourage, 
 persuade, or endeavour to persuade, or shall propose to any person to murder 
 any other person, whether he be a subject of Her Majesty or not, and 
 whether he be within the queen's dominions or not, shall be guilty of a mis^ 
 demeanour, and shall" suffer certain punishment. Under this section 
 Johann Most, a German subject, was convicted of inciting to murder the 
 Emperor of Russia by the publication in London of a newspaper called 
 the Freiheit. He was sentenced to penal servitude, 18th June, 1881, Q. B. 
 Div. vol. vii.] 
 
§ 133.] 633 
 
 proposition that the right and duty of the State to inflict 
 punishment only reach as far as the protection which it gives, 
 and to this protection foreigners in a foreign country have no 
 claim. This reasoning® is in any view met by a considera- 
 tion which we shall advance against a third theory.^" The 
 serious consequences of letting crimes committed abroad by 
 natives upon foreigners abroad go unpunished are most keenly 
 felt by French jurists/^ and a remedy has more than once 
 been sought by enactments of various kinds. These pro- 
 posals have up to the present time been shipwrecked, partly 
 by reason of difference of opinion as to the principles to be 
 adopted, partly by reason of external difficulties. 
 
 ' Feuerbach, §§ 31-40 ; Bauer, § 40 ; Oppenheim, p. 384 (who certainly 
 starts with the principle of territoriality, but ends with conclusions quite con- 
 tradictory of it). Bauer adds, that any State may expressly threaten with 
 punishment its own subjects in case they shall commit any crime in a foreign 
 country against foreigners or a foreign State ; and may even, in the name of 
 the foreign State, apply the criminal statutes of that State to its own subjects. 
 
 1" See against this limitation especially Kostlin in the Zeitschrift fiir Eechts- 
 wissenschaft und Gesetzgebung des Auslandes, toI. xxii. p. 74, and Gross im 
 Archiv. d. 0. K. 1853, who calls attention to the fact that the question may 
 be raised whether the native who is to suffer punishment must not have 
 known that the injured person was a foreigner. The limited principle of 
 personality is at the bottom of the provisions of the Code d'Instruction, 
 art. 5 : " Tout Frangais qui se sera rendu coupaUe, hors du territoire de 
 France, d'un crime attentoire b, la sureti de I'Etat, de contrefaction du sciau 
 de I'Etat, de monnaies nationales ayant cours. de papiers nationaux, de billets 
 de banque auf arises par la hi, pourra Ure poursui/vi, jugi et puni en France 
 d'apres les dispositions des lois frangaises." 
 
 Art. 6 : " Cetle disposition pourra Ure etendue aux Strangers qui auteurs 
 ou complices des memes crimes, seraient arrities en France, ou dont le Oouvern- 
 ment oUiendrait I' extradition." 
 
 Art. 1 : " Tout Frangais qui se sera rendu coupable, hors du territoire de 
 Vempire, d'un crime contre un Frangais, pov/rra, b, son retour en France, itre 
 poursuivi et jugi s'il n'a pas M poursuivi et jugi en pays etranger et si le 
 Francaise offensi rend plainte contre lui." [These articles are severely com- 
 mented upon by Foelix, ii. pp. 271-73, see note a, p. 273. The 4th section, sub- 
 section 1, of the German Criminal Code of 1871 is nearly identical with art. 
 5, see infra, p. 649.] 
 
 11 Cf. judgment of the Faculty of Law at Paris, reported by Kostlin and 
 H61ie, p. 612. Also the provision of the statute of Wurtemberg, art. 5, by 
 which a less severe penalty is inflicted for crimes committed either in Wur- 
 temberg or abroad, if the State to which the injured person belongs prescribes 
 this milder punishment. 
 
G34 [§ 134. 
 
 §134. 
 
 III. A tliird theory,^ which recognises that all crimes 
 committed in the country, and all crimes committed by 
 natives abroad, must be punished, proposes to extend criminal 
 law still further, by laying down that the State has a right 
 to protect itself and its subjects from injury, and is therefore 
 jprivileged to visit any injury with punishment, a principle 
 recognised in most German criminal codes,^ and also in 
 Kussia ^ and Norway.* 
 
 But although it is true that the protection of persons and 
 property is secured by criminal law, the right to punish does 
 not flow from the right to protect : the latter may justify 
 any measures of defence or self-defence, but gives no right to 
 correct. But even if a law .of punishment could be derived 
 from the right of defence and self-defence, yet, since the 
 obligation to protect by punishment lies in the first instance 
 upon the State in which the injured parties are, such a law 
 would be subsidiary only, and the State whose permanent 
 subjects those injured persons are, would primarily have no 
 share in the matter, beyond supporting all other States in 
 applying their criminal law.^ But, lastly, no punishment can 
 be inflicted except in cases where violence has been done to 
 the law ; an act which the law allows or an accidental act 
 cannot lead tb punishment. The theory that the injured 
 
 1 Tittmann, p. 1818 ; Oerstadt. Ueber die Grundregeln der Strafreohts- 
 wissenschaft, p. 141. 
 
 2 So, too, the legislations of Bavaria, Oldenburg, Hanover, Wurtemberg, 
 and Thuringia. [These are superseded by the German Criminal Code of 
 1871', which does not recognise this principle.] 
 
 3 Villefort, p. 52, and Witte, p. 47. 
 
 * Besides, almost all the States of Europe punish crimes committed against 
 themselves in a foreign country, infra, § 138. 
 
 ^ Against the extension of criminal law to the acts of foreigners in a 
 foreign country, see Feuerbach, § 31 ; Heffter, Strafr. § 26 ; Berner, p. 140. 
 The last certainly assumes that there is a natural right to punish in cases 
 where the foreign State refuses to punish crimes against our State and its 
 subjects. On the other hand, we must remember that there is not really any 
 criminal law arising from a natural condition, such as that into which a State 
 of that kind would throw us, according to the case supposed by Berner. Cf. 
 on the other hand, Leonhardt, Comment, on Hannov. C. G. B. i. p. 68. 
 
§§134,135.] 635 
 
 paity or the injured State is entitled to inflict punishment 
 is therefore a petitio principii, because it assumes that the 
 act which it proposes to punish is to be viewed in the light 
 of the law of the party so injured." 
 
 A union of such divergent principles (territoriality, per- 
 sonality, and right to protect) must, at the same time, lead to 
 the most manifold doubts and the most irreconcilable results,^ 
 as is proved by the diversity of the rules that are to be 
 appUed for the regulation of the punishment of crimes com- 
 mitted abroad,* found in the various German systems of law. 
 Difficulties are specially caused by consideration of the person 
 of the injured party. Who is, for instance, the injured party 
 in the case of a duel where neither has sustained any bodily 
 harm ? or who is the injured party in the crime of bigamy, if 
 a husband contracts a second marriage with a single woman 
 who is in perfectly good faith ? In the latter case is it only 
 the single woman who is thus deceived that is injured, or is 
 the true wife also injured ?^ If an article is stolen while in 
 the hands of some one who has hired it, is the owner or the 
 hirer only the injured party, or are both injured 
 
 2 
 
 § 135. 
 
 IV. A fourth view requires primarily that all crimes, even 
 if committed abroad, should be punished. 
 
 ° The principle which Arnold sets up (Gerichtssaal, 1857, p. 321), which he 
 proposes to carry back to the right and duty of self-support, and for which he 
 is at a loss to find a satisfactory name, is nothing but that law of protection 
 of which so much use has already been made. The principle of internation- 
 ality which Arnold introduces, along with that just stated and those of 
 personality and territoriality, is superfluous. For, as we hare already 
 endeavoured to show, from the principle of personality we can derive not 
 merely the right to punish citizens who have injured other citizens in a 
 foreign country, but also the right to punish crimes committed by citizens in 
 a foreign country upon foreigners ; and it is to prove this last proposition 
 that the principle of intemationality is introduced. 
 
 ' See, on the other hand, especially Mohl, pp. 739-40. 
 
 * Is the sentence to be that which the law of the place of the act appoints, 
 or that which depends upon the law of the domicile of the injured party, or 
 that which is in accordance with the law of the court 1 See below, § 140. 
 
 » Cf. Villeforfc, p. 21. 
 
636 [§ 135. 
 
 This may be supported, in the first place, upon the theory 
 of prevention,-^ according to which the State has no other 
 object in inflicting punishment than to protect itself from 
 future injury that may be wrought by the wicked will of the 
 criminal manifested in his act ; and upon this theory of 
 criminal law, the view stated above is no doubt correct. 
 
 But if we recognise, as almost everyone now does, the 
 falsity of this theory of prevention, it will not serve to 
 support the other. 
 
 To appeal to the forum, deprehensionis, which stiU exists 
 in individual States, is also inadmissible, as we have already 
 seen. 
 
 On the other hand, we must examine closely the grounds 
 upon which it is said that any penal offence has the same 
 character wherever it is committed, and that, therefore, the 
 development of the law applicable to it is not limited by the 
 local limits of any State.^ It does, no doubt, seem to be an 
 argument in favour of this view, which is, however, subjected 
 to very important restrictions, to be hereafter noticed, even by 
 those who adopt it, that in all civilised States ahke, certain 
 acts are reckoned to be serious crimes : these are what we 
 call delicta juris gentium ; and, again, it cannot be said that 
 one who has comriiitted theft or robbery in one State, can 
 ever be regarded as an honourable man in another.^ Each 
 State, in accordance with this view, punishes acts even 
 although they are committed in a foreign country, because 
 they imply an infringement of the general reign of law which 
 exists in all countries, and whose positive expression is 
 found in the common and statute law of every State.* We 
 must, however, in spite of the ability of the defence put for- 
 ward for this theory in Mohl's work, resist such a cosmo- 
 
 1 So V. Grolniann, Strafrechtswissenschaft, § 107. 
 
 2 Grotius speaks in this or a similar way (ii. c. 20, § 40), and also Vattel 
 (i. ch. 19, § 232) ; in more recent times Schmid, Deutsches Staatsrecht (i. 
 §§ 87-8 ; Bscher, Vier Abhandlungen iiber Gegenstande der Strafrechtswissen- 
 schaft, Ziirich, 1822, pp. 123-135 ; Schwarze, p. 194, and Mohl (cf. p. 711 
 750). 
 
 3 H61ie, p. 586 ; Halschner, 62. 
 * Schwarze, as cited. 
 
§ 135.] 637 
 
 politan conception of criminal law, because it rests upon a 
 confusion of law and morality. Morality is everywhere the 
 same ; it exists without the sanction of the State, and is 
 drawn directly from the general principle of the highest good ; 
 law, on the other hand, is first called into existence by the 
 sanction of the community of each particular State, and so 
 it can never be held to be the right and duty of each State 
 to submit all criminal acts committed on all parts of the 
 globe to its own criminal law. To this consideration we shall 
 return, in order to establish our own theory. 
 
 At the same time, the most manifold practical diflSculties 
 rise up against such an extension of criminal law. It will 
 often be necessary to have regard to foreign criminal law, if 
 the foreigner who lives in a remote country, and in circum- 
 stances entirely different from ours, is not to suffer a 
 punishment quite incommensurate with his real guilt : this 
 is always attended with great diflSculty, and is often im- 
 practicable. As a rule, evidence of foreign law is not to 
 hand, and in order to get it other States must lend their 
 help, and thus the issue is dependent upon the goodwill of 
 these other States. Large cost may be incurred without any 
 result, while all possible harm can be simply obviated by 
 extradition ; there is also a risk that the ends of justice 
 will be badly served, if every traveller is forced, in a strange 
 country — where, as a rule, all means of proof, all evidence 
 must be obtained from a distance — to defend himself before 
 foreign courts according to their law. Any such extension 
 of criminal law offers the best possible handle for mahcious 
 accusations and oppression, and, at the same time, endangers 
 the independence and respect for the administration of justice, 
 siace every State will take up the cause of any of its subjects, 
 and thus the law will continuaUy be threatened by diplo- 
 matic intervention. 
 
 Only a few States have adopted the rule of bringing all 
 offences, wherever they may have been committed, before 
 their own courts, and these few have only done so under im- 
 portant limitations : either by requiring that an offer of 
 extradition shall first be made to that State in whose 
 territory the crime has been committed, and by giving juris- 
 diction to its own courts only in the event of this offer being 
 
638 [§ 135. 
 
 refused/ or else by providing that a special license by the 
 head of the Government shall be necessary to originate such 
 a jurisdiction.^ 
 
 It must be allowed that the former of these limitations, 
 which Mohl (p. 751) describes as indispensable, does much 
 to remove the criminal-political difficulties we have mentioned. 
 If the State, which has the first claim to jurisdiction, is 
 allowed to treat the guilty party according to its own con- 
 ception of law, and to withdraw him from the jurisdiction of 
 the other, diplomatic intervention and complications wiU be 
 far more easily avoided. But still they are not entirely 
 removed. It always remains possible that a foreigner should 
 suffer a long period of imprisonment unjustly while an 
 inquiry is being made ; " then what is to be the result if the 
 State, to which the privilege of extradition is offered, declines 
 it because there is no sufficient evidence, whUe in the view of 
 our magistrates there is quite enough to warrant the extra- 
 dition of the accused ? In such a case there must be some 
 respect shown to the foreign country, but it is difficult to 
 say how much. 
 
 ^ So the Austrian Criminal Code of 3 852, § 37, and the Sardinian of 1839 
 (on the latter see Foelix, ii. § 584). If by the law of the place of the deed 
 a more lenient punishment would fall to he inflicted than that which Austrian 
 law imposes, the provisions of the Austrian code enact that that lenient pun- 
 ishment shall be inflicted, except in cases where the crime is treason against 
 the Austrian Empire or the German Bund, or the forgery of Austrian public 
 bank notes, or coining. See infra, § 138-39. 
 
 " Saxon Criminal Code, 1855, art. 3, 5 ; Brunswick Code, § 205. By art. 
 8, sect. 2 of the Saxon Code read along with art. 3, any more lenient form 
 of punishment recognised by the law of the place of the deed may be applied, 
 if the deed is not to the hurt of the Kingdom of Saxony or its oflcers, the 
 head of the State or his family, or other Saxon subjects who at the time of 
 the crime were in Saxony. Waohter, Sachs. Strafr. vol. i. p. 143. By the 
 Brunswick Code, the punishments therein provided are to be invariably 
 applied. On this subject see below, § 140. 
 
 ' It is only necessary to remember that even in modem times it is quite 
 possible that an act may not be punishable in this country which a neigh- 
 bouring State regards as a gross crime. An act, for example, may be 
 regarded as homicide by our law, and punished accordingly ; while the law 
 of a neighbouring State will hold it to be an act of self-defence. Mohl over- 
 looks this fact. 
 
§ 135, iVoie CO ] 639 
 
 The second limitation is a mere transference of legislative 
 difficulties to the shoulders of the supreme minister of justice. 
 This will obviate many mistakes by inferior magistrates, but 
 will open the door all the more widely for the interference of 
 foreign Governments in the administration of justice.^ 
 
 It is thus plain that the principle which seems so indis- 
 pensable for the security of international intercourse, — ^viz., 
 that crimes shall be punished wherever their perpetrators can 
 be reached, — is in reaUty a very formidable weapon, which 
 not only may easily injure the innocent, but may most 
 vitally affect the idea of justice held by the State which is 
 to inflict punishment, as well as its dignity and inde- 
 pendence. 
 
 Note CC, OTO § 135. 
 
 [By the 4th section of German Criminal Code of 1871, 
 now in force over the whole empire, it is provided that, as a 
 rule, no punishment will be inflicted for any acts committed 
 abroad : this rule is liable to various exceptions in the case 
 of treasonable practices ; and by the 3rd subsection any 
 German may be punished in Germany for an act which is 
 recognised as a crime both in the country where it is com- 
 mitted and in Germany. The Reichsgericht sitting at Frank- 
 furt, on 15th March, 1880, has applied the former rule in 
 the case of a Frenchman apprehended in Germany in posses- 
 sion of stolen bonds, and charged with the reset of these 
 bonds ; he had come into possession of them in France, and 
 the court held that it had no jurisdiction over the prisoner, 
 the crime having been committed abroad by a foreigner. 
 
 That the law of England does not hold the theory criticised 
 in the text is indicated by the case of the Attorney-General 
 of Hong-Kong v. Kwok-a-Sing decided by the English Privy 
 Council (19th June, 1873, 5 P. C. 179). In that case 
 Lord-Justice Mellish says : " The general principle of criminal 
 jurisprudence is that the quality of the act done depends on 
 the law of the place where it is done."] 
 
 8 See, on the other hand, Putter's observations, pp. 1, 80. 
 
640 [§136. 
 
 §136. 
 
 The different views now explained all rest upon general 
 principles, wliicli directly point at the mutual relations of 
 the various territorial systems of legislation. 
 
 Ortolan (No. 880) justly finds fault with this ;^ he 
 remarks that the expressions " territoriality " and " person- 
 ality," which are taken a 'priori as starting-points for these 
 inquiries, serve only to obscure the subject. It seems proper 
 to him to refer the punishment of crimes committed abroad, 
 just in the same way as of crimes committed at home, to 
 justice and necessity ; and, accordingly, to settle the applica- 
 tion of penal laws as regards places and persons by these 
 canons. He confuses, however, necessity and expediency ; 
 and, as the latter has no definite limits, the results which 
 he deduces seem more or less arbitrary. 
 
 Ortolan, however, on coming to details, lays down the 
 following rules : — 1st, All crimes and offences may, and must, 
 be punished by the State in whose territory they are com- 
 mitted ; it is this State whose vigilance has been defied, 
 whose authority has been despised, and whose people have 
 been alarmed and exposed to the risk of the bad example. 
 2nd, Crimes against the State itself, its security at home or 
 abroad, its public property, its institutions, and its officers, 
 should unconditionally, and even preferentially, be ruled by 
 the penal law of the State so assailed, since it has the 
 greatest interest in punishing the deed.^ 3rd, Other crimes 
 shall only be punished if the criminal at some subsequent 
 time shall be found in the territory of the State whose right 
 to inflict punishment is in question. The presence of the 
 criminal is supposed to be the first thing that creates an 
 interest in society to require punishment, and that, too, only 
 
 1 Villefort (p. 8) is of the same opinion ; but when he maintains that 
 penal law as being a means of restraint, must bind all subjects, even when 
 abroad, and as a means of protection must defend social order and the 
 subjects of its own country everywhere, without regard to the place of the 
 crime or the person of the criminal, we have precisely the same theory as that 
 enunciated above in § 134. 
 
 2 It is not easy to see how this rule can be reconciled with the arguments 
 brought forward to support the first rule. 
 
§§ 136, 137.] 641 
 
 when the criminal or his victim belongs to that State ; in 
 other cases, extradition or banishment will satisfy the 
 interests of society. 
 
 It will be shown directly when we come to seek a founda- 
 tion for our own theory, in how far objections may be raised 
 against this extension of the penal authority of the State. 
 It need only at present be remarked that the requirement of 
 the presence of the criminal ia the territory of the State is 
 only a matter of procedure, and loses all real meaning when 
 criminal procedure in default of appearance is recognised ; it 
 is not a good criterion for determining any material right, and 
 all the less so, that a very pressing interest to have a criminal 
 punished may arise without his personal presence in the 
 country. 
 
 III. — The Principle of International Criminal Law. 
 
 §137. 
 
 The proper solution of the question we are discussing 
 must be sought directly in the principles on which the criminal 
 law of a State depends, and the object which such a law has 
 in view. No theory of criminal law can be held to be just 
 which does not account for the development of the first prin- 
 ciples of criminal law generally recognised in all civilised 
 States, and at the same time for the obligatory force of the 
 criminal laws of each particular State in international rela- 
 tions. The conception of a State necessarily leads us to the 
 connection of a State with a particular territory, and even 
 the idea of a cosmopolitan State, which never can be realised, 
 does not stand free from such a connection : its territorial 
 limits would, of course, be the whole globe. 
 
 We may define generally the object of the State to be the 
 perfection of each individual citizen as regards his social 
 relations to all his feUow-citizens. 
 
 We cannot, consistently with the end and aim of this 
 inquiry, undertake to investigate the universal principles of 
 social existence upon which morality and law are both 
 established. We may, however, assume that on the one 
 hand the State, which desires to maintain the principles of 
 
 2 T 
 
642 [§137. 
 
 morality, must interfere in certain cases where these principles 
 are infringed, and that on the other hand all acts that are in 
 conformity with the moral law cannot — directly, at least — be 
 exacted by the State from its subjects, and all immoral acts 
 may be directly prohibited. If we were not to admit the 
 former proposition, we should deny all morality to the State, 
 for morality which does not in all circumstances declare 
 itself as the foe of immorality, is no morality at all. Morality 
 is an attribute of the will, and, like the will, requires an act 
 to bring it into existence. If we denied the latter, — which 
 is a limitation of the former, — we should leave no scope for 
 morality in individuals ; since we cannot reconcile a direct 
 compulsitor to every moral act, and a direct prohibition of 
 every immoral act with the freedom of the individual, and if 
 this freedom disappears, then individual morality becomes 
 impossible. 
 
 In this way we can reach directly the relation of law to 
 morality. Law is the moral principle in so far as its 
 observance can be directly required by the State, morality is 
 the same principle in so far as its observance is left to the 
 free will of the individual. 
 
 There are two objections that wiU obviously be advanced 
 against, the reference of law and morality to a common prin- 
 ciple. The one consists in a demonstration of the divergence of 
 the laws observed in different States and at diJBferent times, the 
 other in the consideration that whereas by our theory a collision 
 between law and ihorality would be impossible, it is yet the 
 case that if the strict rule of law is rigidly carried out it may 
 often advance the immoral purposes of the individual. 
 
 Closer examination shows that both of these objections, 
 instead of destroying our position, rather strengthen it. 
 
 1st. That a free and moral intercourse of all individuals 
 in the State may be possible, it is necessary that there should 
 be fixed and generally recognised rules, which shall be main- 
 tained by the supreme authority of the State ; these rules 
 must control not merely the shares of individuals in material 
 property, and the methods of acquiring and losing these, but 
 must also regulate the position of each human being in the 
 family, the State, and the Church. 
 
 Otherwise no one could count with certainty upon the con- 
 
§ 137.] 643 
 
 sequences of any act. It is not necessary that these rules 
 should all be capable of being referred to generally recognised 
 principles of morality ; but they are certainly indispensable 
 to the maintenance of social and moral order. If they are 
 once well established, to break them is to break that order. 
 They may be settled in a variety of ways, and they are best 
 calculated to attain their object if they form themselves as 
 exactly as may be in correspondence with the history and 
 actual position of each country, with the manners, customs, and 
 requirements of the people, and the condition of the country. 
 Hence the great variety of positive laws in different States. 
 
 2nd. If the ..State does not propose to abrogate the moral 
 freedom of the individual, it must leave the individual free 
 to infringe the principles of morality to a certain extent, by 
 abstaining from insisting by force upon the observance of 
 these principles after a certain limit. It is a consequence of 
 this principle that the State may not as a rule forfeit or 
 diminish the material wealth of an individual, because he 
 uses it in a way that does not coincide with the principles of 
 morality. A suit by a rich miser against a poor debtor must 
 necessarily be as competent in law as the suit of the debtor 
 against the miser. 
 
 But within the domain of law itself we may take a double 
 distinction. 
 
 In the first place, when an offence against the law is com- 
 mitted, the State may put itself in motion, either to correct 
 that offence per se, without regard to the state of will that 
 was at the bottom of it, or it may take that state of the will 
 into account. 
 
 In the former case the activity of the State is confined to 
 taking means to restore as nearly as possible the outward con- 
 dition of things as it existed before the offence was committed. 
 
 In the second case, too, the activity of the State may be 
 similarly confined with this modification, that many equitable 
 considerations which we take into account in the case of an 
 innocent offender against law and order disappear when the 
 origin of the offence is found to be a guilty will.^ 
 
 E.g., the bona fide possessor of a thing that does not belong to hini has 
 right to certain fruits, while the possessor in mala fide must restore these 
 along with the thing itself to the true owner. 
 
644 [§ 137. 
 
 But if tlie State itself desires to maintain the principle of 
 morality, it cannot in every case restrict itself to a merely 
 external restoration of the true legal position, which either 
 does not interfere at all with the will that has infringed the 
 law,^ or does so merely in a subordinate way ; it must 
 rather in the case of the most serious offences set itself in 
 motion against this will itself, and this it does by inflicting 
 punishment, the effect of which is to withdraw from the 
 owner of the law-defying will some portion of his legal sphere. 
 It is also a consequence of the same principle that in cases of 
 this latter kind, the State itself wUl exact the penalty ; but in 
 cases, on the contrary, where there is nothing but a purely 
 external offence against legal right, — in cases, that is, of civil 
 liability, — the State must leave the injured party to claim for 
 himself a restoration of the true legal position ; for this 
 offence against the law, which the State holds to be purely 
 external, is only an offence against the law so long and in so 
 far as the injured party desires to recover the integrity of his 
 legal position, and ceases to be an offence the moment he 
 gives it to be understood, either expressly or tacitly, that he 
 will not again claim what has been taken from him, and 
 therefore separates it from the sphere of rights which is 
 entirely within his own control. After what has been said 
 we need no further discussion to show that the boundary 
 between civil and criminal liability must be differently fixed 
 at different periods in different countries. 
 
 Since, then, criminal law by no means finds its foundation in 
 any right to force the individual into a particular fashion of 
 thought or action, but is founded upon the moral end of the 
 State, in virtue of which the State is constrained to resist the 
 law-defying will, we must not, on the other hand, forget 
 that by means of the criminal law a certain measure of com- 
 pulsion is indirectly exercised upon the current of the 
 individual's actions. If this compulsion is not to lead to a 
 complete extinction of the moral freedom of the individual, 
 there must be only a certain number of particular actions^ 
 
 ^ This may be found in mere abstinence from action. 
 
 ^ This is, of course, not the place to draw all the deductions that might be 
 drawn froBV this proposition. To strengthen it, however, it may sufiSce to 
 notice that from it we can account for the inadmissibility of determining by any 
 
§ 137.] 64f5 
 
 included in the sphere of penal offences ; the whole life of a 
 person must never be subjected to penal supervision, but 
 merely certain manifestations of his will, which may, no 
 doubt, in certain circumstances, extend over a considerable 
 space of time.* If whole chapters of a person's life ' were 
 directly subjected to the supervision of the criminal law, the 
 State would become an academy, proposing to itself the task 
 of reforming all its individual citizens, whom it would hold 
 to be immature persons ; this task would be unreasonable, 
 just because the State itself could only be ruled by similar 
 creatures, who would also necessarily have to be considered 
 as immature. 
 
 If, then, the penal authority of the State must resist par- 
 ticular manifestations of the will in the individuals, and not 
 regulate whole chapters of their lives, it necessarily follows 
 that, when the essentials of moral guilt are found in any par- 
 ticular case,° the interference of the State will be called for, if 
 the particular manifestation of the will^ was made within the 
 territorial limits of the State in which it is desired to realise 
 the idea of a moral community, without considering whether 
 the personality, with whose act of will we are concerned, 
 belongs permanently to the State or not. The authority of 
 the State to punish extends, therefore, over all acts that 
 take place within its territorial limits, without regard to the 
 domicile of the person who does them. 
 
 But, since any particular act is the product of the whole 
 personality, so long as there is any connection of a moral 
 
 analogy from common law or statute (quite a different thing from a liberal 
 interpretation of these), whether an act is punishable or not ; e.g., the maxiin 
 in dvbio pro reo has, as far as I know, always been considered, merely as an 
 advantage given to an accused person in some particular case ; in this way we 
 can also explain how a person's previous history may be used as a consideration 
 to increase or to diminish his punisliment, but can never do away with his 
 guilt altogether. 
 
 * JS.g., illegal imprisonment of any person. 
 
 ° H g., these essentials may be wanting where a foreigner is excusably 
 ignorant of our law. 
 
 * By a manifestation of the will we mean an external act. A mere decla- 
 ration of will cannot be criminally prosecuted by the State, just because 
 purely mental and inward facts must be left to the freedom of the individual, 
 if anything is to be. 
 
646 [§ 137. 
 
 kind between the individual and the State, the power of the 
 State to punish cannot be excluded by the fact that the 
 manifestation of the will in question did not take place within 
 the territory of the State to which the individual permanently 
 belongs, but in some foreign country. This rule, as we shall 
 see below (§ IS 9), no doubt requires an important limitation. 
 The opposite theory, by which all penal action on the part of 
 the State against offences committed by one of its subjects in 
 a foreign country is excluded, must either divide the person- 
 ality of the individual, in so far as that is made manifest by 
 open acts, into a series of unconnected manifestations of the 
 will, and so fall into contradiction with the end and aim of 
 all penal law, which consists in a reaction of the State 
 against the whole personality of the individual as the uniform 
 centre of all his acts;" or, if a penal law is required by the 
 moral character of the relation between the State and the 
 individual, it must deny this moral character to the relation 
 which subsists between the State and any. individual subject 
 who may be abroad. 
 
 On the other hand, the penal authority of the State can 
 never extend to any other acts than those which are com- 
 mitted by its own subjects abroad, or by any persons within 
 its own territory. 
 
 In such cases there is no legal link between the criminal 
 will of the individual and the State. The mischievous con- 
 sequences which the act might produce in another country, or 
 upon the subjects of another country, would have to be taken 
 as furnishing such a link. This, however, would simply be to 
 establish criminal law . upon any external infraction of law ; 
 whereas the characteristic of criminal law is that it has a 
 distinct reference to the will of the individual. 
 
 If it is proposed, lastly, to postulate a universal criminal 
 law which should, in the first instance, be carried into prac- 
 tice by the State which might be most closely interested in 
 
 '' If punishment were not directed against the whole personality of the 
 individual, .as the uniform centre of all his acts, it could never be inflicted 
 after a lapse of time on account of some previous act. Punishment can only 
 be recognised as a reaction against some act that has previously been done, if 
 we take the uniform personality as the medium which is to bring the crime 
 and the punishment into connection with each other. 
 
i§ 137,138, iV^oifeDD.] 647 
 
 it, we should forget, in making sucH a proposal, that law is 
 not an immediate deduction from the . principles of morality 
 which are everywhere recognised, but is a matter of positive 
 enactment in every State, and, therefore, is found in various 
 shapes, while there must always be room within its confines 
 for the exercise of individual freedom. This, of course, does 
 not prevent the leading principles of criminal law in States 
 of the same stage of civilisation having a very similar stamp. 
 
 § 138. 
 
 It is not matter of dispute, as we have already shown, 
 that all persons present in a country are subject to the 
 criminal law there recognised. 
 
 Note DD. 
 
 [The Belgian law, for instance, will take no cognisance of 
 bigamy committed by foreigners in a foreign country, but if 
 such bigamists shall come to Belgium, the courts of that 
 country will punish them for the adultery committed there, 
 that being by the law of Belgium a criminal offence. — 
 Brussels, 14th Feb. 1878.] 
 
 We need only say this much further, that an exception to 
 this rule seems to be inadmissible, even in the case of crimes 
 against the State. Berner^ very justly remarks :^ " He who sets 
 
 1 P. 83. See, too, HefFter, Strafr. § 264, note 1. 
 
 ^ [Lord Campbell, in his autobiography, vol. ii. p. 119, says: "But the 
 question of international law, upon which, of all others, I took the most 
 pains while I was Attorney-General, was this : — ' Whether, if the subjects or 
 citizens of a foreign State, with which we are at peace, without commission 
 or authority from their own or any other Government, invade the English 
 territory in a hostile manner, and levy war against the Queen in her realm, 
 we are entitled to treat them as traitors V The Canadian Court held that 
 we could not, as they had never acknowledged even a temporary allegiance to 
 our Sovereign ; and of this opinion was Sir William Follet. But, after read- 
 inc all that is to be found on the subject, I came to the conclusion that they 
 owed allegiance when as private individuals they voluntarily crossed the 
 English frontier ; that it was no defence for them to say that they then had 
 
648 [§ 138. 
 
 foot on our territory thereby undertakes to submit himself to 
 our law. This duty is all the stronger the more important 
 the laws which demand obedience are. It is then impossible 
 to convince us that in the very most important laws, by 
 which the State protects its whole existence, we should suffer 
 it to grow fainter, or disappear altogether."^ 
 
 arms in their hands, and intended to murder the Queen's subjects ; and that 
 they were in the same situation as a Frenchman would be who should land 
 at Brighton with a pistol in his hand, and, seeing the Queen on the beach, 
 should instantly march up and fire at her. This man, all the world would 
 say, might be tried on the statute of King Edward III. for imagining the 
 death of the Sovereign. The Canadian judges very absurdly and incon- 
 sistently hold that these 'sympathisers' might be tried for rnurder." The 
 occasion of which his Lordship speaks was an invasion of certain " sympa- 
 thisers" into British territory in Canada during the course of the insuriection 
 there in 1839. These persons claimed the privileges of citizens of the United 
 States as exempting them from the penalties of treason.] 
 
 ^ Most German criminal codes, in conformity with English and French 
 law (the latter of which, no doubt, does not possess any expression which, 
 like " high treason," covers all acts of this kind), do not confine the crime of 
 high treason to permanent subjects. Cf. e.g., the Code of Wiirtemberg, art. 
 140 (Hufnagel, Commentary, i. p. 340). The Code of Brunswick, § 81 (cf. 
 analysis in Breymann, p. 235). Code of Prussia, § 61. The divergence of 
 the Code of Hanover is only apparent (art. 118), for although this article 
 provides that only subjects of the State shall be amenable to the accusation 
 of high treason, by art. 121 it is provided that the law as to it shall be appli- 
 cable to foreigners also, unless there should be circumstances in the case 
 which can only be determined by the principles of international law. The 
 provisions of the older Codes of Bavaria and Oldenburg, by which martial 
 law was to be applied to foreigners who in time of peace were guilty of an 
 attack upon the State, cannot be commended. In this way a kind of belli- 
 gerent right would be given to private persons. Cf. HaberliUj ii. pp. 7-8 ; 
 Berner, p. 84, note 2. The modern Code of Oldenburg of 1858, art. 4, is in 
 complete conformity with the Prussian Code, and that of Bavaria, arts. 12, 
 101-14, is t!0 on its principal points. Cf. infra, § 138, note 8. The theory 
 that only a permanent subject can commit high treason, is obviously to be 
 explained by the union of two crimes which rest upon difierent principles — 
 viz., the Roman crimen niagistatis and the Gterman crime nf treason, which 
 essentially depends upon the infraction of a relation of permanent fidelity. 
 
 [The modern Criminal Code for the German Empire, 15th May, 1871, 
 provides — 
 
 § 3. That all criminal acts committed in Germany are punishable accord- 
 ing to German law, although the perpetrator is a foreigner. 
 
 § 4. No punishment, as a rule, is imposed on crimes committed abroad, ' 
 but this rule finds exceptions in cases where — 
 
§ 138.] 649 
 
 It is, however, no question of international law whether 
 the criminality of acts directed against the State, or the 
 extent of such criminality, is conditioned by the position 
 of the criminal as a subject of that State. The answer 
 to this question is rather determined exclusively by the 
 conception of that particular crime which has been enter- 
 tained by the law of the State in question, and developed by 
 its history. At the same time, by the principles of inter- 
 national law it is undoubtedly true. that, if the foreigner only 
 discharges a duty laid upon him by his own State, which our 
 State in a simUar case would require from its subjects, no 
 criminal law can enter into the question ;* but, on the other 
 hand, every State is entitled to impose conditions as it shall 
 think right upon foreigners present in its territory, which 
 shall take effect within that territory ; and accordingly, even 
 in case of war, it may apply its laws as to treason, which 
 exist for its own subjects, to the subjects of the hostile power 
 who remain in its country and under its protection.^ 
 
 (a) A German or a foreigner has committed in a foreign country any 
 treasonable act against the Empire, or any of its States, or any 
 coining offence, or has committed, while officially employed by the 
 Empire or one of its States, any act regarded by German law as a 
 crime in an official. 
 (6) A German commits any treasonable act against any of the allied 
 princes in a foreign country. 
 §§ 84-7. A German who incites foreign powers to war, or combines with 
 them, is guilty of a crime. 
 
 § 102. Where there is reciprocity Germany will punish her own subjects, 
 or foreigners resident in Germany, who conspire against a foreign country.] 
 
 * There is needed here a careful distinction of the different acts by whicli 
 high treason may be constituted. An attempt to make it is found in the Code 
 of Hanover, arts. 122-31 ; of Hesse, arts. 139-41 (of. art. 5) ; and there is 
 there an extension of the notion to acts committed by foreigners in a foreign 
 country, which will be examined below (cf. § 138). The Code of Brunswick 
 punishes irrespectively pf whether the criminal is a subject or not, or whether 
 the act is committed in that or any foreign country, all acts that are described 
 as high treason ; except only where they are comnjitted under the protection 
 of international law. 
 
 * Cf., for instance, the Code of Prussia, § 70. There, besides the provision 
 of § 68, as to service in a foreign army, which, from its nature, can only 
 be applicable to Prussian subjects, it is laid down that "landesverrath,'' 
 (which is distinguished from the crime of "hochverrath" — high treasonrr-appli- 
 cable to acts done by foreigners in a foreign country), may be visited with 
 
650 [§ 138. 
 
 As regards, however, the extension of the criminal law to 
 acts committed beyond the territory of the State, that can- 
 not be described as an invasion upon the law of the State in 
 whose territory the act was committed. If it is necessary 
 for the maintenance of law and order in the State that it 
 should punish certain acts committed beyond its territory, 
 the right and the duty of doing so is so far justified.^ No 
 objection can be raised by any other State, for every Govern- 
 ment must be allowed the liberty of maintaining law and 
 order withia its own territory, and therefore no opposi- 
 tion can be offered to anything that is necessary to 
 that end. 
 
 "What the State shall consider necessary for the main- 
 tenance of its own order cannot depend upon the existence of 
 another State, which shall also hold the act in question as an 
 attack upon its order, and therefore feel itself constrained to 
 interfere. If such a State could not be found, then by this 
 hypothesis the rules which are essential for the punishment 
 of crime and the maintenance of order could not come into 
 play at all. 
 
 Let us imagine a well-ordered State, with a weU-defined 
 frontier separating it from a territory inhabited by barbarian 
 races, who have no such conception of right and law as their 
 civilised neighbours have.^ What are we to say as to the 
 application of the criminal law of the civilised State in such 
 a case ? Are its subjects to be allowed, if they have crossed 
 the frontier, to commit the most serious crimes against their 
 fellow-citizens and against the State ? There can be no 
 doubt that in that way it would become impossible to main- 
 tain order in the State, and that therefore, in so far as there 
 was no question of acts which are only amenable to punish- 
 
 punishment in the case of foreigners, if they are resident in Prussian territory 
 and under its protection, while in the absence of these conditions the pro- 
 cedure against foreigners shall be in accordance with martial law. The new 
 Bavarian State Code, art. 110, punishes treason in foreigners who at the time 
 of the act were resident in Bavaria, or were in Bavarian service, excepting, 
 of course (art. Ill), service in a foreign army. 
 
 ^ We must beware of confusing, like Ortolan (see supra, § 136), necessity 
 and expediency. 
 
 ' Circumstances like this occur in the European colonies in Africa. 
 
§ 138.] 651 
 
 ment if committed in a well-ordered State,^ or of acts which 
 could be excused by the actual circumstances in which the 
 subject of the civilised State is living,^ it is necessary that 
 the power of punishment should be extended to the acts of 
 subjects beyond the territory. 
 
 The following considerations, however, will confirm the 
 extension of the criminal law to acts of subjects of the State 
 committed abroad. 
 
 In the first place, according to the principles of public 
 law, crimes committed on board of ships upon the high seas 
 are considered as having been committed in the territory of 
 the State whose flag the ship is entitled to carry. Although 
 this extension of criminal law is founded on the fiction that 
 the ship upon the high seas constitutes a roving portion of the 
 territory of the State, this is a mere fiction, and the true reason 
 of it lies in this — that no State has rights of sovereignty upon 
 the high seas, and that, therefore, unless law and order are to 
 be at an end there, the subjects of the State must continue 
 to live according to the law of their native community ; and 
 foreigners who walk the decks of the ship shall be received 
 into this community just as if they were treading the terri- 
 tory of the State.^" 
 
 In the second place, persons who by public international 
 law may plead extra-territoriality, are subject to the criminal 
 law of their native States, except in so far as, like their 
 sovereign, they are exempt from criminal law altogether. 
 This, too, can only be explained upon the footing, that when 
 the criminal authority of another State does not step into 
 the place of that which is wielded by the native State, then 
 the latter continues in operation. 
 
 Thirdly and lastly, even England — apart altogether from 
 the punishment which is inflicted upon British subjects, 
 in conformity with her own law, and before her own courts, 
 for certain crimes, quite without regard to the place where 
 
 * E.g., prohibition against taking the law into one's own hands. 
 
 s E.g., he may buy a slave, and make use of him on a journey through the 
 uncivilised country. An act which in the civilised State could not be recog- 
 nised as an act of self-defence may have that excuse when committed in a 
 barbarous country, where there is no well-ordered Government. 
 
 w [See note at end of the paragraph.] 
 
Go 2 [§ 138. 
 
 they were committed, — by virtue of special treaties concluded 
 with the heathen nations of the East, or by virtue of a con- 
 suetudinary international law, punishes crimes committed by 
 British subjects in those countries ; " and in France, French- 
 men, if they have been guilty of a crime in a heathen 
 country with which France has concluded a treaty for the 
 exemption of her subjects from local jurisdiction, and also 
 where conditions which are in the ordinary case required for 
 the criminal prosecution of Frenchmen are unattainable, are 
 punished according to the' law of France.^^ The reason of 
 such a procedure on the part of England and France, 
 observed, too, by other powers, lies in this — that they will 
 not subject their own subjects to be tried and punished by 
 barbarian rules of law before judges who stand upon quite 
 a different grade of civilisation, and that, therefore, the 
 legislation and the courts of the native State will step in 
 wherever the necessary confidence in order and administra- 
 tion of justice cannot be placed in the foreign State. 
 
 Fourthly, England, in spite of the principle of territoriality 
 which is generally so stringently adopted by English jurists, 
 subjected all crimes against property or person committed 
 anywhere by British seamen, on board ship or on shore, by 
 the Merchant Shipping Act of 1854,^* to the jurisdiction of 
 the Court of Admiralty, a legislative Act which it is difficult 
 to reconcile with the theory that crimes have a mere local 
 import.^* , 
 
 The most important proof of the extension of criminal law 
 advocated above is, however, in the fifth place, the rule .advo- 
 cated by almostall the adherents of the principle of territoriality^* 
 
 '1 See Lewis, p. 14, on the Acts of Parliament regulating this criminal law, 
 6 & 7 Vict. c. 94, and 38 & 39 Vict. c. 85. 
 
 12 Of. Foelix, ii. p. 297, and the judgment of the French Court of Cassation 
 there cited. 
 
 " Cf. Lewis, p, 24. 
 
 1* Various Acts of Parliament extend the jurisdiction of British courts to 
 the crimes of murder and manslaughter committed in certain unciTilisgd 
 countries by any person who has been conveyed thither on board of a 
 British ship, Lewis, p. 25. 
 
 '* Kiistlin alone seems disinclined, in the first instance, to allow these 
 exceptions, or rather is inclined only to allow them in so far as the State in 
 whose territory they are committed does not impose the same punishment as 
 if the act had been directed against itself. 
 
S 138.] 653 
 
 — a rule, in fact, that is quite indispensable — that the crimes of 
 any subjects against the State continue to be subject to the 
 criminal law of their own State, although they may be com- 
 mitted in another country. ^^ We have already seen that to 
 consider this crime as a breach of faith — a course adopted 
 by various authors, in order to reconcile this rule with the 
 principle of territoriality — leads to the so-called priuciple of 
 personality. Just as little can we recognise the fiction 
 invented by English jurists in order to avoid the discrepancy 
 — -viz., that treason is not tied down to any particular local 
 seat ; or the ground advanced by Lewis — viz., that crimes 
 against one State cannot be brought to. judgment by any 
 other State in whose territory they have been committed. 
 This latter reasoning would rather prove that such acts were 
 not amenable to the criminal law at all, if it be true that the 
 principle of territoriahty is correct. 
 
 Lastly, it needs no argument to show that in appealing to 
 the arguments of self-defence and self-preservation, the prin- 
 ciple of territoriahty is abandoned. 
 
 According to the principles here laid down, no weight can 
 be laid on the circumstance that the injured party is a native 
 or a foreigner as affecting the culpability of a subject who 
 has committed a crime abroad. Criminal law does not, in 
 our view, spring from any protective principle, but from a 
 reaction of the State against the guilty will, which is present 
 in the one case as much as in the other. ^^ 
 
 The result of this consideration seems in practice unim- 
 portant.^* 
 
 If The Act of 35 Hen. VIII. c. 2, settles this for England. See Lewis, p. 20. 
 [See the provisions of the new German Criminal Code, quoted supra, note 3.] 
 
 1' The character of the person injured, as a subject of the State or not, is 
 not considered, even in crimes committed within the State (Martens, § 100 ; 
 H^lie, p. 49). In relation to literary and artistic property, see supra, § 88, 
 in treating of the law of obligations. The exception is only apparent. 
 
 1' Ortolan (No. 898) remarks : " What matters it whether the murderer, 
 the fire-raiser, the thief, or the cheat, who lives in my neighbourhood, has 
 murdered, robbed, or cheated a Frenchman or a Belgian in Brussels, or has 
 set fire to the house of an Italian or a Frenchman ? I, and everybody else 
 have as much ground in the one case as in the other for procuring the punish- 
 ment of the guilty, and in both cases have just the same interest in it." Of., 
 too, the decision of the English Central Criminal Court reported in Lewis, 
 p; 23', Eeg. v. Azzopard. 
 
054 [§ 138. 
 
 In the case of many crimes {e.g., blasphemy or incest), no 
 private person can be pointed out as an injured party, and, as is 
 not disputed, it does not in any way constitute the essence of a 
 crime, — although it may be necessary for the realisation of 
 manydifferent crimes, — that any special legalright shouldsuffer. 
 
 But as regards the right of the State to punish foreigners,^* 
 who may commit in a foreign country acts prejudicial to the 
 State or its subjects, it is to be remembered that foreigners 
 are not bound to pay any heed to the ways and means which 
 our State takes to attain the aim of its being ; indeed, it 
 may be that, as is the case in uncivilised States, they have 
 views diametrically opposed to ours as to the means by 
 which the individual may be perfectly developed within the 
 State. If we propose to compel foreigners to respect our 
 laws in their own country, this is simply to declare that the 
 regulations by which we attain the final end of our State 
 are the only justifiable regulations, and to extend the terri- 
 tory of the State beyond its bounds.^" 
 
 To this we must add that there is no obligation on a 
 foreign State to suffer the presence of our subjects within its. 
 territory, and even if there were a complete obligation of such 
 a kind, it could only be pressed against the State itself by 
 means of public law, not against its individual subjects by 
 means of criminal law. The foreign State has to fix under what 
 conditions it will suffer the presence of our subjects within 
 its territory, and what rules it will prescribe for the intercourse 
 of its permanent or temporary subjects with our subjects.^^ 
 
 As regards the case of an act that is prejudicial to a 
 private person who belongs to our State, there cannot even 
 be any considerations of expediency urged for the extension 
 of the criminal law in such a case. Every civilised State 
 punishes common crimes without caring whether they have 
 been committed upon a foreigner or a native subject. The 
 
 10 Bauer, § 40 ; Henke, i. p. 604 ; Feuerbach, § 31 ; Heffter, Strafr. § 26, 
 note 4 ; Leonhardt, Comm. i. p. 67. 
 
 2" The defence of the opposite theory attempted by H^lie (p. 591)— viz., 
 " That undoubtedly the criminal is not subject to our laws, but it must be 
 presumed from his conduct that he has consented to be tried by them," does 
 in reality merely imply a disguised admission of our theory. 
 
 21 Cf., too, the decisions of the English courts reported by Lewis, p. 22. 
 
§ 138.] 655 
 
 Prussian Code, therefore, rightly renounces all claim to punish 
 crimes committed by foreigners upon Prussian subjects ; in 
 the "motives" it gives the reason just mentioned — viz., that 
 the conception of crimes committed against a person is very 
 indefinite.^^ 
 
 On the other hand, it seems all the more necessary to 
 insist upon the punishment of crimes against the State com- 
 mitted by foreigners in a foreign country, as most States 
 either do not punish at all the crimes that are committed 
 against other States, or at least visit them with a much 
 lighter _ penalty than is imposed upon the like crimes com- 
 mitted against their own State. The codes of the continent 
 of Europe extend the provisions of their criminal law which 
 deal with offences against the State to the acts of foreigners 
 in a foreign country, except, of course, in cases where the 
 foreigner, in doing what he did, has discharged a duty to his 
 country which international law must recognise ; some codes 
 do so with reference to all possible crimes against the State, 
 others limit it to certain specified crimes. ^^ It does not 
 
 ^^ Beseler, Comm. p. 46. It is at the same time to be remembered that 
 we need not allow a foreigner to remain in this country, and that the matter 
 may be worked out by extradition or the banishment of the ofl'ender. The 
 so called Thuringian Code, art.. 2, only allows an act to go unpunished if it 
 was not directed against that country, its sovereign, its officers, or its 
 subjects. 
 
 ^^ Almost all German codes belong to the first class. From what has been 
 said in previous notes, it is obvious that some kinds of treason cannot be 
 extended to foreigners. The Prussian Code of 1851 is a code of the second 
 class ; § 4 : " Criminal proceedings may be taken, and punishment imposed 
 in Prussia according to Prussian law — 1st, if a foreigner has committed an 
 offence abroad against Prussia, which is defined in this Code as an act of high 
 treason, or treason-felony, or a coining offence ; " the Codes of Oldenburg, 
 Anhalt Beruburg, and Waldeck agree with this. The provisions of the 
 Prussian Code as to " landesverrath " have no application to foreigners 
 abroad. The Code d'Instruction (of. supra, § 133, note 9) is also to be added 
 to this list. The Code of Austria, and that of Sardinia of 1839, which claim 
 a subsidiary right to punish all crimes committed in another country, consider 
 themselves as competent to try in the first instance certain specified crimes 
 against the State, and the Austrian Code, departing, in the case of this crime, 
 from the principle which it lays down for other crimes, — viz., that the rule of 
 punishment which exists at the place of the deed shall be applied if it is 
 more lenient, — applies its own rule of punishment exclusively (§§ 38-9). The 
 crimes thus specially dealt with by the Austrian Code are high treason against 
 
656 [§ 138. 
 
 require any further discussion to show that in a strict legal 
 sense this extension is not to be justified upon the principles 
 already laid down.^* But, since a right to inflict punishment 
 may also be founded on the necessity of threatening assailants 
 with punishment so as to avoid, any such assaults in time to 
 come,^^ we can, no doubt, justify an exercise of the right of 
 self-defence, taking the shape of criminal jurisdiction, so long 
 . as there is a possibility that the State may be endangered by 
 hostile acts of foreigners in a foreign country. But when the 
 danger comes to an end, then the right of self-defence which 
 has been exercised in that form must also come to an end.^^ 
 
 The danger, however, does not exist, at least in any sense 
 in which it may be prevented by an exercise of criminal 
 jurisdiction, if the foreign State, in whose territory, or by 
 whose subjects these acts of hostility are committed, threatens 
 them as hostile acts against a friendly State, with a punish- 
 ment such as our law would pronounce sufficient for a 
 hostile act of a similar character directed against a friendly 
 State. 
 
 Closely considered, it is not reconcileable with a just esti- 
 mate of the guilt of any attempt that a foreigner in a foreign 
 
 the Austrian State or the German Blind, and forgery of Austrian Govern- 
 ment notes, or coining. See Foelix, ii. p. 299, on the Code of Sardinia. 
 
 ^ Subjects of a hostile State, in so far as they have not, like the enemies' 
 troops, the privileges of extra-territoriality, are temporary subjects, subditi 
 temporarii, of our State, and subject, therefore, to our criminal law ; they 
 must discharge a duty to the State of their domicile, and that is recognised in 
 international law. Of. Prussian Code, § 70, div. 2, and the somewhat differ- 
 ent provisions of the Bavarian Code of 1861, art. 114. 
 
 ^ The difference between this and a true criminal jurisdiction consists in this, 
 that this apparent jurisdiction ceases so soon as the danger is past. So, for 
 instance, by virtue of it the spies of the enemy may in time of war be shot, 
 whereas, after the war is over, subjects of the enemy cannot any' longer be 
 brought to judgment for having acted as spies during the war; Cf. Heffter, 
 p. 419. 
 
 2" Berner, p. 146, lays down that the State, which does not punish the 
 crimes of its own subjects against our State, throws us back into a state of 
 nature which will give us a natural right to punish the offender. This may, 
 however, be disputed. In a state of nature, if we can associate with that 
 expression any distinct idea at all, there is no criminal law. Cf., too, 
 Halschuer, pp. 66-7, who holds the criminal jurisdiction we speak of as a 
 right exercised as by delegation from the State which is properly entitled to 
 punish. 
 
§ 138.] 657 
 
 country may make against our State, that he should he 
 punished according to the same rules of law as would he 
 applied if the act had been committed by one of our per- 
 manent subjects, or a person resident temporarily in our ter- 
 ritory. It is plain that a subject of the State and a foreigner 
 who is resident there owe different and far stronger duties to 
 the State whose protection they enjoy than other persons who 
 stand in no relation whatever to that State.^'' Equity, there- 
 fore, requires that if the State against which the attempt is 
 made is to be allowed to exercise any criminal jurisdiction at 
 all, no other law of punishment should be applied than that 
 by which the hostile acts of our subjects against foreign States 
 will be judged and punished.^* The only purpose which the 
 opposite theory can serve, by ignoring the characteristic dis- 
 tinction which exists between the guilt of subjects perman- 
 ently or temporarily resident in a country, and that of 
 foreigners in a foreign country, is to confuse the legal con- 
 science as to the gravity of the crime of the former, and so 
 to harm the State rather than to profit it. The essence of 
 the crime of the former lies in the breach of faith ; that of 
 the latter can only be represented as putting international 
 peace in jeopardy .^^ 
 
 The reasons which are urged in support of a right to 
 punish crimes against the State, even when committed by 
 foreign subjects in a foreign country, as being a means of 
 self-defence, are by no means of so persuasive a character as 
 they might at first sight seem to be. We might count with 
 some assurance upon the improbability of a foreigner, who 
 has been guilty of an attempt against our State, falling into 
 our power. At the same time, a really dangerous undertaking 
 against bur State could hardly be carried on without falling 
 within the reach of punishment in a foreign country under 
 the category of a common-law crime. If we remember, 
 lastly, that our subjects who join a conspiracy in a foreign 
 country with foreigners to overturn our constitution, remain 
 subject to our law, while hostile enterprises undertaken by 
 
 27 other arguments will be added infra, § 150. 
 
 28 So, too, Earner, p. 156; Halsohner, p. 67. 
 2» Of. infra, notes 32-3. 
 
 2 U 
 
658 [§ 138., 
 
 private persons in arms against our armies in an enemy's 
 country are treated according to martial law, there seems to 
 be hardly sufficient reason for going beyond the proper limit 
 of the criminal jurisdiction of the State, especially since a 
 hasty use of any such jurisdiction over foreigners in their 
 own country^" might give rise not merely to unfayourable 
 treatment of our subjects on the part of the foreign State, 
 but also to diplomatic complications of the most disagreeable 
 kind.^^ The only adequate ground for an exception would 
 be the special position of some State with a complicated 
 frontier, and with provinces separated from each other by 
 interjected parts of the territories of other States, and so 
 easily open to be threatened from these intervening districts. 
 Even then there would require to be this limitation, that 
 foreigners in the foreign country should only be liable to 
 punishment for acts which the legal principles common to 
 
 2" We must, for instance, remember that, according to the words of many 
 <;odes, speeches uttered by the subject of a foreign State, who might proceed 
 in the most loyal persuasion upon the belief that his fatherland was about to 
 suffer a grievous wrong from another conntry, fall under the definition of high 
 treason, and, according to the Code of Brunswick, as being an incitement to 
 a foreign Government to go to war, under that of treason-felony. If we pro- 
 ceed upon the footing (cf. Hannov. C. G. B. art. 121, and the analysis of the 
 Code of Brunswick in Breymann, pp. 235-36) that rules as to the international 
 force of penal laws have no place in a statute book, and believe that we 
 have avoided all difllculties by excluding the application of the ordinary 
 penal law as to State offences from foreigners in all cases which are to be 
 ruled by public law, we shall forget that in the domain of international 
 criminal law no line can be drawn between rules of criminal law and rules 
 of public law, and that it is just upon this point that there is a gap in the 
 series of statutory provisions. At all events, we cannot recognise as adequate 
 the limitation that the penal law against treason should only cease to have 
 its application, after war has been regularly declared, to acts done by the bel- 
 ligerent in prosecution of the hostilities (cf. Breymann, pp. 240-41). If the 
 principles laid down in the " motifs " of the Brunswick Code were actually 
 to be carried into practice by all States, no person would venture publicly to 
 advocate a declaration of war against another State, unless he was willing to 
 run the risk of being punished by this other State, if opportunity offered, as a 
 traitor. 
 
 M This is particularly true of Germany, in so far as the deed might be com- 
 mitted within the territory of the German Bund, and within any State of the 
 kind which does not punish crimes against the Governments that make up 
 the Bund. (On the latter point, see Haberlin, Gundsatze des Criminalrech- 
 ter. ii. p. 49.) 
 
§ 138, Note EE.] 659 
 
 all lands pronounce to be peaal offences against the State. 
 It would be contrary to equity to give sucb an extension to 
 particular rules of law wMch exist only in certain countries ; 
 for a man might then be punished for doing something which 
 the legal notions of the people among whom he lived would 
 never have imagined to be illicit.^^' ^^■ 
 
 Note EE, on § 138. 
 
 [The reason suggested in the text (p. 651) for holding the 
 ships — 1.6., the merchant ships — of any State as a part of the 
 territory, wUl not, however, suffice to support the extension 
 which has been given to this fiction by various legislative 
 provisions, treaties, and judicial decisions. For example, 
 a merchant ship even when lying in a foreign port retains 
 her nationality and extra-territoriality. The Merchant 
 Shipping Act of 1854 provides that the jurisdiction of 
 English courts shall extend to punish offences committed in 
 any place either ashore or afloat out of Her Majesty's 
 dominions by any master seaman or apprentice employed in 
 any British ship (§ 267). The English courts have gone 
 further than this, for in the case of the Queen v. Anderson 
 (16th November, 1868, 1 C. C. 161), the court held that in 
 the case of a murder committed on board a British ship by 
 one American citizen upon another, the ship at the time 
 
 32 The Code d'lnstruction, art. 6 (cf. swpra, § 133, note 9), makes use of the 
 cautious expression, " Cette disposition pourra Ure iUndue aux Strangers." It 
 ■was intended to impose upon French ministers of law the greatest caution. 
 Cf. the debates as to the expression in the Code given in Berner (p. 151). 
 Treilhard and Bigot-Pr6ameneu, especially spoke against such an extension 
 of French statutes. The Prussian Code, too, in the same connection, uses 
 the expression : "Jedoch kann in Preussen bestraft werden, 1st ein Auslander," 
 &c. (See, too, the Code for Anhalt Bernburg and Waldeck). Cf. Beseler, 
 Comm. p. 74. 
 
 33 It seems that England does not punish crimes against the British monarchy 
 committed [by foreigners] abroad. This seems at least to be the result of 
 the following proposition of Blaekstone (quoted by Stephen, ii. p. 337) : 
 " Local alletnance is such as is due from an alien or stranger-born for so long 
 a time as he continues within the king's dominions and protection ; and it 
 ceases the instant such stranger transfers himself from the kingdom to, 
 another. Natural allegiance is perpetual, and local temporary only." 
 
660 [MteBE.. 
 
 lying in the Garonne in a French, port, the crime was cognis- 
 able In the English courts; the judges did not base their 
 judgment on the Merchant Shipping Act, since that might 
 be held to apply to British subjects only, but on thejurisdic- 
 dictioa of the Admiralty transferred to the common-law 
 courts by 28 Henry VIII. c. -15. There might be, it is 
 admitted, a concurrent jurisdiction in the French courts, but 
 this, says M. Ortolan, will not be asserted against the crews 
 of foreign merchant vessels unless the aid of the French 
 authority is invoked by those on board, or unless the offence 
 committed leads to some disturbance in their port (Diplo- 
 matic de la Mer, bk. 2, ch. 13, pp. 267-71, 4th ed.). The 
 law of England will visit with punishment offences committed 
 by a foreigner on board a foreign ship, not merely if it is 
 committed in a British port, but anywhere within one marine 
 league of the shore upon the open sea, 41 & 42 Vict. c. 73, § 2. 
 
 The Supreme Court of Mexico, in the case of Antoni, 25 th 
 February, 1876, have determined that they will not entertain 
 a charge of murder made against a Frenchman, his alleged 
 victim being a Frenchman, and the offence committed on 
 board a French ship in a Mexican port. This decision pro- 
 ceeds upon the terms of a treaty with France. 
 
 The principle of attributing to the ship the character of 
 being part of the soil of the country to which it belongs, is 
 further illustrated by a decision of the Supreme Court of 
 Turin, on 14th April, 1880, in the case of Simili, where it 
 was held that the court of the province on the registry of 
 which the ship stands in Italy is the proper tribunal to take 
 cognisance of offences committed on board of her, in place of 
 the court either of the birth or the domicile of the accused. 
 
 The English courts, as we have seen, admit a concurrent 
 jurisdiction in the case of ships lying in a foreign port, and, 
 of course, in the event of such disturbance as interfered 
 with the peace of the port, the authorities there must 
 necessarily be invested with power to quell it. (Cf; in the 
 United States courts, Commonwealth v. Luckness, 14th 
 February, 1880, Quarter Sess. of Philadelphia.) 
 
 In the important case of the Franconia (Queen .v. 
 Keyn, 2 Ex. Div. 63, 13th November, 1876), where it was 
 sought to try the captain of a German vessel, who had rlin 
 
Note EE.] 661 
 
 down an Englisli vessel in the channel within three miles of 
 the English coast — many lives being lost by the collision — in 
 the criminal' courts of England ; the judge before whom the 
 case first depended sustained his jurisdiction, but on a new 
 hearing in the Court of Crown Cases reserved, the judges of 
 England by a majority refused to do so. Kelly, C. B., and 
 Sir R. PhiHimore were of the majority, and held that the 
 power of a nation over the sea within three miles of its coasts 
 is only for certain limited purposes, and that Parliament 
 could not consistently with these principles apply English 
 criminal law within those limits. " Liberty of navigation," 
 said Sir R. Phillttnore, " is a fact recognised by all civilised 
 States. An important corollary of this proposition is that 
 the merchant vessel on the open sea is subject only to the 
 laws of her flag — i.e., the laws of the State to which she 
 belongs." A large and weighty minority, however, took a 
 different view, and the statute of 41 & 42 Vict. c. 73, passed 
 in 1879, confers the jurisdiction for which they contended. 
 
 In the case of the Attorney-General for Hong-Kong v. 
 Kwok-a-Sing, decided by the Judicial Committee of the 
 Privy Council, on 19th June, 1873 (5 P. C. 179), the question 
 arose under the terms of the Hong-Kong Ordinance of 1850, 
 whether a Chinaman, who had murdered a Frenchman on 
 board a French ship on the high seas, should be detained in 
 custody in the English colony. The Ordinance provides that 
 any Chinaman who has committed any offence against the laws 
 of China may be imprisoned and surrendered to the Chinese 
 Government. The accused in this case demanded to be set 
 at liberty, and the Lords of the Privy Council, whose opinion 
 was delivered by Lord-Justice Mellish, held that in so far as the 
 charge of murder went, he was entitled to be set at liberty — 
 in the first place, because looking to the terms of the 
 ordinance, it was not to be presumed without evidence that 
 the law of China would punish a Chinese subject for the 
 murder of a foreigner in foreign territory ; and in the 
 second place, because as the offence had been committed on 
 board a French ship it had been committed on French 
 territory, and the offence was therefore one committed 
 against French municipal law. The prisoner was, however, 
 detained upon a charge of piracy.] 
 
662 [§ 139. 
 
 § 139. 
 
 Let us now inquire what modifications are caused by thp 
 circumstance ttat the act which is criminal by our law has 
 been committed by one of our own subjects within the 
 territory of a civilised State with which we live in inter- 
 national intercourse, and whose power of settlirtg the pro- 
 visions for maintaining law and order for aU persons there 
 found, and, therefore, for our own subjects also if they 
 should be found there, we are bound to recognise. 
 
 One immediate result is, that an act sanctioned by the law 
 of this State cannot be visited with punishment by our State, 
 although the person committing it was one of our subjects, 
 and the act would be open to punishment by the law of this 
 country. The State, by permitting her subject to take his 
 personality even temporarily into foreign territory, guaran- 
 tees to him all the privileges given by the regulations of this 
 foreign State, a proposition which is confirmed by the remark 
 already made, the truth of which is on all sides recognised, 
 that it does not seem right to impose punishment according 
 to the law of the domicile of the person committing the act, 
 if that act must be held as excused by the actual state of 
 facts which exists at the place where it was committed, and 
 by which it is influenced. For it must be maintained that 
 the State in whose territory the act took place is the best 
 and only competent judge of whether the act has a criminal 
 character, looking to the actual circumstances of the country, 
 its inhabitants, and their customs.^ Thus, then, we may put 
 aside the arguments advanced against the absolute obligation 
 of a subject to the penal law of his domicile, and the law of 
 the domicile ceases to be, as Lewis expresses it, a noose 
 about the necks of its subjects, which hampers thoir free 
 
 1 Eecognised in tlie Altenburg C. G. B. art. 2 (cf. Wachter, Sachs. Strafr, 
 p. 133, note 6), and in the Prussian St. G. B. § 3, to which latter the Codes 
 of Anhalt, Bernburg, and "Waldeck give their adherence. Beseler'a Oom- 
 aentary, p. 77, runs : " There must be some entirely unassailable grounds of 
 expediency adduced to warrant any system of law being carried so far as to 
 punish one of its subjects returning from a foreign country, for . acts com- 
 initted in a foreign country under, the shield of a regular system of la,w, and 
 quite in accordance with its provisions." In my view the same result follows 
 indirectly, unless there are any special provisions to the contr?^ry in the case 
 
§ T39.] 663 
 
 movement in a foreign land, and ceases to be a source of 
 conflict "with the local system. According to the reasons 
 given here for the exemption of a person from punishment 
 in such a case, we need no further proof of the injustice of 
 the limitation contained in some statute books, which re- 
 quires, in order that a person may escape punishment, that 
 the act shall not have been directed against the fellow- 
 countryman of the person who does it,^ and it is unnecessary 
 to mention the practical difiieulties which such a limitation 
 would bring forth.*'* 
 
 of legal systems whiGh, like the Criminal Procedure Code of the Netherlands, 
 art. 10 (cf. Berner, p. 108) provide that no criminal procedure shall take 
 place, if a subject of their State shall have been acquitted by the courts of 
 the State where the act was done ; for if the act is not criminal at that place; 
 the judge would of course acquit of any such charge. 
 
 2 To this effect the Hanoverian C. G. B. art. 2 ; Baden St. G. B. §§ 4-6; 
 Bavarian St. G. B. of 1861, art. 10. (The Code of Baden puts the limita- 
 tion in this way : if the act " was directed against a person in this country." 
 In that are not included acts directed against natives of Baden in a foreign 
 eountry, but acts directed against foreigners who happen to be in Baden are. 
 All subditi temporarii are here substituted for permanent subjects). St. G. B. 
 of Thuringia (see Wachter, Sachs. Strass. p. 132). The maxim, " Volenti non 
 fit injuria " — a maxim which, by the way, has no application to criminal law 
 — will not account for the non-criminality being determined by the law of the 
 State where the act was done, as was assumed in the Hanoverian Diet ; for 
 the State in whose dominions the act was done need not necessarily be the 
 State whose subject has been injured (cf. Leonhardt, Comm. i. pp. 54-5, and 
 Kostlin, pp. 45-6). On the other hand, the maxim, " Volenti non fit injuria," 
 bears out the principle that it is this latter State that has the right of punish- 
 ment, as does also the provision actually laid down in the St. G. B. of Wiir- 
 temberg, art. 3, No. 1, by which the act of a native committed in Wiirtem- 
 berg is not to be punished, if it is directed against a foreign State, its oflBcers 
 or subjects, and is not liable to punishment by th? law of that State. 
 
 3 Cf. supra, § 138, note 9. Quid juris if for instance the law of the one 
 country holds that a person wounded in a duel is an injured party, while 
 that of the State to which the wounded person belongs holds that in a duel — 
 unless there be death by treachery oi: other fault — there is no injured party. 
 Wachter, pp. 132-33, proposes to exempt from this exemption offences against 
 morals. But in a strict sense every offence is so, and the reasons of expedi- 
 ency assigned for the recognition of an exemption from punishment according 
 to the law of the place where the act was done, seems to have special force in 
 crimes that are called offences against morality. 
 
 * Any act is for the particular case exempt from punishment, if it requires 
 the motion of some private person to bring it to justice, and no such motion 
 is made, cf. Schwarze, p. 191. 
 
664( [§139. 
 
 We have only a single exception to make to the recog- 
 nition of the non-criminality of an act which bears that 
 character in the country where it was done. That exception 
 includes all crimes directed against the sovereign rights of 
 the home State of the person who commits them, such as 
 high treason, treason-felony, slander against the sovereign or 
 his Government, rioting, breach of official duty, and, lastly, 
 coining offences and acts of the same kind as those enumerated. 
 
 This CKception to the principle of territoriality, recognised 
 in systems of law,^ is, as a rule, established upon the considr 
 eration that in a foreign State such crimes are either not 
 punished at all, or are threatened with a sentence dispropor- 
 tionately slight as compared with what is imposed in the case 
 of crimes against that State itself ; and some doctors go so 
 
 * Cf. Villefort, p. 32 ; Code d'lnstruotion, art. 5. (Here the limitation pro- 
 vided in the 7th article for, the prosecution of private offences is inapplicable, 
 " iil (le Francais) n'a paS iti poursuivi d jugi en pays Mranger." The 
 Sardinian Code is formed on the model of the Code d'Instruction in this 
 respect ; of. its 5th article, with articles 6th and 10th of the other (see Fosliic,, 
 ii. § 588). The Criminal Procedure Statute of the Netherlands off 1st 
 October, 1838 (translated and given by Berner, p. 107), provides in its 8th 
 article : " The Netherlander who is found guilty, actor or art and part, of any 
 offence against the criminal law, by which, according to the express provisions . 
 of the peual code, the peace or safety of the kingdom is imperilled or dis- 
 turbed, or who commits any breach of the law applicable to the coin, 
 authorised to be circulated in this kingdom, or who imitates or alters any 
 public property, or any property created by statute, or bank notes authorised 
 by statute, or seals, stamps, or tokens used publicly in this kingdom, shall 
 be prosecuted and punished according to the law of the Netherlands, withovit 
 regard to the law of the country where the crime was committed, and irre- 
 spectively of whether its law imposes a more or less severe penalty, or 
 imposes no punishment at all upon the act in question." Prussian Code, § 4 : 
 "It is, however, competent to prosecute and punish in Prussia by Prussian 
 law. . . . 2nd, Any Prussian who has been guilty of high treason or treason- 
 felony agiiinst Prussia, or slander of the sovereign or his Government, or 
 coining in a foreign country." The other exceptions and mitigations of pun- 
 ishment, provided in subsection 3rd for other offences committed by a 
 Prussian abroad, do not apply to the cases mentioned in the 2nd subsection. 
 ■Cf. § 4 of the Code for Bernburg and Waldeck. The Code for Hesse and,, 
 Nassau,, by article 5th, punishes foreigners who have been guilty of the follow- 
 ing crimes in a foreign country, if they shall come to Hesse or Nassau : High 
 treason, treason-felony, slander of the sovereign or his Government, rioting, 
 flooding, forgery pf , public stamps or seals, or stamp papers, or imitation of 
 money or, notes circialatiug in the country or used in its trade. 
 
§139.] 665 
 
 far as to ask^ that every State should be bound to jpunish 
 such crimes, when directed at a foreign State, as severely as 
 if directed against itself. If we admit the truth of the prin- 
 ciples already laid down as to the binding force of the law 
 ■of the domicile, we do not stand in need of any such justifi- 
 cation as this, which merely leads back to the idea of self- 
 defence. For although our State may entrust the conduct 
 of its subjects in a foreign country, even in their relations 
 with their own countrymen, to the regulations for order pro- 
 vided by the State where they happen to be, we cannot 
 assume the same to be true in the case of crimes by which 
 any peculiar right of a State, its dignity or its existence, is 
 threatened : it would be contradictory to the highest duty of 
 the State, the duty of self-respect and self-support, to make 
 the punishment of crimes of this kind, committed by its own 
 subjects, dependent on the value which any foreign Govern- 
 ment may attach to the rights of another State. '^' *' ^ 
 
 * Kostlin, p. 44 ; Witte, pp. 49, 60. From the theory which speaks of a 
 right of exercising criminal authority by delegation from that foreign State 
 in whose territory the act was done, important results, to be noted below, 
 § 143, arise. 
 
 ' As to another argument, on which MarezoU and Halsohuer specially rely, 
 see supra, § 132 ad fin. 
 
 * If a subject is compelled by a foreign State, in whose territory he happens 
 to be, to do an act against his own country, he is, of course, excused, unless 
 he has culpably brought himself into that position. The " motif" of the Code 
 of Brunswick, §§ 84-5, explains upon this head very properly (Breymann, 
 p. 241), that there may also be cases in which subjects who carry arms against 
 their own country will not be considered as traitors. In many cases — e.g., 
 in Austria — it is admitted as a principle that foreigners who enter upon active 
 military service do not thereby become subjects, and do not lose their 
 original allegiance. If, then, such persons, while in that service, continue in 
 it after a declaration of war, they could not be punished as traitors without a 
 formal proclamation being first issued to them. I should take this view, that 
 even in that case, if it was not open to the subject to leave this foreign service, 
 and if, at the same time, he had entered it with the approval of his own 
 country, he would be exempt from all punishment. If a State gives its 
 approval to his entry upon foreign service, it cannot call him to account for 
 the conflicts arising out of that circumstance. This is the result of the 
 principles already laid down (§ 30), which determined that where a person 
 enters into a foreign service, the reservation of his previous allegiance has 
 only a latent import. The 111th Article of the Bavarian St. G. B. of 1861, 
 provides 5 "A Bavarian who takes service in a foreign army after war has been 
 levied by it upon Bavaria, shall be punished with death. The same panish- 
 
666 [§ 139. 
 
 As for the view that every State must punisli treasonable 
 practices against another State, just as if they had been used 
 
 ment shall be inflicted on a foreigner in the service of Bavaria who does so, 
 unless the foreign army be the army of his own native country. If, at the 
 outbreak of war against Bavaria, a Bavarian is already serving in the army of 
 the hostile State, and remains in it voluntarily, he may be punished with im- 
 prisonment." Here the first tie of allegiance is held (against our view) to be 
 the stronger, and entitled to prevail. It may be remarked in passing, that, 
 since force used by a foreign State releases its object from criminal responsi- 
 bility, it cannot be accounted treasonable if, during an enemy's occupation, a 
 subject shall give obedience to his regular requisitions and regulations. Cf. 
 Haberlin, ii. p. 40. 
 
 ' No general definition can be given of the crimes that have the peculiarity 
 of being offences against the sovereign rights of the State, its dignity and 
 existence ; that must be left to the spirit of the particular system of law, if it 
 does not, like the Prussian Code, expressly and specially enumerate them ; 
 this inquiry will in practice lead to much doubt and difficulty. At the same 
 time, if the rule, that in doubt the interpretation must be in favour of the 
 accused, is observed, it is possible to work it out, and according to the pro- 
 visions of some laws is not necessary ; for instance, by the Criminal Code of 
 Hanover, the punishment of foreigners for crimes committed by them abroad 
 is excluded if the act, although it may have been directed against the king- 
 dom of Hanover, is not subject to punishment by the law of the place 
 where it was done. For although indirectly every crime may be viewed as 
 an invasion of the rights of the State (of. especially Dollmann in Bliintschli's 
 Staatsworterbuch, i. p. 512), and crimes of any kind, if they are committed 
 daily and hourly with impunity, must in the long run endanger the very ex- 
 istence and the proper rights of the State ; yet there is a broad distinction 
 marking out that cluss of crimes which, even if but once committed, would 
 have this result. These are not what we term political crimes, but trespasses 
 upon the exclusive rights of the State, especially upon the privilege of mak- 
 ing and bringing into circulation coin or notes (cf. Leonhardt, Comm. i. p. 
 71). If by special Government license, private persons or corporations have 
 the right of issuing notes of credit, or notes payable to bearer, this seems to 
 be an authority derived from the right which the State enjoys, and the forgery 
 of such notes seems to be a crime against the State. Cf., e.g., Prussian St. G.B. 
 2, 121-24 ; Code d'Instruction, art. 5. There is, however, nothing to prevent 
 an offence against the proper privileges of the State being at the same time an 
 offence against some other legal right, — as, for instance, the crime of coining im- 
 plies at the same time an offence against honesty and good faith in trade ; on this 
 account some systems of law punish coining offences committed within their 
 territory, not merely if they refer to their own coinage, but even although 
 they refer to foreign icoins circulating there, and frequently with precisely 
 the same punishment, while some systems do not even require that the money 
 should have a circulation there. Of., e.g., the 0. G. B. of Hannover, art. 200 ; 
 Brunswick C. G. B. art. 126 ; Russian St. G. B. § 121. A special defini- 
 tion of the crimes that.fall under this head is, however, always to be preferred — 
 
§139.] 667 
 
 against itself, it is almost universally acknowledged that such 
 an extension is by no means obviously riglit,"^a view justified, 
 too, by history, as Zacharia points out. 
 
 In the days of Eoman law it was only a person who was 
 found guilty of a crime against the people of Kome, the 
 republic, or in later times the princeps who was said to 
 commit the crime of majestas. Foreign States are only men- 
 tioned as being capable of being incited to hostility against 
 the Koman republic." The particular rules of older Germanic 
 public law exhibit a like limitation of the corresponding kind 
 of crime to the native State : '^ the law of the German 
 empire knew no treason save against the emperor and the 
 empire, which any subject or adherent of the emperor might 
 commit ; just as in later times treason of a different kind, 
 against any supreme lord, was recognised, and this could only 
 be committed by his own adherents. A modification of this 
 was introduced as early as the days of the golden bull, which 
 made this crime of treason possible in the case of any of the 
 electors as being constituent parts of the empire. 
 
 But we shall be all the less inclined to allow any system of 
 law to make such a demand,-'^ for the very reason that, so 
 
 as, for instance, was done in the case of the Prussian St. G. B., on the motion 
 of the committee of the Chambers. Of. Beseler, pp. 75-6. The crime of 
 forging or falsifying public records does not fall under this head ; in this 
 category there is no doubt that the main consideration is the offence done to 
 the honesty and good faith of public intercourse. (Of., too, Prussian St. G. 
 B. § 4 ; Oldenburg St. G. B. art. 3.) The Codes for Prussia (Anhalt, Bern- 
 burg, Waldeck), §§ 251-52, and Oldenburg, art. 234, § lb, put the forgery of 
 foreign and native public records on the same footing. Other Codes — e.g., 
 that of Thuringia, art. 252 — speak of public records without making this dis- 
 tinction ; cf., too, 0. G. B. of Hanover, art. 196. 
 
 1" Henke, i. § 90 ; Heffter, § 26, note 3 ; Zacharia, Archiv. d. C. E. 1852, 
 p. 48. 
 
 " L. 4, D. ad Leg. Jul. Maj. 48-4. 
 
 12 See the citations in Zacharia, p. 42, note 6. 
 
 13 This demand is made by Kostlin, p. 44. Witte, too (pp. 52-3), describes 
 it as primarily correct. The "motif" of the Crin)inal Code of Brunswick 
 speaks in the same terms (Breymann, pp. 241-42). The Criminal Code of 
 Wiirtemberg declares its provisions as to high treason applicable generally to 
 acts against foreign States,^of course under the conditions required in other 
 cases for giving competent jurisdiction to the criminal law and courts of 
 Wiirtemberg. One condition which is attached to this provision-!-viz., 
 
668 [§ 139. 
 
 various are the institutions of different countries, a direct 
 appKcation of tlie criminal law of one to acts directed against 
 the political institutions of another would in many cases 
 transgress the principles of equity. If we remember at the 
 same time that it will often be necessary incidentally to givib 
 a decision as to the legal validity of political institutiops 
 existing in another State in the course of the process that 
 such acts will origihate,!* we shall certainly say that the 
 proper course will be 'to put out of sight any direct applica- 
 tion of penal laws referring to crimes against the native State 
 to acts which are directed against a foreign State. On the 
 other hand, there can be ho question that a State is entitled 
 to threaten with punishment hostile acts against friendly 
 States, for the simple reason that they are calculated to dis- 
 turb the peaceful international relations of the native State. 
 
 Such rules correspond far more closely on the one side with 
 justice, since the view that subjects have the same duties to 
 foreign States as to their own is untenable, and on the other 
 side they are as a rule more easily put into practical opera- 
 tion, than the laws as to crimes against the native State could 
 be. While it is necessary for this latter course that a judg- 
 ment should be arrived at, pronouncing the foreign Govern- 
 ment which is threatened by the act to be in the right, aU 
 that is required for the punishment of an act of hostility 
 against a friendly Government is that the Government so 
 threatened should be recognised by us. We dismiss any such 
 dangerous inquiry, and the authorities of the one State may 
 refrain, in accordance with the principle of non-intervention, 
 from any judgment upon the political condition of the other. 
 Although, then, it is obvious that acts of hostility against a 
 friendly State must on the one hand be far more leniently 
 punished than acts of the same kind against the native State, 
 and, on the other hand, the circle of acts that may be visited 
 with punishment as being perilous to international peace, must 
 
 reciprocity, will go far to make it worthless. The Hessian St. G. B. art. 139, 
 confines equality of punishment to the case of crimes directed against other 
 German States. 
 
 " Cf. infra, § 150. The same reasons that make against the extradition 
 of political offenders, are all the more important here, where there is a ques- 
 tion of direct punishment, instead of a question of assisting foreign justice. 
 
§ 139.] 669 
 
 be far narrower ^^ than tlie circle of acts of offence against the 
 native State, whicli are directly liable to punishment, yet the 
 removal of such a doubtful inquiry will do more to preserve 
 the security and the peace of friendly States than could 
 possibly be achieved by means of the cosmopolitan theory.^® 
 
 At the same time, it must not be overlooked that special 
 statutory provisions may be made^'^ by virtue of which acts 
 against a foreign State may be treated in the same or a 
 closely similar fashion as regards punishment as that in 
 which attacks upon our own State are treated ; this seems 
 competent if the two States stand in a close and permanent 
 connection,^^ and if at the same time the political institu- 
 
 15 Most systems of law punish attempts upon friendly States merely as acts 
 dangerous to the State, but not as high treason, although there is frequently 
 insufficient attention paid to the reasons adduced in the text. 
 
 1^ If a State allows a foreign official to act within its territory, he represents 
 the native officials in exercising real powers of compulsion under that autho- 
 rity — e.g., in transporting or imprisoning criminals. A crime against such 
 an official is therefore in a legal sense a crime against the State where he is, 
 and must be punished just exactly as a crime against one of its own officials 
 would be punished. In this way we can dispose of the difficulties raised by 
 Arnold (Gerichtsaal, 1857, pp. 324-25) against our theory. The 0. G. B. of 
 Hanover contains, too, this provision : "Any injury to the reputation of aforeign 
 official who is in charge of some official duty in this country, with the know- 
 ledge and approval of this Government, will be tried and punished like a 
 slander against native officials, if the position of the foreigner was publicly 
 known, or was in the knowledge of the slanderer.'' 
 
 " Apart from special legislative provision it cannot be said that any attack 
 upon the constitution of one ' of several federated States implies an attack 
 upon the federation or the other members of it (cf. Zacharia). 
 
 18 Temporary alliances cannot be reckoned under this head. In my view 
 it is not fitting, from the point of view that in the criminal act there lies a 
 danger to the peace of nations, to limit the application of punishment to acts 
 against federated States (cf., e.g., C. G. C. of Hanover, art. 128, 4). The 
 Prussian Code, § 78, speaks of acts against one of the German States or its ruler, 
 but adds in the concluding sentence : " The same punishment is imposed if 
 the act is directed against another State, in which reciprocity is guaranteed 
 by published treaties or by statute." The Bavarian Code of 1861 only 
 sanctions the infliction of punishment upon the motion of the foreign govern- 
 ment concerned, for the perpetration, of an act against it or its sovereign by a 
 Bavarian, or by a foreigner residing in Bavaria or in the Bavarian service, 
 which if committed against the King of Bavaria or the State of Bavaria would 
 be hio-h treason, and if that Government does not belong to the German 
 Bund it only sanctions it under the further condition that the existence of 
 reqiprocity between the States is admitted by a declaration of the Bavarian 
 
670 [§139. 
 
 tions of both admit sucli a course — an exceptional case, of 
 wLicli use can only be made with the greatest caution, 
 looking to the reasons adduced above. ^^ 
 
 It needs no further exposition to show that by means of 
 the extension of the laws of the country of the domicile in 
 the way suggested, the sovereign rights of the foreign State 
 in whose territory the acts in question were committed can- 
 not in any way be injured : a conflict with the foreign 
 legislature will be entirely avoided.^" 
 
 Lewis,^^ lastly, advances against the competency of the 
 courts of the domicile to try acts committed in a foreign 
 country this consideration, that on the one side, as a matter 
 
 Government published in the form of a decree. But, on the other hand, it 
 must be recognised that the severe punishments of the German Codes are only 
 adopted for States that are really in one federation, and do not harmonise 
 with the principle adopted by the Brunswick Diet, which holds that under 
 the expression allied sovereigns and States, which their Code uses, we must 
 include not merely those with whom the duchy stands in a defensive and 
 offensive alliance, but all those foreign States and Governments with which 
 it has any diplomatic relations. (The Criminal Code of Saxony comprehends 
 under the expression so used in it, all that the code of Brunswick does. 
 Waohter, Criminal Law of Saxony, p. 153.) The proper course seems to be to 
 punish crimes against States which are truly and permanently in confedera- 
 tion or alliance more severely than crimes against States with which we are 
 merely friendly. The idea at the bottom of the Code of Brunswick is there- 
 fore too comprehensive. The moderate view perhaps is that indicated by 
 the Prussian Code, which requires an assurance of reciprocity. (Whether 
 a State belongs to the category of confederate or friendly States must ,be 
 decided independently by the judge, although he may inform himself as to the 
 actual relations by application to the ministry of foreign affairs. "Wachter, 
 p. 153, note 9.) [By the German Criminal Code of 1871, crimes against 
 any of the States composing the empire are put upon the same footing as 
 crimes against the State itself, and the empire will punish her own subjects 
 or foreigners within her bounds for crimes against foreign States, if these 
 foreign States will reciprocate these good offices.] 
 
 w If the crime has been committed by natives of this country abroad 
 awainst foreign ofBoials, it will be punished in precisely the same way 
 in this country as if it had been directed agfiinst native officials of the same 
 category (cf. a judgment of the Supreme Court at Berlin, 16th May, 1855). 
 But a judgment of the Court of Cassation at Darmstadt, of 25th July, 1849, 
 expresses an opposite view. 
 
 2° Cf. H^lie, p. 584. Of course, direct procedure against persons resident 
 in foreign territory is out of the question. We speak only of the punish- 
 ment of persons who have returned or have been given up under extradition. 
 
 21 Pp. 30 et. seq. 
 
§ 139.] 671 
 
 of fact, very little use will be made of this privilege, and on 
 the other that, if a frequent use is made of it, it may 
 frequently lead to the prosecution of innocent persons, since 
 as a rule evidence adequate to convict is only to be obtained 
 at the place where the act was committed ; and, therefore, 
 he says that the possible benefit is quite disproportionate to 
 the harm that may be expected. 
 
 As regards the first point, it may be conceded that there 
 will be fewer opportunities in England, by reason of its 
 geographical position, than in the States of the Continent for 
 punishing crimes committed by her subjects in a foreign 
 country. But in other countries — e.g., the States of the 
 German Bund— a very frequent use will be made of this com- 
 petency of the native courts, and French jurists have felt 
 most keenly the evils of the limitations imposed by their 
 legislature upon the right to punish crimes committed by 
 Frenchmen abroad. The fact that only a small number of 
 crimes committed abroad have come for judgment before the ' 
 courts of England, is at the same time entitled to all the less 
 weight, because England punishes only some kinds of crimes 
 when committed by British subjects abroad. 
 
 The second objection I am also disposed to pronounce 
 unfounded. No doubt it has been already urged by us that to 
 extend the jurisdiction of the courts of one country over all 
 crimes committed even by foreigners in a foreign country 
 would be apt to lead to the prosecution and punishment of 
 innocent persons. But in the case of the prosecution and 
 punishment of natives the case is otherwise. Although in 
 most cases the evidence is at the place where the act was 
 done, still there are very important matters of evidence — 
 such as previous character and history, and the personal 
 circumstances of the accused — which are specially at the 
 command of the court of the domicile. The accused from 
 his knowledge of the language, of the persons, and of the 
 legal procedure of his own country, will as a rule find his 
 defence the easier ; in the Middle Ages the right to appear and 
 answer in the court of the domicile was sought and main- 
 tained as a special privilege. To this we must add, that the 
 foreign State will have no reason in such a case, as it would 
 have in the case of the punishment of foreigners by us, to refuse 
 
672 [§ 139.: 
 
 its assistance in furnisliing evidence. If we had no right to 
 punish crimes committed by our subjects abroad, we should 
 have to choose between letting a guilty person go unpunished 
 and giving him up ; the latter course would simply serve to 
 oppress the accused. 
 
 Besides, to punish the criminal at his domicile presents 
 peculiar advantages which are not to be attained by means 
 of the principle of territoriality, or even by extradition. The 
 existence of the criminal is a fixed thing, but the place of 
 the act may not be so.^^ In this case the principle of terri- 
 toriality would let the accused go free. The risk of these 
 and similar uncertainties and doubts is removed by ^^ the 
 principle we have adopted. 
 
 The principles already laid down (§§ 30-1), determine 
 whether a person is to be held as a subject or adherent of a 
 State. This question, as these principles determine, in so far 
 as it has to do with establishing the jurisdiction of the 
 criminal courts of the domicUe, or the application of , the 
 criminal law of one country or another, belongs to the com- 
 petency of the courts ; which will, however, if the decision of 
 the competent administrative officials is given before the act 
 in question is committed, have to respect that decision as creat- 
 ing the law applicable to the case, if the person in question 
 has, before he did the act, expressed himself satisfied with 
 the decision of the administrative officials.^ 
 
 Lastly, we have to note, that according to the principles 
 already laid down for establishing the jurisdiction of the' 
 native criminal courts, the person must have been one of 
 their subjects before he did the criminal act, otherwise we 
 should have to ascribe a retro-active effect to the admission 
 iuto the citizenship of the State.^^' ^^ 
 
 22 E.g., a servant goes on stealing from his master during a journey: ' 
 
 25 In France, for instance, it is keenly disputed where the place of the 
 criminal act is if a man becomes bankrupt in France, but has committed 
 fraudulent acts against his creditors in another country, of. Villefort, p. 15. ' 
 
 2* Of. Wachter, Sachs. Strafr. p. 132, note 4. 
 
 25 Cf. Waohter, p. 137, note 15. 
 
 28 To require, as TOlie proposes (p. 622 ; see also Code d'Instr. art. 7, supra; 
 § 133, note 9), that the injured party should demand that the act committed 
 abroad be punished, cannot primarily be admitted to be just, since the punish- 
 
§ HO.] 673 
 
 What Criminal Law is to be Applied 1 
 § 140. 
 
 Since a subject is punished for crimes committed by him 
 in a foreign country, because lie has been guilty of a breach 
 of the law and order of his own country, the law of his own 
 country can alone determine the penalty to be imposed, and 
 regard can only be had to the law recognised at the place 
 where the act was done, for the purpose of showing from the 
 far more lenient rules of punishment there in use that the 
 law takes a different view of the matter, — a fact which may 
 serve to excuse our subject, who may have adopted that 
 view. 
 
 The application of our own law cannot result in any in- 
 justice, for our subjects are acquainted with the principles of 
 law which lie at the root of our legislation, and carry that 
 knowledge with them. 
 
 To punish in every case according to the law of the place 
 where the act was done, would imply an intolerable outrage upon 
 the legal conscience of the State inflicting the punishment,^ 
 in cases where these laws impose a more severe penalty than 
 the law of the criminal's own country ; in other cases, if his 
 native law did not recognise at all the kind of punishment 
 imposed by the laws of the other country, the matter could 
 not be worked out, and in every case would be attended with 
 the greatest difficulties.^ The view which at the present day 
 prevails completely accords, in so far as the punishment of 
 subjects is concerned, with that which we have submitted.^ 
 
 ment of these offences takes place in the public interest. At the same time, 
 there is much to be said for it in practice. This limitation is unknown to 
 the German Codes, at least in so far as the punishment of actual crimes is 
 concerned ; see, however, supra, § 139, note 18. 
 
 1 Cf. Kostlin, p. 29 ; A. M. Kliiber, § 63. 
 
 2 Cf. supra, § 132 ; and Berner, p. 162. 
 
 3 See Heffter, Strafr. § 150; Berner, pp. 162-63: Halschner, p. 64; 
 Schwarze, p. 195; H^lie, p. 592 ; Gross, im Archiv. d. C. E. 1853; Eryanzungs- 
 hefl pp. 73-5, Code d'Instr. arts. 5-7 ; Belijian Law of 30th December, 
 1836, art. i. (of. Foelix, ii. § 556) ; Sardinian G. B. arts. 5, 6 ; Hiinoverian 
 C. G. B. art. 2 ; Brunswick C. G. B. § 2 ; Prussian St. G. B. § 4 (cf. 
 Beseler Comm. p. 74) ; Royal Saxon St. G. B. arts. 2-3 (cf. Wachter, on Sachs. 
 Strafr pp 142-43) ; Hessian Law of 23rd February, 1849 ; Austrian St. G. B. 
 
 2 X 
 
674 [§ 140. 
 
 It may be said that, by deduction from the rule that an 
 act which is not criminal abroad must go unpunished by us 
 also, punishments should be in conformity with any more 
 lenient rule prevailing abroad ;* for a more lenient punish- 
 ment is simply partial immunity from punishment. But, if 
 the State is to punish at all, it can only impose what seems 
 to it a just punishment,' and if we are to go back upon con- 
 siderations of equity, it is to be noted, as was said during the 
 reyision of the Draft of the Prussian Code, that there is so 
 far a real distinction between the two cases, that a person 
 who does what is entirely beyond the reach of punishment at 
 the place where he does it, believes himself quite secure, but 
 a person who does what is in itself open to punishment, has 
 the consciousness of doing wrong ; but in law we can hardly 
 take into account the expectation of being punished severely 
 or leniently.® 
 
 Equity, however, irresistibly requires that regard should be 
 paid to a milder form of punishment recognised at the place 
 of the deed in cases where a foreigner is punished for crimes 
 committed in a foreign country •J' for he has no opportunity of 
 
 § 36 ; Thiiringian St. G. B. art 2 (of. "Wachter, pp. 147, 137) ; Bavarian 
 Penal Procedure Regulations, art. 30 ; Bavariau St. G. B. of 1861, arts. 10-12. 
 So, too, the practice in Hesse (Heuser, Decisions of the Criminal Senate of 
 the Supreme Court of Appeal at Cassel, i. p. 711). 
 
 * This is Kbstlin's view. Of., too, Piitter, § 24 ; Arnold, in the Gerichtsaal 
 of 1857, pp. 327-32, proposes to punish according to the laws of this country, 
 if the criuie was committed upon our subjects abroad ; but if it was committed 
 by our subjects abroad and upon foreigners, to apply the law recognised at 
 the place of the deed if that is the more lenient. Cf. Bauer, Strafr. § 40. 
 
 * Of., especially, Gross' remarks. 
 ^ Berner, p. 164. 
 
 ' This rule is recognised in many systems — e.g., in the C. G. B. of Han- 
 over, art. 3; the Austrian G. B. § 39 — with, regard to crimes committed 
 abroad upon private persons. According to the Code of Brunswick, art. 2, 
 and the new Bavarian St. G. B. arts. 10-12, none but their own laws are to 
 be applied. The reason given for that (cf. Breymann, p. 159), that the 
 foreigner cannot complain if the State which sets him before its courts treats 
 him as one of its own subjects, cannot be held to be appropriate, since the 
 foreigner was not in the same position as a subject at the time the deed was 
 done, and that is the only point at issue. The older view was rather that of 
 Kosdin. On the practice in Brunswick and Saxony before the publication 
 of the New Codes, see Breymann and Wachter. Sachs. Strafr. p. 142, note 3 ; 
 60, too, P. Voet, De statutis, xi. c. 1, note 5. 
 
§§ 140, 141.] 675 
 
 becoming acquainted witli our laws and our theories of right, 
 and frequently does not know to what State the person whom 
 he has injured belongs. The analogy of the generally admitted 
 principle that the foreigner, the moment he sets foot on our 
 soil, is subject to our penal laws, cannot be employed in this 
 case against us,* without taking into account whether he has 
 made himself acquainted with them; for between the two 
 cases there is this important difference, that one who enters 
 a foreign country cannot but know that he is subject to 
 another law, and, if he is uncertain whether a particular act 
 will be permitted, he has opportunity to inform himself 
 
 But, on the other side, again, it must be remembered what 
 a strong impression it must make if foreigners are to enjoy 
 the privilege of a more lenient punishment in questions with 
 natives. 
 
 In short, the difficulties and the considerations that have 
 emerged upon this point show that it is inconsistent with the 
 first principles of criminal law and of public law, to extend 
 the penal laws of one country so as to punish the acts of 
 foreigners in a foreign country, at least in so far as there is 
 no question of a crime against the State. 
 
 IV. Particular Problems — Punishment op Police Offences and 
 Minor Offences committed Abroad. 
 
 § 141. 
 
 It is laid down by most authorities that trifling contraven- 
 tions of the penal law can only be punished in the country 
 in which they were committed, and that therefore there can be 
 no punishment here of police offences committed by our sub- 
 jects in another country. The reason is that, on the one 
 hand, we have to deal with provisions which have a purely 
 local import ; ^ and, on the other, it is of no importance for 
 
 8 See, too, Ortolan, No. 903. 
 ' 1 Berner, pp. 126-27. The usury limitations of the place where the capital 
 is to be invested must rule (cf. supra, Law of Obligations, § Vl). This is ' 
 overlooked in the judgment given by Temme, Archiv. i. p. 32, of the Supreme 
 Court of Appeal at Oassel, 18th July, 1849, which condemned a Hessian sub- 
 ject because he had taken from a foreigner a commission for procuring him a 
 loan an act forbidden by the law of Hesse. If the court's view was sound, 
 
676 , [§ 141. 
 
 the maintenance of law and order in general that such 
 petty infringements of the law should be brought to justice, 
 while the expenditure of trouble and money necessary to 
 investigate and punish such crimes would be out of aU' pro- 
 portion to the advantages it could bring.^ 
 
 From these reasons, which are not, however, of an absolute 
 kind, it follows at the same time that, under certain circum- 
 stances — on account, for instance, of the special condition of 
 the frontiers of the States in question — exceptions may be 
 allowable or even necessary ;' that will be so whenever such 
 an extended influence must be given to the criminal law of 
 any country, in order to maintain the local police ordinances 
 and domestic order and law. 
 
 The Legislatures of Germany, moreover, punish both grave 
 and trifling criminal offences committed abroad,* those of France 
 the former only {Grimes). Almost all French jurists have 
 recognised that their limitation leaves far too large a number 
 of criminals free from punishment.^ We cannot but think, 
 however, that if the punishment of some act done in a 
 distant country is in question, the German Legislatures go 
 too far, and that a different rule, varying according to the 
 distance of the other country, is the proper rule to adopt 
 here. We should in that way prescribe the punishment of 
 simple police offences committed in the adjoining districts of 
 a State that is contiguous to our own, the punishment of 
 grave and trifling crimes in other countries, and in countries 
 at a great distance the punishment of the gravest crimes 
 only.® 
 
 all persons who receive from foreign securities a higher rate of interest than 
 their own law allows, must suffer as usurers. Cf., on the other hand, Wachter, 
 Sachs. Strafr. p. 161. 
 
 2 Mohl, p. 722. 
 
 3 This is specially applicable to the States of the German Bund. Cf. the 
 Police Code of Hanover of 1847, § 5. 
 
 * Cf. the Hanoverian C. G. B. arts. 2-3 ; Prussian St. G. B. § 4. 
 
 5 Cf. ViUefort, p. 26. 
 
 ^ See particularly Lewis, p. 32, on the consequences necessarily due to the 
 geographical position of different countries. In Germany, for instance, by 
 virtue of special agreements made between the different Governments, , in 
 many instances poaching committed on the frontier of the other, Statp. is 
 punished. The Police Code of Hanover, § 3, rule 1, provides : f Police 
 offeiices committed by our subjects abroad are to be punished, according to 
 
§§141, 142.] 677 
 
 In my view pumsliment is excluded'' if the act in ques- 
 tion is a mere police offence by the law of the place where 
 it was committed, while by our law it is a crime ; and that 
 on the same grounds on which it was maintained that im- 
 munity from punishment by the law of the place of the 
 deed must be respected. For a criminal prosecution it is 
 necessary that neither of the systems of law which are con- 
 cerned in the particular question shall confine the effect of 
 the act to the limits of its own country. 
 
 Place of the Act and Place op its Operation — ^Attempted 
 Crimes — Continuous Crimes — Art and Part. 
 
 §142. 
 
 From the facts that constitute any particular crime thdre 
 may be permanent external results, and it may be that these 
 results will take place in some territory other than that 
 in which the acts that gave rise to them happened. It was 
 a subject much debated among the older authorities on 
 criminal law, in which territory the crime was in such a case 
 committed. Most of them come to the conclusion that it 
 was committed in both, and should be punished in both.^ 
 It is, however, more correct to regard the place of the prin- 
 cipal act as the forum delicti commissi,^ as John Voet does.^ 
 
 this Code, if an appeal shall be made to it by the competent official of the 
 foreign country, or by the injured party.'' The Prussian Criminal Code, § 4, 
 runs thus : "Contraventions committed abroad shall not be punished in 
 Prussia, unless that is required by special laws or treaties." 
 
 ' The Supreme Court at Berlin, in a judgment of 14th Dec. 1864, has 
 pronounced for the opposite view. Temme, Archiv. iii. p. 2. But see, on 
 the other hand, Temme, note 1. 
 
 "^ Cf. Jul. Clarus, Sentent. v. S. fin. qu. 32, n. 9 ; Farinacius, L. 1, titul. 1, 
 qu. 7, § 44; P. Voet, xi. c. l,n. 8. Ortolan also takes this view, Nos. 951-52 ; 
 Piitter, § 98. 
 
 2 So, too, Witte, pp. 48-9. Cf., too, H^lie, p. 499 ; the judgment of the 
 Court of Cassation at Paris of 22nd Jan. 1826, reported there, p. 500, recog- 
 nises the jurisdiction of the French Courts to punish the publisher in France 
 of a public slander upon a foreign subject. So, too, the Supreme Court of 
 Appeal at Munich and the Supreme Court at Mannheim have laid down that 
 the forum delicti commissi is constituted at the place where a slanderous 
 letter is posted, and not at the place where it reaches the person to whom 
 it is addressed. (Cf. Temme, Archiv. ii. p. 239 ; iv. p. 332) [ef. p. 682]. 
 
 3 Comment, in Dig. xlviii. 19, n. 11. 
 
678 [§ U2. 
 
 For, on the one hand, penal laws are rules for the conduct of 
 mankind, and not means for preventing the occurrence of 
 any facts ; and, on the other hand, according to the oppo- 
 site view,* the criminality of the actor, and the competent 
 forum, would often be left to the pleasure of the injured 
 persbn. Punishment must, however, be excluded, if by the 
 law of the place where the consequences of the principal 
 act took place according to the intention of all parties, these 
 consequences were held lawful.^ 
 
 The opposite view would be justified upon the principle 
 that the criminal law rests upon the right of the State to 
 protect a particular person or thing. It would logically lead 
 to this, that the competent criminal authority of every State 
 would have to inquire in whose territory the act might have 
 wrought any mischief, an inquiry which, in many cases — e.g., 
 in cases of defamation — could not be answered. 
 
 Many acts are punishable only because the criminal, before 
 
 * This is the view taken in the judgments of the Supreme Court at Berlin, 
 deported by Temme (i. p. 325 ; v. p. 119), and is approved by Halschner, p. 73, 
 since it is not the act itself that contravenes the law and merits punishment, 
 but it is the cause of consequences which infringe the law. But the conse- 
 quences in themselves are never offences against the law ; they become so 
 through the guilt of the person who did the act. See, on the other hand, 
 Temme, Arch. i. p. 326, note, and the decision of the Supreme Court at 
 Zurich, reported by Temme, Arch. vi. p. 54, which, proceeding on our view, 
 found that the courts at Zurich were incompetent to try a foreigner criminally 
 for defamation contained in a letter to a person living there. 
 
 * To this effect judgments of the Supreme Court at Berlin, 25th April and 
 9th Oct. 1856 (Goltdammer, Archiv. fur Preussisches Strafr. iv. pp. 572, 835). 
 In both cases the court required proof that the act was punishable in the 
 foreign country where it was committed. On the other hand, another 
 judgment of the same court of 31st May, 1856, properly notes (Goltdammer, 
 iv. p. 831), with regard to a case in which the accused had fraudulently in- 
 sured the life of a third party with the agent of a London insurance company 
 resident in Berlin, and where the contract had been completed in London, by 
 the issue of the policy there : " In saying that the contract of insurance 
 effected by fraud was completed in London, it does not follow that the crime 
 laid to the charge of the prisoners is to be held as committed in a foreign 
 country, but rather, since all the acts that go to make up the crime were done 
 in this country, and, in particular, the payment of the premiums was made 
 here, and the final act by which the patrimonial wrong, constituting the 
 crime, was done in Prussia, it was the rule of our oriminAiMaw, which' imposes 
 penalties upon fraud to the prejudice of foreigners, that was transgressed." 
 
§ 142.] 679 
 
 committing them, entered upon some special legal relation 
 that set him under an obligation ; for instance, a marriage is 
 only bigamousj and so criminal, if the person contracting it 
 has already contracted another which is undissolved. The 
 first marriage, iu this case, supplies the actual conditions of 
 fact which make the crime possible ; the place iu which the 
 condition had its operation, cannot be regarded as the locus 
 delicti commissi.^ 
 
 The opposite theory could only punish embezzlement if 
 the articles misappropriated had been entrusted to the 
 crimhial within the territory of the State. 
 
 The jurisdiction competent for crimes is, moreover, estab- 
 lished in that country where the criminal act is attempted,^ 
 and the criminality thereof is aggravated by reference to the 
 act which sooner or later may be committed in another 
 territory in pursuit of this attempt ; for it is this which alone 
 can give us an actual factor for judging of the criminal 
 intent, which is one with the act. The judge of the State 
 in whose territory the attempt is made has, therefore, to 
 punish the completed crime, although the final act belonged 
 to another territory, ia so far as the two acts stand in a con- 
 
 ® Cf. the judicial determination given in Villefort, p. 22, and Bohmer, 
 §24. 
 
 ' Cf. Hessian Code, art. 3: "Criminal acts begun beyond the territory of 
 Hesse, but finished there, or begun here and finished abroad, must be 
 regarded as if they had been both begun and finished here." The Codes of 
 Nassau, art. 3 ; Anhalt-Dessau and Kdthen, art. 2 ad fin y and Breidenbach, 
 pp. 225-26, remark: "The crime will, as a rule, only be competent in a 
 foreign country if the criminal withdraws himself by flight from the jurisdic- 
 tion of the courts of his own country. If we proposed to adopt the principle 
 of extradition, the question would be, what should be the result if the 
 foreigner began in this country and completed in his own an act which his 
 law pronounced innocent, but our law criminal?" (In my opinion, in pur- 
 suance of what was said in note 4, we should certainly be obliged to 
 pronounce that the act was innocent in our country also, if it was the fuU 
 intention of the person who did the act, at the moment when he began it, that it 
 should be completed abroad). For it would be a satire on justice to punish 
 merely for an attempt when the crime had been completed. If the act was 
 threatened with punishment by our law, our judge would be just as little 
 entitled to punish the attempt, and then give up the criminal ; for that 
 would mean that a murderer, for instance, would have to undergo imprisqji- 
 ment in this country, in order that he might afterwards be executed ,in 
 his own. 
 
680 [§142. 
 
 nected relation to each other ; the attempt and the accom- 
 plishment are steps of the same crime.* 
 
 In the case of continuous crimes, the whole of the series 
 of acts taken together will be treated as a continuous infrac- 
 tion of the law, and as the actual factors for determining the 
 punishment of that act of the series by which the provisions 
 of the criminal law were first transgressed. The judge, 
 therefore, in whose territory it may be that only one of the 
 several acts that constitute the continuous crime was com- 
 mitted, must judge of the whole series. 
 
 The opposite view would,' as will be shown to result from 
 the principles of recognising punishment inflicted abroad, be 
 at variance with the theory by which the various acts are all 
 adjudicated upon at once as a single act, according to the con- 
 ception of the crime as continuous — a theory which has "for its 
 object the more lenient treatment of the offender, who has, 
 strictly speaking, earned the full penalty for every single 
 act.!"' '" 
 
 ^ See, too, Farinacius, 1. c. § 44. The opinion of Carpzovius (Prset. ill. 
 qu. 110, n. 23), that where one crime has been carried' on continuously in 
 different territories, each judge can only take notice of so much of it as has 
 taken place in his own country, is quite in error. If the one crime were so 
 broken up, the criminal would often be too severely punished, and, likewise, 
 ■would often escape punishment, — if, for instance, the crime were only made 
 up by putting the different acts together. 
 
 ^ This view is adopted by Halschner, p. 76. Of. too, Piitter, p. 203. 
 
 i» Of. Leonhardt, Comm. i. p. 459. 
 
 11 On the other hand, it is of no consequence that the act committed in one 
 territory is in point of time near the other. We cannot therefore commend 
 the view expressed by Merlin (Rdp. Vo. Contrebande, u. iv ; cf. Cosmann, pp. 
 67-8), that the thief who has stolen some article in country A, and, when pur- 
 sued by the owner, kills him in country B, can be punished for both offences 
 in country A as being the fonim delicti commissi. If we give up the proposi- 
 tion that the dolus of the criminal is all that can unite the different acts into 
 one whole, it follows that we may treat the whole course of a man's existence 
 as a consequence of some previous act, and submit it to the local law to which 
 that act was subject. The decision of the Court of Cassation at Paris given 
 by Ousmann (pp. 55-6), by whiuh the murder of a French custom-house officer 
 beyond the French frontier was tried in a French court and by French i law, 
 becau.-'e the act of murder was in connection with the smuggling on French 
 soil could, as I think, ouly be justified on the hypothesis that there was suffi- 
 dierit evidence to show that 'the intention to murder had been declared on 
 French territory. ' 
 
§ 142, iFo<e PF.] 681 
 
 The actual completion of a crime seems in relation to the 
 act of any accomplice to be a result brought about in whole 
 or ia part by the act of that accomplice or instigator. He is 
 therefore not subject to the criminal law of the country in 
 which the principal act took place, but to that of the country 
 where his own act was committed. But, if the principal act 
 is not criminal by the law of the country where it actually 
 took place, as a consequence the acts of aU participators in it 
 are beyond the criminal law also, unless their acts can be 
 punished under some distinct category.^^ 
 
 It must also seem very hazardous to hold the place of the 
 principal act to be the seat of the accessory act also if we 
 refuse to give up our own subjects by extradition, and adhere 
 closely to the principle of territoriality. Eesetters of theft, 
 for instance, who get possession of articles stolen beyond the 
 frontier would drive their trade unpunished. 
 
 Note FF, OTO § 142. 
 
 [It has always been a difficult question to decide where the 
 jurisdiction lies in the case of a continuous crime, committed 
 in more than one territory, or in the case where an act, — such 
 as the despatch of a threatening letter, or of a packet of 
 poison, or the firing of a gun, — takes place in one territory, 
 
 12 Cf. the decision of the Supreme Court at Berlin, 9th Oct. 1856, given by 
 Temme, Arch. iv. p. 162. All that can be got from the principle is that the 
 act of the accomplice constitutes an accessorium of the principal act of the 
 person who actually carries out the crime : it does not justify the view main- 
 tained by Hffie, p. 636, adopted so long ago as by Julius Clarus (Sent. v. S. 
 fin. qu. 38, n. 6), that the place of the actual deed will rule. The English law 
 lays down, in so far as regards the competency of trying crimes within the 
 kingdom, that where the principal act takes place in one country and the act 
 of the accomplice in another, the latter may be brought to justice in either 
 country (7 Geo. IV. c. 64, c. 9, 10 ; cf. Stephen Maury, pp. 427-28) ; Parinacius, 
 L. 1, tit. 1, qu. 7, note 44, is of opinion that the forum delicti commissi holds 
 against thfe accomplice in both territories. The Criminal Senate of the Supreme 
 Court of Appeal at Celle recognised in a judgment of 1st Nov. 1859 that one 
 in Hanover who had aided and abetted in a perjury sworn in Prussia was 
 subject to the criminal law of Hanover, and to the jurisdiction of the courts 
 of Hanover (New Magazine for Hanover, R. 1860, p. 128). The same view is 
 at the bottom of the judgment of the Supreme Court at Berlin of 5th Feb. 
 1858, given by Temme, Archiv. vi. p. 9. , , ■; 
 
682 [Mte FF. 
 
 while the result is produced in another territory. The view 
 of the author is borne out by decisions of the Appeal Court 
 at Berlin, 18th April, 1873, and 14th Nov. 1873, and at 
 Munich, 18th Feb. 1873, pronounced since the promulgation 
 of the German Criminal Code : these judgments hold that the 
 crime is truly committed where the person sets himself in 
 motion to commit it. In France (Foelix, ii. § 551) it is the 
 law that any crime committed by a Frenchman or a foreigner 
 on foreign soil may be punished in France if the means of the 
 crime have been prepared in France, or if the crime had its 
 operation there, always providing that its quality is such as 
 the French law holds to be criminal. But, again, the Appeal 
 Court at Berlin has held, 24th Jan. 1872, and 1st July, 1875, 
 that the last set of a series — e.g., the actual dehvery of a 
 threatening letter written abroad— will determine the locus 
 of the crime. The Court at Florence held on 26th March, 
 1879, in the case of an Austrian subject writing a threatening 
 letter from Yerona, in Italy, to Trient in Austria, that the 
 crime was not committed till the letter was deUvered, and 
 that therefore the criminal must be tried in Austria. 
 
 The law of Scotland undoubtedly gives jurisdiction to the 
 courts of the country where the crime was completed by 
 taking effect, where, as it is said, the engine exploded. 
 " If one compose and print a libel in England, and circulate 
 it here, or if one forge a deed abroad and utter it here, 
 certainly the proper courts for the trial of such a case are 
 those of this country, since it is here that the main act is 
 done which completes the crime. . . . Nay, more, it may be 
 plausibly argued that he shall be subjected to the same course 
 of trial who shall write an incendiary letter in England, and 
 put it into a course of conveyance thence, by means of which 
 it is received in Scotland" (Baron Hume on Crimes, i. 173). 
 This principle has been applied in the leading cases of Brad- 
 bury, 25th July, 1872, 2 Couper, 311 ; Witherington, I7th 
 June, 1881, 8 Rettie, p. 43. The decisions in these cases 
 are all the more forcible, as the crime charged was in both 
 cases the obtaining of goods under false pretences, the species 
 facti alleged constituting no criminal offence in England, by 
 the law of which country the prisoners in both cases claimed 
 that they should be tried. 
 
Note FF, § 143.] 683 
 
 Where the crime is one recognised in all countries, there is 
 probably, as is suggested by Lord Neaves in Bradbury's case, 
 a concurrent jurisdiction in the two countries : the difficulties 
 of adopting the law of the place where the result is produced as 
 determining the quality of the offence are forcibly stated by 
 Lord Young in the case of Hall tried at Perth, 25 th March, 
 1881, 8 R 28. 
 
 The criminal law of Switzerland provides that where a 
 crime has been committed in several cantons, that in which 
 the principal act was committed may require the surrender of 
 all accomplices. It was so decided by the Federal Court, 1 2th 
 Oct. 1877, in a case where the canton in which a theft had 
 been committed required the surrender of resetters from 
 various other cantons. 
 
 In England it is determined by the cases of the Queen v. 
 Keyn (1876, L. R. 2 Ex. D. 63) and re Smith (1876, L. R 
 1 R D. 300), that in the case of offences or torts, committed 
 by means of the colhsion of one ship with another, it is not 
 sufficient to give the English court jurisdiction that the ship 
 suffering damage, or on board of which the offence — in Keyn's 
 case manslaughter — take place, is an English ship. The 
 point for consideration is not in what place the act was com- 
 pleted, but in what place the actor was.] 
 
 Reasons for Excluding Criminal Jurisdiction — Punishment 
 SuFi*ERED — Pardon — Prescription — Acquittal — Eesumption 
 OF THE Inquiries — Punishment Imperfectly Suffered. 
 
 §143. 
 
 Criminal jurisdiction in respect of a crime may be excluded 
 directly by punishment having been suffered, by a pardon, 
 and .by prescription, and this may also indirectly result from 
 a final acquittal of the criminal, further prosecution after the 
 verdict of acquittal has been pronounced being inadmissible. 
 The effect that is to be given to such an exclusion of the 
 criminal law, created by the statutes or the practice of one 
 oountry, in another, if both of these countries lay claim to a 
 concurrent jurisdiction in the particular case, has been made 
 matter of dispute. ; ; ■" 
 
684 [§143. 
 
 Let us first consider a case where the punishment has been 
 fully suffered. According to our view both States have a 
 criminal jurisdiction, and each must recognise the rights of 
 the other. It follows, therefore, that the satisfaction which 
 disarms the criminal law of the one State in time to come, — 
 that is, the complete expiation of the guilt of the convict 
 according to the laws of that State, — must have the like effect 
 in the other State also, precisely as in civil law the satisfaction 
 of one of two joint creditors does away with the claim of the 
 other upon the debtor. 
 
 Pardon is a declaration by the sovereign that the claim 
 which the State is entitled to make for punishment is to be 
 dismissed. The effect of this, if the State was really in the 
 position to put its claims into execution, is not merely that 
 its own criminal jurisdiction is renounced, but at the same 
 time the concurrent criminal jurisdiction of any other States 
 is likewise extinguished.^ 
 
 The case is otherwise in a question of prescription. The 
 rule of law which declares that a crime is prescribed, is 
 nothing but a declaration on the part of the legislature that 
 that crime shall not be prosecuted by the officials of the 
 State, or that the recognised punishment shall not be 
 exacted,^ because within the specified time no use has been 
 made of one or the other law. Prescription, therefore, rests 
 upon the consideration that the State was not in a position 
 to make use of its criminal law, and it follows directly from 
 this, that just as the prescription of an action by one joint 
 creditor in civil law would not stop an action by another 
 
 1 Since there Ls no precedence among the courts of different countries, the 
 criminal must actually have been in the power of the State which issues the 
 pardon (Farinacins, 1. c. n. 58 ; Mevius, Decisiones, p. iv. decis. 277 ; Feuer- 
 bach, § 516 ; and judgment of the Supreme Court of Appeal at Oassel of 19th 
 Aug. 1844, reported by Heuser ; remarkable decisions of the Court at Cassel, 
 i. pp. 686-87). But it is not necessary, as Breidenbach, p. 269, lays down, that 
 an inquiry should have been instituted in the foreign State at the time of the 
 pardon. A general amnesty therefore will, under the conditions required in 
 the text, have the same effect. It is certainly impossible to see why a pardon, 
 which blots out what remains of a sentence incompletely carried out, is not 
 to be determined by the same principles as any other exercise of the privilege 
 of mercy (Breidenbach, as cited). 
 
 » Cf., e.g., Code Penal, arts. 635-36. 
 
§143] 685 
 
 joint creditor of another country, in so far as the State does 
 not claim a right that is merely subsidiary/ the prescription 
 •which has taken effect in one of the two States which has 
 jurisdiction, shall not be regarded in the other. [But in a 
 case where extradition of a criminal is demanded, and the 
 crime has by the law of the country where the criminal is at 
 the time, undergone prescription, the demand should not be 
 complied with. So held in Switzerland, Federal Court, 
 25th July, 1877, in the case of Mattiotti.] 
 
 A judgment of acquittal is a declaration of the Court 
 which administers the criminal authority of the State to this 
 effect, that no sentence against the accused can be justified, 
 either because his guilt was not proved, or because the act in 
 question could not be punished. The lex specialis implied 
 in a judgment of this kind must have the same, but no 
 greater effect upon the criminal jurisdiction of the other 
 country than a lex generalis to the same effect.* In so far, 
 then, as a deliverance by the law of the place where the 
 deed was done excludes punishment in the domicile of the 
 accused, it will be excluded by such a judgment ; whereas a 
 judgment of this kind pronounced at the domicile of the 
 accused does not by any means exclude a prosecution by the 
 State in whose territory the deed was done. 
 
 As regards, however, judgments to the effect that the guilt 
 of a prisoner has not been proved, the application of the 
 axiom, so widely recognised, " ne bis in idem," is excluded on 
 this account — viz., that although it may be laid (Jown that 
 the application of the criminal law to the factum is a matter 
 soJely for the court to determine, and that all charges 
 depending in any possible way upon the same factwm should 
 be brought to a head in one action,^ this is only appUcable 
 
 3 Of., e.g., the Austrian Penal Code, §§ 39-40. 
 
 * Of. Breidenbach, p. 261. 
 
 * It is otherwise in the Eoman law. If the same factum implies a trespass 
 upon several criminal statutes, the trial may first take place as against the 
 one, and then against the other. (Cf. L. 9, de accus., and especially Geib. 
 Geschichte des Eomischen Criminalprocesses, p. 655. See Savigny, System, 
 V. p. 251, as to L. 14 D. de accus., which seems to be contradictory.) But 
 the criminal laws of different States must be held to be different leges, (Of., 
 too, Leonhardt, Justizgebung fiir das Konigreich Hannoyer, 3rd ed. vol. iii. 
 p. 50, note 5.) '■, 
 
686 [§ 143,' 
 
 to the case where the judge is in the position to apply all 
 the rules of criminal law that can possibly have reference to 
 the case in hand ; and the application of foreign criminal law, 
 to the effect of imposing punishment, and not of pronounc- 
 ing that the act is non-criminal or should be leniently 
 punished, is out of the question. The result of the rule 
 " ne bis in idem," is not this, that the concurrent criminal 
 jurisdiction of the other State is only excluded by a punish- 
 ment completely expiated or remitted from merciful con- 
 siderations, but rather that the foreign judgment per se, or, 
 indeed, strictly speaking, the institution of an inquiry in a 
 foreign country, will have this effect — a doctrine which will 
 scarcely be admitted. 
 
 Although, then, it can be just as little maintained * that, 
 like a sentence of condemnation that has been carried out, a 
 judgment of acquittal by a foreign court must be recognised, 
 since the rule " ne bis in idem" is a pure rule of process, 
 and it will be admitted, that under certain circumstances, a 
 criminal prosecution may be resumed even within the same 
 country after a judgment of acquittal, while the rule that no 
 one can be twice punished for the same crime rests upon 
 considerations of material justice ; "^ there is an equitable 
 foundation for giving to a judgment of acquittal upon the 
 facts, if it has been pronounced in a foreign State, the same 
 effect as if it had been pronounced by a native court, so far 
 at least as confidence can be reposed in the justice and equity 
 of the sentence pronounced in a foreign country ;^ there 
 must be great doubt as to the guilt of a person who has been 
 acquitted by a regular court of some State upon the same 
 grade of civilisation and morality as ourselves, even although 
 a court of this country might happen at a subsequent period 
 to arrive at a condemnatory judgment, and we must consider 
 what a bad impression contradictory judgments as to the 
 game facts in two neighbouring States must have upon the 
 general respect for the administration of justice. 
 
 ' Maintained by Leonhardt, in the Magazine for Hanoverian Law, 1859, p. 
 409. 
 ' Otherwise the criminal would be punished twice — i.e., illegally. 
 8 Cf. Breidenbach, p. 261. 
 
g U3.] 687 
 
 This fact, and the fact that the criminal lawyers of the 
 later Middle Ages always adhered to the conception of one 
 common criminal law for all Christian peoples, and that this 
 theory has all along exercised a great influence upon the later 
 doctrine, explains how the prevailing opinion has always been 
 in favour of a recognition of a judgment of acquittal in a 
 foreign country ; so that, unless there are special statutory 
 regulations to a contrary effect, I should certainly hold that 
 foreign judgments of acquittal ought to be tacitly admitted 
 to rank on an equality with those of this country, always 
 under the limitation stated in the case of judgments to the 
 effect that the act is not criminal. 
 
 A resumption of any inquiry is, however, as follows from 
 the equality of foreign and native judgments, only permissible 
 in so far as the laws of this country permit or require such a 
 course in the face of a judgment pronounced here ; for the 
 ground for excluding further criminal procedure lies not in 
 the formal legal authority of the foreign judgment, which 
 must be settled by foreign law, but in equity, and depends on 
 a consideration of the benefits which will generally result from 
 placing a foreign judgment of acquittal on a level with a 
 native judgment. (On similar grounds the resumption of the 
 inquiry in the face of a foreign judgment of condemnation, 
 which has been carried into execution, is to be determined 
 according to the law of this country.)' 
 
 A sentence imperfectly expiated — it must be remitted 
 partly by the prerogative of mercy, in which case the rules 
 laid down with reference to pardons will apply — cannot be 
 looked upon as a satisfaction which will take away the 
 criminal jurisdiction of the other State, since it by no means 
 bears this signification even to the State which itself imposed 
 the punishment. 
 
 The criminal jurisdiction of the other State which was 
 originally competent, continues, therefore, to subsist. But in 
 such a case, if it is possible to give up the criminal by extra- 
 
 8 A judgment of a foreign court which holds the instance to be bad, has 
 no more effect in stopping an inquiry before our courts, than a judgment of a 
 court to whom an accusation is referred (Anklagesenat) that the offence should 
 not be prosecuted. Cf. Breidenbach, pp. 261-62. But in most cases, as a 
 matter of fact, such a decision would be respected. 
 
688 [§ U3. 
 
 dition, this will be done ; or, in the opposite case, the pun- 
 ishment which has been endured in the foreign country must 
 be reckoned in upon all principles of equity, since in any 
 other case it is plain that the accused would suffer too severe 
 a penalty.^** 
 
 Where, however, the State assumes a duty in virtue of its 
 own laws — ^not even to be derogated from by the law of the 
 place where the act was committed — as in the case of crimes 
 against the State itself, it cannot recognise the acts of the 
 foreign State, even although it has proceeded in conformity 
 with its own laws. Even although a punishment, which is 
 almost equivalent to that which would be pronounced here, 
 has been fully worked out, that cannot, ipso jure, exclude a 
 second prosecution in our country, but can only give some 
 ground for counting in the punishment which has been im- 
 posed and suffered abroad. If we were to give such a punish- 
 ment the effect of excluding all further prosecution, we should 
 not be able to punish a person guilty of high treason who 
 had been visited with a trifling punishment abroad on account 
 of hostile acts against our State, and we should perhaps be 
 forced to leave him in the enjoyment of all his political 
 privileges. -^^ 
 
 1" It seems most correct to impose by the sentence the full punishment 
 awarded by the law of this country, and to deduct expressly that which has 
 been suffered in the foreign country. The punishment already suffered can 
 have no effect in mitigating the statutory results of the crime imposed upon 
 it by the law of this country ; for, if it were so, in cases where the position 
 of the convict as a citizen is affected by his sentence, there might easily be an 
 inequitable advantage given to a person who had suffered his punishment in 
 another country. Cf. the "motif" of the 13th Art. of the new Bavarian St. 
 G. B. Special provisions must be made in all codes for the case where a 
 sentence of death is imposed by the law of the criminal's domicile. Cf. infra, 
 note 25. 
 
 [It was decided in France (C. de Douai), in the case of a Belgian woman 
 who had been condemned in absence to a period of two years' imprisonment, 
 and who had, in respect of this sentence, which had been intimated to the 
 Belgian authorities, — to whose territory she had made her way, — been sub- 
 jected to a fine of 50 francs, that upon her return to France there was no bar 
 to the execution of the sentence of the French court, but that it was in the 
 discretion of that court to estimate the proportional value of the Belgian 
 penalty and deduct it. Wattier, 31st March, 1879.] 
 
 " See the arguments urged by Leonhardt (Magazine for Hanoverian Law, 
 1859, p. 409), against the general language of the provision incorporated with 
 
§ 143.] 689 
 
 The views of most authors, and the enactments of the 
 most modern codes, coincide with the results at which we 
 have arrived, with some isolated exceptions. As a rule, the 
 only question thoroughly discussed is, whether a sentence 
 carried into effect in a foreign country, and a judgment of 
 acquittal, exclude all further prosecution.^^ Many proceed 
 upon this point from the rule " ne bis in idemP The mis- 
 taken application of this rule does not, however, square at once 
 with the doctrine which attributes that effect solely to a judg- 
 ment that has been carried out," and with that which refuses 
 
 the revised Hanoverian Criminal Ordinance on the suggestion of the Cham- 
 bers. " A plea of nullity may be taken, . . . (12.) If two sentences art 
 pronounced against the same person for the same act, and the latter is liable 
 to be set aside by such a plea. If the first deliverance is pronounced by a 
 foreign court, this plea of nullity may be advanced, provided that — 
 
 " The State whose courts have pronounced it was entitled, by virtue of 
 openly advertised State treaties, to require the extradition of the accused 
 person for trial and sentence ; or that — 
 
 " The extradition of the accused, — or, it may be, the execution of the punish- 
 ment, — was required or conceded in consequence of a special agreement; or 
 that — 
 
 " The punishment imposed by the foreign courts has been completely 
 worked out." 
 
 " The Code for Anhalt-Dessau (art. 3), provides that punishment fur 
 crimes committed abroad shall not be imposed, if they have already been 
 investigated, and a judgment of acquittal or a sentence pronounced upon 
 them abroad. The Code for Hesse and Nassau, arts. 4, 2, and 4, and art. 5 
 ad fin., excludes punishment in the case of natives for any crime committed 
 there or in another country (if in Hesse or Nassau, only if, further, the 
 crime was directed against a foreign State, its officials or adherents), if the 
 accused has been already punished or acquitted in a foreign country, and 
 excludes all punishment in the case of foreigners who have committed any 
 crime in these countries against a foreign State or its officials, and have been 
 already punished or acquitted in such foreign State. The Codes of Prussia, 
 Bemburg, Waldeck, § 34 (Oldenburg, art. 3), agree with this. 
 
 13 Cf. Arnold, in Gerichtsaal, 1857, p. 343 ; Witte, p. 63. See, on the 
 jother hand, specially Wachter, Sachs. Strafr. p. 164, note 2. 
 
 1* Arnold, 0. S. 351. H61ie (p. 621) draws, on the other hand, this very 
 important inference, of which Wheaton, § 121, p. 166, seems to approve. In 
 the Code d'lnstruction it is substantially adopted, except in the case of crimes 
 against the State. The recognition, however, of the sentence of a foreign 
 judge, which has been carried into execution, upon the ground of the rule that 
 no one shall be twice punished for one and the same crime (cf. e.g. the Code 
 of Hanover, art. 86), can only be admitted if, in laying down that rule, 
 the legislator had truly in contemplation all international aspects of the 
 
 2 T 
 
690 [§ 143. 
 
 to carry out a sentence pronounced in a foreign court, and 
 lays down that it is the law of the criminal's own country that 
 
 case. (That is, for instance, undoubtedly the case with the Code of Bruns- 
 wick, as is illustrated by proceedings taken upon § 69). The practice of different 
 countries has certainly been to make use of some such rule in order to 
 exclude a repetition of a sentence, after punishment has already been fully or 
 partially carried out in another country. See the practice in Saxony before 
 the publication of the Code of 1855 (cf. Wachter, Sachs. Strafr. p. 165), and 
 a judgment of the Supreme Covirt of Appeal at Celle — the latter, indeed, 
 merely in a case where the punishment had not been fully worked out 
 (Magazine for Hanoverian Law, 1855, p. 336). See, on the other hand, 
 Leonhardt, Justizgesetzgebung des Konigreichs Hannover, 3rd ed. vol. iii. p. 
 50, note 5. This judgment of the court of Celle was the occasion of the 
 adoption of the rule stated in the previous note in the revised Criminal 
 Ordinance, a provision, however, which, as Leonhardt points out, opens the 
 door to the greatest dangers. The earlier rules (Ordinance of 26th February, 
 1822, and Declaration of 18th February, 1823), give the following results 
 according to Leonhardt's view, which I regard as correct : 1st, The power of the 
 State of Hanover to punish crimes committed against the State of Hanover, its 
 sovereign, or Government in any foreign country, either by foreigners or by 
 natives, is not limited by a judgment of a foreign court either of acquittal or 
 of condemnation ; 2nd, On the other hand, the criminal jurisdiction of the 
 State of Hanover disappears, if there be a judgment of a foreign court in con- 
 demnation and also a sentence fully carried into effect, or a judgment of 
 acquittal on account of a crime committed abroad either by Hanoverians or 
 foreigners npon a subject of Hanover, or by Hanoverians upon a foreigner. 
 The Criminal Code of 1840 contains, in art. 3, the following regulation in 
 reference to foreigners : — " The Criminal Code is to be used against all 
 foreigners on account of any crime committed by them in this country, and 
 on account of crimes committed by them abroad against the State of Hanover. 
 It will also regulate their punishment for offences committed upon Hano- 
 verian subjects abroad, so far as tbey have neither been acquitted nor 
 punished for such offences according to the law and the sentence of any court 
 of a foreign State, or in so far as there may be reason for resuming the 
 inquiry even after a judgment of acquittal in the foreign State ; '' whereas there 
 are no rules at all laid down for the satisfaction of the criminal jurisdiction 
 over crimes committed by Hanoverians abroad. It was very doubtful, even 
 before the publication of the Revised Ordinance upon Criminal Jurisdiction, in 
 how far the older rules of the Ordinance of 1822 could still be applied (cf. V. 
 Klenoke in the Magazine for Hanoverian Law of 1857, p. 112, and Leonhardt, 
 p. 399). In most of the modern codes the exclusion of a criminal prosecution 
 is expressly limited to the case of a judgment of condemnation fully carried out. 
 So in the Code of Wiirtemburg (cf. Hufnagel, Comm. i. p. 6 ; Berner, p. 114)'; 
 ill that of Baden, § 8 ; Prussia, § 4, 3 ; Sardinia, § art. 10 (cf. Foelix ii. § 
 558) ; in the Criminal Ordinance of the Netherlands of 1838, art. 10 (Foelix 
 ii. § 459). The like may be stated upon a sound reading of the Saxon 
 Code (cf. Wachter, p. 168). 
 
§ U3.] 691 
 
 must determine the competency of resuming the prosecution." 
 
 The distinction -which has already been made between the 
 
 different kinds of acquittals has, however, been as yet but 
 
 little regarded.^® Some authors" lay down that, on strict 
 
 principles, no recognition of any condemnation in a foreign 
 
 country, or even of the complete expiation of the sentence, 
 
 can be justified ; it is only upon equitable grounds that they 
 
 recommend the abandonment of further prosecution. Several 
 
 judgments of German courts, in countries where there are no 
 
 special enactments upon the point, have followed this theory, 
 I 
 
 ^^ The competency of resHiuing the procedure must be determined by the 
 law of the criminal's own country, unless the legal sentiment of the State is 
 to be oflFended, as would be the case where a native of this country was sen- 
 tenced abroad, and afterwards proof of matters in defence was discovered, 
 which would be a good ground for resuming the inquiry according to our 
 law, but not according to foreign law (cf. Gross, im Archiv. d. C. R. 1853 ; 
 Erganzungsheft. p. 56; Wachter, Sachs. Strafr. p. 173; and Schwaize, 
 Gerichtsaal, 1860, pp. 177-208). If the formal legal authority of the foreign 
 judgment were recognised, it would be necessary that the matter should be 
 determined by foreign law, and in many cases that determination could only 
 be given by a foreign court. The Code of Baden expressly provides, § 8 : — 
 "When any person has been acquitted or condemned for some criminal 
 offence before a foreign court according to forms of law, a new prosecution 
 or verdict for that offence can only take place under the same conditions as 
 are required for the resumption of an inquiry into a criminal offence, which 
 has already been concluded by a valid verdict in this country, as, for instance, 
 if the criminal has by flight escaped from the execution of the sentence pro- 
 nounced upon him abroad." 
 
 18 Cf., however, Breidenbach, p. 261. The necessity of such a distinction 
 appears very plainly from the following illustration. According to the theory 
 we have adopted, and which most legislatures have at least tacitly taken up 
 in questions of prescription, it is only the law of this country that can be 
 applieJ, unless the State is exercising a merely subsidiary right. If, however, 
 the court of a foreign country acquits the accused, because the prescriptive 
 period has run, then, according to the theory that the judgment of a foreign 
 court must be held to be res judicata, all prosecution in any other State is barred 
 (to that effect, Berner, p. 163). It is not easy to see, however, how a judicial 
 decision which merely expounds the law should have greater force than a 
 general statute promulgated by the sovereign. 
 
 17 Heffter, Strafr. § 27, § 3, 181, § 2 ; Volkerr. § 36. See, on the other 
 hand Kostlin, p. 37. Tittmann (p. 33) proposes that a punishment carried 
 out in a foreign country should be recognised, except in the case of crimes' 
 by which the State where he is subsequently apprehended or its subjects 
 are damaced. This view is a deduction from the theory of prevention already 
 used in Tittmann's earlier work. 
 
692 [§ 143. 
 
 and, in particular, where there are questions as to the 
 punishment of their own subjects for offences committed 
 abroad, have simply taken into account the amount of punish- 
 ment suffered abroad.^^ As Schwarze remarks,^® this is cer- 
 tainly correct, if we assume that the binding force of the law 
 of this country continues exclusively to affect our subjects 
 while abroad. It is, however, irreconcilable with the recog- 
 nition of a concurrent criminal jurisdiction in the foreign 
 State of equal force, and leads in many cases, since contra- 
 dictory judgments may so easily be pronounced in the different 
 States, to disadvantages which are out of all proportion to 
 the very questionable advantages ^^ to be got from it. 
 
 Pardons and amnesties are treated by many authors ^^ on 
 the same footing as punishment suffered, or judgments of 
 acquittal. Arnold and Schwarze regard them to a certaia 
 extent as verdicts of acquittal pronounced according to the 
 unfettered discretion of a higher tribunal, whose privilege it is 
 to put in force the highest equitable considerations, which can- 
 not be expressed in special criminal statutes. But it is per- 
 missible, and as a matter of fact it often happens that pardon 
 is given for other reasons than those of the highest equity — 
 e.g., for the good of the State.^^ Many authors, therefore, still 
 
 1' Cf. the judgments of the Supreme Court of Appeal at Cassel and at 
 Munich, in Temme, i. pp. 39-40, iv. p. 2 ; Dollmann Bayer. Strafprocessg. 
 p. 186. The Austrian Code, as regards Austrian subjects, prescribes specially 
 in § 36, div. 2 : " If an Austrian subject has already been punished abroad 
 for any act, the amount of that punishment is to be imputed to any sentence 
 competent under this code." The judgment of the Court of Cassation at 
 Vienna given in Temme, i. p. 44, applies this rule to the case of a crime com- 
 mitted by a foreigner in Austria and already punished abroad. 
 
 19 P. 192. 
 
 2" E.g., highly expensive prosecutions would have to be undertaken to add 
 some trifling period to the punishment. 
 
 21 Berner, p. 137 ; Arnold, Gerichtsaal, p. 352 ; Schwarze, Gerichtsaal, 
 1860, p. 39 ; Gross, Arch. d. C. R. 1853 ; Erganzungsheft. p. 59 ; Cf., too, 
 Welcker, in Eotteok's and Welcker's Staatslex. i. App. ii. p. 270; and 
 Klencke, in the Magazin fiir Hannov. Eecht. 1851, p. 86. 
 
 22 Martens, § 105 ; Kliiber, § 64 ; Leonhardt, Coram, i. p. 57 ; Breiden- 
 baoh, p. 269 ; Wachter, Sachs. Strafr. pp. 173-74, who calls special attention 
 to the fact that pardon may be a matter of favour, because it is not restrained 
 by any hard and fast limits, but he argues correctly that where one State 
 prosecutes a criminal only as the representative of another State, the pardon 
 
§ 143.] 693 
 
 cling to the older view, which does not allow a pardon any 
 effect in a foreign country, and commit the question of the re- 
 cognition of one pronounced abroad to the discretion of the 
 department which has the prerogative of pardon in their own 
 country. In my view, as I have just endeavoured to show, 
 there is no need of any such enquiry as to the foundation on 
 which the theory of pardons rests ; to this I may add that a 
 second enquiry into the same matter must always seem 
 highly dangerous, and that the recognition of a pardon 
 pronounced abroad is founded upon considerations of the 
 general security of intercourse f^ and, finally, that scarcely 
 any substantial interest in punishing a criminal pardoned 
 abroad can be figured, if we except the case of crimes against 
 the State. 
 
 Most authors share our view ^* as to the incomplete term 
 of punishment, and it is either expressly or tacitly approved 
 in most codes. ^^ 
 
 ■which the latter has given must be respected. If, for instance, an English- 
 man committed a crime in England against an Englishman or a Frenchman, 
 and was pardoned for it in England, could he be again tried and punished if 
 he came to Saxony ? In several criminal codes, a pardon given in a foreign 
 country is expressly recogni>ied as a ground for cancelling punishment. It is 
 so in the Codes of Wiirtemberg, arts. 3-4, of Hesse 1, and of Nassau, art. 4 
 (in this case only to a limited extent in conformity with the rule " Volenti 
 nonfit injuria"), but quite generally in the Codes of Prussia, Anhalt-Bern- 
 bui-g, and Waldeck, § 4, with the exception of crimes against the State— an 
 exception sanctioned in the text. Most codes are silent as to the effect of a 
 pardon in a foreign country. 
 
 23 In the opposite view, a man who had been pardoned in one State could 
 not cross its frontiers without exposing himself to the hazard of a new trial 
 and punishment. Could we suhject a convict, part of whose term of punish- 
 ment in a foreign country had been remitted on account of good behaviour, 
 to a new trial 1 
 
 2* Kostlin, pp. 37-8, note 1. The Code d'Instr. and Ortolan (No. 908) are 
 to the opposite effect, the latter because the criminal law must be clear and 
 simple. 
 
 25 Cf., e.g., Bavarian Code of 1861, art. 13. It also specially enacts : " If 
 in one of these exceptional cases, in which a new trial and sentence can take 
 place after one judgment has been given abroad, a verdict of guilty shall be 
 given by a competent court in Bavaria, regaid may be had to the punishment 
 which the guilty party has already suffered for the same Act in another 
 country to this effect, that the punibhment due by the laws of Bavaria shall 
 be imposed, but thereafter declared to be remitted in whole or in part 
 
694 [§ 143. 
 
 Prescription, according to Berncr^® and Wacliter,^^ must 
 be determined by the same law as that from which the jtidge 
 must derive the punishment he is to impose, that is to say- 
 as a rule by the law of the judge who is charged with the 
 whole prosecution, as we have laid down.^ In most statute 
 books no special mention is made of prescription ; it seems 
 therefore that every judge, unless he is merely exercising a 
 subsidiary jurisdiction, must regard his own law alone. 
 This is expressly provided in the Code of Wiirtemberg.^* 
 Kostlin ^^ proposes that all grounds for the cancellation of 
 punishment should be treated alike. But, as will be seen 
 from what we have already said, the entirely distinct 
 character of these different reasons militates against this.^^ 
 
 Lastly, the exception that crimes committed against the 
 State ^^ cannot be withdrawn from the criminal jurisdiction 
 of that State by any ground of cancellation which may be 
 found in the laws of a foreign country is expressly recognised 
 in several Codes ;^^ it rests however, except in so far as it is 
 defended on a purely practical ground, — i.e., on the ground 
 that such acts are not sufficiently punished in a foreign 
 
 according to circumstances. If the question is as to a crime punishable by 
 death according to Bavarian law, and if the accused has already undergone 
 a punishment of two years or more confinement in a foreign country, he 
 shall be sentenced to imprisonment for life." 
 
 2!! P. 164. 
 
 ^ Sachs. Strafr. p. 164, note 5. So, too, DoUmann Bayer. Strafprooessges. 
 i. 184. 
 
 ^■' A foreign judgment, which is swept away on the plea of prescription 
 founded on foreign law, is no reason for excluding the jurisdiction of the 
 courts of this country, cf. Breidenbach, pp. 267-68, and note 12 to this 
 paragraph. 
 
 ^' Cf. Hufnagel, Comm. i. p. 17. Foelix proposes to apply that law which 
 is more merciful (ii. § 602). 
 
 2° P. 37. Kostlin, who holds the principle that every State punishes 
 crimes as the delegate of that State in whose territory they were committed, 
 is of opinion that in such a condition of aifairs any grounds for cancellation 
 which arise in the one State must at once be recognised in the other. In 
 consequence, our State, if it has sentenced a criminal and has him in gaol, 
 must recognise a pardon pronounced by a foreign sovereign whose courts did 
 not pronounce the sentence, if the act was committed in his territory. 
 
 ^' See, on the other hand, Wachter, Sachs. Strafr. 
 
 32 Of. supra, § 139. 
 
 33 Prussian Code, §§ 3, 4 ; Bavarian Code of 1861, art. 13. 
 
§ 143.] 695 
 
 country, — on the theory that a subject, whether permanent 
 or temporary, by committing a crime against the State, 
 commits a special breach of duty of which the laws and the 
 courts of any foreign country can have no cognisance.^* 
 
 In the foregoing discussion we have throughout proceeded 
 on the assumption that the ground for cancellation or 
 mitigation of punishment has occurred in some country 
 which is competent to inflict punishment. According to the 
 theory already given, no State, with one exception, is com- 
 petent unless it be the State of the criminal's domicile, or 
 the State in whose territory the act was done. However, 
 looking to the great variety of legislation, and the great 
 difference of opinion which still prevails as to the competency 
 of this or that State in criminal matters^® (by which, however, 
 the criminal must not suffer), every act of a foreign court 
 or a foreign sovereign must be treated as if the State in 
 whose name it was done was truly competent to it. By 
 foreign courts we mean courts established by a foreign 
 sovereign ; on the other hand, the jurisdiction of foreign 
 consuls exercised by them in exceptional cases in foreign 
 countries in the name of our State, is not to be held to be a 
 foreign jurisdiction. 
 
 ^* So the Prussian Code, § 4, in reference to the acts of foreigners described 
 as treasonable or as of the nature of coining offences, and in reference to 
 similar acts by a Prussian ; so, too, similarly Code d'Instr., the Sardinian 
 Code (Foelix, ii. No. 558). The Code of Saxony, 1855, contains this exception, 
 in art. 9 : " If a person has already been criminally punished by a foreign 
 court, he can only be punished for the same crime a second time in the courts 
 of this country, if the act, by reason of some special obligations incumbent 
 upon him towards this country, its sovereign or its subjects, has a more 
 serious character which the foreign sentence could not take into account ; 
 but even in such a case the punishment already suffered elsewhere for the 
 same act must be deducted. This is also done if the punishment has been 
 carried out by an incompetent court abroad." The theory of the Prussian 
 Code is, in my view, preferable. The addition in the Saxon Code of duties 
 towards private persons confuses the case. On the other hand, the provisions 
 of the Saxon Code as to the imputation of the punishment suffered abroad 
 are in accordance with justice. Cf. however, Arnold, p. 353 ; Schwarze, 
 pp. 196-200. 
 
 35 Cf. Wachter, Sachs. Strafr. p. 167, note 15. The Prussian Code speaks 
 generally of foreign tribunals without mentioning the necessity of their 
 competency. 
 
696 [§ 144. 
 
 Previous Convictions. 
 § 144. 
 
 In criminal law a relapse into crime constitutes as a rule a 
 special aggravation — i.e., when a criminal has already been 
 convicted of the same or of a similar crime, and has suffered 
 punishment according to the provisions of any particular law. 
 
 The question as to whether foreign convictions can be con- 
 sidered in such circumstances is variously answered in different 
 codes. ^ 
 
 In my view it should be settled in this way. Eelapses 
 into crime are more severely punished, because they are held 
 to imply that the criminal purpose is of greater intensity and 
 more obstinate than in other cases. It is assumed that as a 
 rule the punishment which is imposed is sufficient to break 
 this criminal purpose, for the very object of all punishment is 
 to reconcile and to remove this criminal character. It must 
 therefore be held to be indifferent whether this punishment ^ 
 proceeded upon a sentence of this country, or of any other, 
 if it really was imposed on account of the crime in question, 
 because in both cases the obstinacy of the criminal purpose 
 is proved in the same fashion by the repetition of the crime. 
 But, since we cannot attribute any effect that can be recog- 
 
 1 The Codes of Hanover (art. 112), Nassau (art. 91), and Hesse Carts. 96, 
 100-01) — the latter with important exceptions ■which lead to remarkable 
 results, — Baden (art. 188), answer it expressly in the affirmative. (In Bruns- 
 wick we get the same result from the report of the Commission, § 58 ; see 
 Breymann, p. 119), while the Prussian Code, art. 58, adopts the opposite 
 view in every case, and tliat of Wiirtemberg (art. 124) as a general rule, from 
 which exception is made only in the case of foreign vagabonds who have been 
 guilty of robbery, theft, or swindling in trade. The older Italian writers dis- 
 cuss the question whether, in countries where a third conviction of theft 
 infers hanging, the two convictions obtained abroad are to be counted in the case 
 of a foreign subject. Clarus (Sentent. L. V. Furtum, n. 10) makes this dis- 
 tinction : " Aut statutum. respicit poenam, puta pro tribus furtis f-ur mm-iatur 
 et tunc non gravant. Aut statutum respicit factum, puta qui tria furta fecerit 
 moriatur, et tunc secundum delictum gravatur a primo." Angelus Aret. de 
 Maleficiis. Ruhr. Etiam Vestem, note 14, decides in both cases for the more 
 severe punishment. 
 
 2 It is always a condition, however, that our law recognises the punishment 
 as one that will have a deterrent effect upon the criminal punished. 
 
§§ lU, 145.] 697 
 
 nised in this country to a foreign sentence, in so far as it has 
 not been carried out, it follows that although our law will find 
 even in a sentence that has been pronounced in this country, 
 but not carried out, material to justify the treatment of a 
 second offence as a relapse,^ the same course cannot be taken 
 with foreign sentences, and even where the punishment 
 imposed by a foreign sentence has been fully carried out, an 
 inquiry into the justice of the conviction by the foreign court 
 cannot be avoided.* 
 
 The difficulties by which such an inquiry is attended, — 
 especially if the criminal procedure rests in both States upon 
 oral testimony, — account for the divergence of the law of 
 Prussia and Wiirtemberg from the theory which is recognised 
 as correct, and by which punishment expiated abroad is treated 
 as an aggravation of a second offence.^ 
 
 V. Appendix. — Eights of Extea-Teeeitoeialitt — Ceimes 
 ON Shipboaed — Oeimes of Soldiees in Foeeign 
 Teeeitoet — PiEACY — Slave-Teade. 
 
 § 145. 
 
 There is some dispute as to whether ambassadors are 
 subject to the criminal law of the country to which they are 
 
 •■ So, for instance, the Prussian Code. There they proceed upon the theory 
 that the condemnation in itself is a sufficient warning to justify a sharper 
 punishment if the offence is repeated. Cf. Beseler, Conim. pp. 213-14. 
 
 * Such an inquiry, according to the Code of Baden, § 186, takes place even 
 when the first judgment is pronounced by a court in Baden. Cf. Brauer, im 
 Gericlitsaal, 1859, p. 381. 
 
 5 Cf Beseler, Comm. p. 214 ; Hufnagel, p. 267-68 ; and in defence of our 
 theory, Abegg, im Archiv. d. C. E. 1834, p. 422 ; Mittermaier, in his notes to 
 Feuerbach's Lehrbuch, § 332, note 2. Ortolan (No. 1200 ; cf. Piitter, p. 194 ; 
 Cosmann, p. 59) decides the question in the opposite way, upon the ground 
 that on the one side foreign judgments have no binding effect upon the courts 
 of this country, and upon the other that it has not yet been shown in the case 
 supposed that the law of this country has no effect upon the criminal. But 
 the first of these reasons merely calls for a new inquiry into the procedure 
 that has taken place, and the sentence that has been pronounced abi'oad, and 
 the second proves too much. From it we should have to infer that, if the 
 criminal code of any country was changed, all sentences pronounced by the 
 courts of that country under the rule of the old system would have to be 
 thrown out of account as previous convictions. 
 
698 [§ 145. 
 
 accredited, and in whose territory they reside, and if so, to 
 what extent. 
 
 By one theory the question is answered absolutely in the 
 negative, and fuU exemption is thus guaranteed to the 
 ambassadors.-' 
 
 A second theory starts with the proposition that an 
 ambassador who is guilty of serious crime, — e.g., incites the 
 subjects of another country to revolt, — deprives himself even 
 of the protection afforded by public international law, and is 
 therefore liable to be punished.^ 
 
 A third theory — which has, however, found but few 
 adherents — proposes that ambassadors should enjoy no 
 exemption from the laws of the land, but should suffer no 
 prejudice thereby.^ The necessity of maintaining public 
 order is by this theory used to meet the argument on which 
 the first theory rests — viz., the necessity of giving an 
 ambassador an independent position. 
 
 If we keep in view, first, that the ambassador represents a 
 foreign sovereign, and that one sovereign cannot be subject 
 to the other,* and, second, that the independence of the 
 ambassador is as much imperilled by charges of a serious 
 nature as by lighter accusations, we are forced to pronounce 
 in favour of the first theory, which is, besides, generally re- 
 cognised at the present day, especially as the injured State 
 has in the last resort the right of defending itself by banish- 
 ing the person.^ 
 
 It follows necessarily that all persons truly belonging to an 
 embassy enjoy this exemption from the penal law of the coun- 
 try, and in the interest of the independence of ambassadors 
 this privilege is also by international usage extended to the 
 family of the ambassador living in his house. 
 
 1 Grotius, ii. c. 18 ; Vattel, iv. chap. 7 ; Bynkershoeck de foro compptente 
 legatorum, c. 8, § 2. The ambassador continues subject to the law of his own 
 country, Earner, p. 208. 
 
 2 Thomasius, Jurisprud. div. iii. c. 9, § 86 ; Barbeyrac, Notes sur Bynker- 
 shoeck, c. 24, § 12 ; H^lie, p. 142. Some limit the criminal law to the case 
 of a serious crime against the State itself. 
 
 ^ Coocejus, Jus ControT. L. 40, tit. 7, de legation, qu. 3. 
 * Berner, p. 208. 
 
 ^ Cf. Hefifter, §§ 42, 214 ; Wheaton, § 225, p. 285 ; FceHx, § 566 ; Oppen- 
 heim, p. 197 ; Ortolan, No. 515. 
 
§ 145.] 699 
 
 It is questioned whether servants, on the other hand, and 
 in particular servants belonging to the country in which the 
 embassy is stationed, can make the same claim.^ The inde- 
 pendence and immunity of the ambassador are completely 
 protected if previous notice is given of the apprehension of 
 any of his servants, or of a search of their premises, or any 
 other diligence, whereas it would be quite intolerable that a 
 criminal belonging to the suite of an ambassador should have 
 to be conveyed to the country in whose service his master 
 is.^ This question is therefore properly answered in the 
 negative. 
 
 It needs no discussion to show that foreign sovereigns are 
 not subject to the criminal law of the country in which they 
 may be temporarily resident. On the other hand, other 
 members of a royal family will only be allowed the privi- 
 leges of extra-territoriality if they are immediately in attend- 
 ance upon the sovereign.^ 
 
 Ships of war represent directly the majesty of the State ; 
 they are, therefore, as they are physically distinct from the 
 territory of the State in whose ports they may be, held dis- 
 tinct in law from it, and are viewed as parts of their own 
 
 * See on the various views, Heffter, § 221 ; Berner, p. 212 ; Merlin, Eep. 
 Vo. Ministre Public, p. 6, n. 5, 6 ; H^lie, ii. p. 554. 
 
 ^ Ambassadors, except the representatives of European powers in the East, 
 are no longer allowed a criminal jurisdiction of their own. Cf. Heffter, 
 §§ 246-47. In any case the exemption of the servants, as it exists merely in 
 the interest of the ambassador himself, can only avail to suspend, and not 
 absolutely to exclude, the criminal law of the State, so that when the service 
 terminates the servant may be called upon to answer for acts done by him 
 during that period. This is the consideration on which the judgment of the 
 Supreme Court at Berne, reported by Temme, Arch. i. p. 24, proceeds : by this 
 an arrestment in security of judgment which should be called for when the 
 service terminated was sanctioned while the service still subsisted, the charge 
 being one of smuggling wine which had been found in the house of an inhab- 
 itant of Berne. [The fact that the crime with which the prisoner isi charged 
 was committed in the hotel of the ambassador of a foreign power, will not 
 exempt the prisoner from the jurisdiction of the courts of the country, if he 
 Ls not a member of the ambassador's suite, Eeichsgericht at Berlin, 26th Nov. 
 1880.] 
 
 * Heffter, § 55; Berner, p. 214. Some propose that the heir-apparent 
 should always have it. The international rights of a sovereign, as well as 
 merely the courtesies of the position, are accorded to one who is really con- 
 joined in the government or who administers a foreign State. 
 
700 [§ 145. 
 
 country, and moveable forts belonging to it.® Troops in an 
 enemy's country are in like manner subject only to the 
 criminal law of tbeir own country.^" On the other hand, 
 there seems to be some doubt as to the position of troops in 
 a neutral or in a friendly State. Although the army as a 
 whole represents the State in its military aspect,^' there is 
 not in this case any physical separation, and it is impossible 
 to invest each individual soldier with that representative 
 character. The following solution of the question seems most 
 correct ^^ : — Crimes and offences against comrades and officers, 
 or against discipline, or against the State to which the army 
 belongs, are principally matters affecting the order of the 
 army itself ; and as a foreign army, which has been suffered 
 to enter the country, must be allowed to maintain its disci- 
 pline and order, are subject to the law and to the courts of 
 the country to which the troops belong. On the other hand, 
 it cannot well be held that the criminal authority of the 
 State in whose territory the troops happen to be is ipso jwre 
 excluded in the case of crimes which imperil other persons 
 not connected with the foreign army, or endanger the public 
 peace. [A judgment of the Court of Rheims, 10th June, 
 1877, affirmed by the Court of Paris, 14th July, 1877, held 
 that French courts had jurisdiction to try for theft a person 
 attached to the German army, but not actually a soldier.] 
 
 But although our army in an enemy's country remains 
 subject to our penal law, the delicts committed there by 
 other persons are by no means made subject to it. The 
 invasion only excludes the application of the law of the 
 invaded country to the invader, but does not otherwise dis- 
 turb any of the legal relations of that country." 
 
 ' Ortolan, No. 935. In France it is even held that French courts are 
 incompetent to deal with crimes committed on board a foreign merchant ship 
 among its crew within a French port, unless the peace of the port is broken, 
 or the ship is intended for an attack upon the French Government or its 
 citizens. Ortolan, Nos. 936-37. 
 
 '" This follows from the right of possession, Ortolan, No. 942. 
 
 ^' On this ground, Berner unconditionally adopts the principle of extra-ter- 
 ritoriality, pp. 215-16. 
 
 '2 So Ortolan, No. 939. 
 
 12 Of. Ortolan, No. 942, and the judgment of the Court of Cassation at 
 Paris of 1818, there cited. 
 
§ 145.] 701 
 
 Ships of war on the high seas are also held to be part of 
 the territory to which they belong, and, by public law, the 
 sea within cannon-shot of the shore belongs to the jurisdic- 
 tion of the country which it bounds.^* 
 
 Piracy — i.e., the forcible seizure of ships and property on 
 shipboard without commission from any responsible Govern- 
 ment — is held to be an offence against the common legal 
 order of all nations. Any State that seizes a pirate may 
 punish him.-^^ 
 
 Slave-trading, on the other hand, does not fall under the 
 category of an offence against the common legal order of all 
 nations. It is only the subjects of those States which for- 
 bid the trade that can be made answerable for this, and that 
 only in the courts of their own country, unless there are 
 provisions to a different effect in some special treaty ;^^ but 
 they may be guilty of the offence on board foreign ships.^'^ 
 
 " Of. Heffter, § 73 adflnj Ortolan, No. 928. [Of. pp. 486, 661]. 
 
 1* Vattel, i. § 232 ; Heffter, § 104 ; Foelix, ii. § 545 ; Lewis, pp. 12, 13. 
 
 16 Heffter ; Lewis, pp. 11, 12. 
 
 " As to the case of different criminal laws in the provinces of the same 
 State, see supra, § 28 ad fin, and the decision of the Supreme Court of 
 Appeal at Munich, cited by Temme, Arch. ii. p. 161, along with Temme's 
 note in harmony with our theory, p. 188, note 1. 
 
StXtfj ^KXt 
 
 CRIMINAL PROCEDURE. 
 
 General — ^Leading Evidence Abroad — Citation — Effect 
 OP Foreign Sentences as Regards Infamy — Confiscations. 
 
 § 146. 
 
 It follows, from what has already been said as to the law of 
 civil procedure, that all application of the rules of foreign 
 criminal procedure must be excluded. But, further, the 
 exceptions which were recognised in the case of civil pro- 
 cedure^ cannot be recognised here, since the nature of criminal 
 law prevents any agreement of parties as to the competency, 
 the force and the effect of rules of criminal procedure ; while, 
 although it is conceivable that some material provision of 
 penal law may take the shape of a rule of procedure, that 
 would be of the most subordinate importance, because there 
 is very little opportunity for foreign penal law to take any 
 effect in the judgments of our courts. 
 
 But, since the force of official documents as evidence is 
 not confined to the domain of civil law, and depends, as far 
 as form goes, upon the law of the place where they were 
 drawn up, an " act of instruction," drawn up by the com- 
 petent officer in a foreign country, must possess the same 
 value in evidence as one drawn up by an official of this 
 country, in so far as the requirements of the law of the 
 
 » Cf. supra, § 116. 
 
§ 146.] 703 
 
 place of execution for tlie validity of tlie document are 
 observed.'^ 
 
 On the other hand, the question as to 'whether the con- 
 duct of the inquiry has been fairly carried out — e.g., whether 
 the witnesses have been sufficiently interrogated as to their 
 personal circumstances, or whether the judge should have 
 used personal inspection or taken the assistance of experts, 
 can only be solved by the law of the court before which the 
 case depends : here we have to deal with the means of per- 
 suading the judge, and that must be effected in accordance 
 with his own law.^ If the formal conditions of the validity 
 of documents could only be determined by the law of the 
 country where the prosecution takes place, it would often be 
 impossible to continue ran investigation where the preliminary 
 "act of instruction" had to be conducted in a foreign country. 
 
 It is not easy to refuse to conduct an inquiry with a view 
 to the preparation of an " act of instruction," when this is 
 asked by a competent official of another country. The object 
 is to ascertain truth, and the State is not, thereby, likely to 
 be prejudiced. Where, however, a Government holds any 
 inquiry to be prejudicial, it may, since the State which makes 
 the demand has no absolute right to be assisted in its prose- 
 cutions apart from special treaty obligations, decline to con- 
 duct it, or forbid its courts to do so ; and they must carry 
 out any such instructions, since Government has control over 
 aU our relations with other countries. 
 
 The duty of giving evidence depends upon the law of the 
 place where the witness resides.* The special question, as to 
 
 2 We suppose, of course, that the foreign State is one whose officials can 
 be fully credited. Cf., too, the judgment of the Supreme Court at Berlin of 
 11th May, 1854, reported by Temme, Archiv. 3, p. 463, which ascribes the 
 same force to the oath of a witness taken in a foreign country according to 
 tlie forms there recognised, as to an oath administered according to our own 
 forms. 
 
 3 Cf. Heffter ; Volkerr, § 36 ad fin. 
 
 * A witness cannot be compelled to leave his own country to give evidence 
 unless the court is situated quite close to the frontier. There are various 
 provisions upon this point in treaties. Cf , e.g., treaty between Hanover and 
 Belgium of 20th October, 1845, art. 11 ; between Hanover and Oldenburg, 
 13th June, 1815, No. 9 ; Hanover and Bremen, art. 9 ; and Krug, p. 60. Cf. 
 supra, § 124. 
 
704 [g U6. 
 
 wlietlier evidence may be refused, if the act which is the 
 subject of the inquiry is plainly no criminal act by the law of 
 the State on which the demand is made, must be answered 
 in the affirmative, unless some other answer is supplied by 
 the special stipulations of each particular country : for the 
 assistance which foreign States give, and the consequent 
 obligation upon their subjects to co-operate in the support of 
 law and order in a foreign country, does not extend to the 
 prosecution of charges which depend on some particular 
 statute.^ An exception, and the only exception, is made in 
 the case of witnesses for the defence, since the right of the 
 accused, which is here in question, may well rank with the 
 rights of a private person at issue in a civil action, and in a 
 civil action the courts of all countries will aid in collecting 
 evidence. 
 
 The citation of the accused, unless it is accompanied with a 
 threat of compulsion or diligence, may be viewed as an 
 opportunity given to the person so cited of defending him- 
 self ; and, therefore, there is no danger in allowing the cita- 
 tion to be served, even although the crime charged is not 
 liable to punishment by the law of the State where the 
 accused is.® To refuse to allow it could only serve to pre- 
 judice the accused, because the foreign Government could 
 easily substitute a public or edictal citation for personal service. 
 It seems, however, to be proper, in order to avoid exposiug 
 the accused to a double punishment for the same offence, to 
 take objection to the service of the citation provisionally, if 
 the State where it is to be served has itself a claim to 
 criminal jurisdiction other than a merely subsidiary claim, 
 and not to execute it unless the foreign officials in spite of 
 this common interest persevere in their contention. 
 
 It is matter of universal admission that a foreign judgment 
 of condemnation can neither be recognised as having any 
 legal force in another country, nor be carried into execution "^ 
 
 ^ Q(. supra, § 141, and infra, § 150. 
 
 » Gf. e.g., the agreement between Prussia and Saxe-Weimar ; cf. 23-29, 
 March, 1852, art. 36. (Gesetzsamml. fiir die Eonigliche Preuss. Staaten. 
 1852, p. 135.) 
 
 ' Martens, § 104; Kliiber, § 64; Schme'zing, Burop.Volkerr. § 164; Wheaton, 
 § 121, p. 166 ; FcBlix, ii. § 604 ; Story, §§ 621-28 ; Heffter, § 36 ; Berner, p. 
 
§ 146.] 705 
 
 — a principle only abandoned in isolated treaties with refer- 
 ence to unimportant offences, and between neighbouring 
 States, where the criminal laws are closely alike, and each 
 State can rely upon the matter being determined in a manner 
 consistent with its own legal principles.^ The reason of this 
 is, that, according to the principle of an absolute material 
 justice which governs all criminal law, every State must be 
 convinced before it inflicts punishment that the act is liable 
 to punishment upon the principles which it takes for its 
 guide, and this cannot be effected except through the 
 sentence of its own courts, unless in the case of some special 
 statutory enactment to a different effect. To carry the 
 sentence of a foreign court into execution, would imply that 
 it could only have been pronounced by the law of that court, 
 even although it is to be carried out in our territory, or else 
 that it was competent for the criminal to subject himself 
 voluntarily to that jurisdiction.* But both solutions are 
 excluded in questions of criminal law. 
 
 But if the criminal judge pronounces upon some civil 
 claim, he takes the place of the ordinary civil judge, and his 
 determination is to be respected just in the same way as a 
 
 168 ; Piitter, § 102. See, too, Austr. St. G. B., § 36 ad fin. " In no case 
 shall the sentences of foreign officials be carried out in this country," Breiden- 
 bach, pp. 265-66. No exception is to be made even when the only punish- 
 ment authorised is a fine. 
 
 ' Cf. e.g., § 6 of the agreement between Hanover and Brunswick of 19th 
 September, 1828 (Gesetzsamml. fiir das Konigreich, Hannover, 1818, p. 99) 
 to ensure detection of thefts of wood, or iish, or poaching on the frontiers. 
 Any German university carries out a sentence pronounced by another 
 university upon students as to matters of discipline. Most of the conven- 
 tions cited by Krug (p. 52) contain the provision that if a subject of one of 
 the contracting States shall commit a crime or offence in the territory of 
 another, and be apprehended there and sentenced (some say put upon his 
 trial), this foreign sentence shall, if required, be carried out by the other 
 State, not only upon the person, but upon the goods of the criminal. The 
 limitations attached to this confine, as a rule, the execution upon his person to 
 cases of serious crimes. Besides, in many of these conventions there is ex- 
 pressly reserved to the State on which the demand is made, the right; of re- 
 mitting the punishment or pardoning the offence. It is also presupposed 
 that the act for which the punishment has been awarded is liable to punish- 
 ment according to the law of the State upon which the demand is made. 
 ' Cf. what has already been said as to the execution of civil judgments. 
 
 2Z 
 
70'6 [§146. 
 
 judgment of the civil court, provided always tliat upon the 
 sound principles of international law the courts of that State 
 are competent to determine the civil claim. 
 
 It often happens that a sentence expresses or implies some 
 infamy or loss of legal capacity. Most modem authors ^^ 
 refuse to give any such effect to a foreign sentence ; or, at the 
 most, allow that it produces a certain infamia facti, but not 
 an infamia juris. Older jurists lay down that a person who 
 has been condemned in a way which infers infamy by the jus 
 commune, must be held to be infam,is all the world over." 
 
 It is plain that a sentence following upon an act which the 
 law of our State does not hold to infer infamy, cannot affect 
 the good fame and capacity of the convict in this country, in 
 spite of a foreign judgment to that effect.-'^ In the same 
 way, no formal legal force in this country can be given to a 
 foreign sentence ; but at anyrate the foreign inquiries may 
 be used to prove that the convict has been guilty of a crime 
 which by our law infers infamy.'^* 
 
 The Codes of Baden (§ 9), Prussia, Bernburg, Waldeck 
 (§ 24), and Oldenburg (Art. 20) allow a new criminal inquiry 
 at home, with a view of obtaining a judgment from their 
 own courts upon the point of infamy, when one of their sub- 
 jects has been tried and sentenced for some crime abroad.^* 
 There is, however, no necessity for this special procedure, the 
 only object of which is to determine the question of infamy 
 in every case, and the only object of these rules is, at least in 
 so far as the discussions upon the Prussian Statute Book go, 
 to give an opportunity of preventing persons who have been 
 convicted of dishonourable crimes abroad, from exercising all 
 the rights of honest people in their own country.^^ [The New 
 Criminal Code of 18 71 for the German Empire, by § 37 pro- 
 
 1" Martens, § 104 ; Kliiber, §65; Wheaton,§ 121,p.l66; Fcelix,ii.p. 316; 
 Story, § 92, 623-24 ; Schmelzing, Burop. Volkerr. § 164 ; Giinther, p. 731. 
 
 " Paul de Castr. Cons. L. V. cons. 320, n. 4. Bald. Ubald. in L. 1, C. de 
 S. Trin. 
 
 12 Cf. supra, § 42. 
 
 15 Cf. Abegg. Lehrbuch der Strafwissenschaft, § 165 ; Berner, pp. 166-67. 
 
 " The Oldenburg G. B. expressly excludes the effect of a pardon in a 
 foreign country in such a case. 
 
 15 See Beseler, Comm. p. 131. 
 
§§ U6, 147.] 707 
 
 vides that a German convicted abroad of a crime inferring 
 infamy in (jermany, may be put on his trial again in Ger- 
 many in order to render him infamous there, adopting the 
 provisions of the Codes cited in the text. In Italy, the 
 Court of Appeal at Turin has decided in the case of E. v. P., 
 14th December, 1878, that a conviction obtained abroad 
 does not infer infamy so as to make an Itahan citizen unfit to 
 hold pubhc office in Italy. This is also the rule in France, 
 and there does not seem to be admitted there any process 
 for adopting the sentence of the foreign court, as is done in 
 Germany.] 
 
 A sentence of confiscation pronounced by a foreign court 
 causes a loss of property in the goods so confiscated in a way 
 which the courts of this country must recognise, if at the 
 time of the confiscation the goods were situated in the State 
 which pronounced the judgment. ^^ Confiscation does not 
 extend to property which is situated in a foreign country,^' 
 
 II. Extradition. 
 
 A. Introduction — Idea of Asylum. 
 
 § 147. 
 
 No State can exercise any rights of sovereignty within 
 another's territory except by consent. One who is prose- 
 cuted by the sovereign power of the State is therefore pro- 
 visionally safe^ when he sets foot upon the territory of 
 another State ; and it depends upon the will of the latter 
 
 1^ This follows from the propositions laid down above, in § 64, as to the 
 law of things, and is recognised in the interesting judgment of the Supreme 
 Court of Austria, reported by Temme, Arch. 6, p. 4. 
 
 w Of. BouUenois, 1. p. 344 ; Marteus, § 104 ; Schmelzing, § 164 ; Foelix, 
 ii. § 604. 
 
 1 In exceptional cases of crimes which are at once discovered, one State 
 allows another which marches with it, in terms of treaties between them, to 
 follow the criminal, but only upon condition of taking him before the judge 
 in whose jurisdiction he was apprehended. Of. Kluit, pp. 106-09. The 
 extradition of runaway slaves is not a question of criminal law, but is to be 
 determined on the principles of civU law. Cf. supra, § 47, and Marquardsen, 
 p. 42. 
 
708 [§,147. 
 
 whether it will permit him to remain or expel him, or, lastly, 
 give him up to the Power which is prosecuting him.^ 
 
 If the State, without itself imposing any punishment upon 
 the fugitive for the act which has caused his flight, allows 
 him to remain in its territory, this case is described as an 
 exercise of the right of asylum. 
 
 The right of asylum, in international law, is, in its charac- 
 ter and history, entirely distinct from the religious right to the 
 same eflect. The former is the result of the independent re- 
 lations of one sovereign State to another ; the latter arises from 
 the peculiar reverence with which some particular place is in- 
 vested — a place which may be situated in the same territory 
 as the prosecuting Government, but which is so hedged 
 about that even criminals cannot be taken from it by force. 
 This religious right of asylum was useful, and even necessary, 
 in a stage of civilisation which was but little developed, and 
 where the vengeance of the injured party was stronger than 
 the criminal law, while the authority of the State was often 
 made the instrument for oppressing the lowly and the weak ; 
 but it has been pushed aside by the regular administration 
 of justice in civilised States, and has little more than a his- 
 torical interest in Europe, whereas the other right of asylum, 
 and questions of extradition, have in modem times, when the 
 intercourse between States has increased to such an extent, 
 acquired, on that account, a special importance.^ 
 
 " Banishment and extradition must not be confounded. The former is 
 simply a question of expediency and humanity, since no State is bound to 
 receive all foreigners, although, perhaps, to exclude all would be to say good- 
 bye to the international union of all civilised States ; and although in some 
 States, such as England, strangers can only be expelled by means of special acts 
 of the legislative power, no State has renounced its right to expel them, as is 
 shown by the Alien Bills which the Government of England has at times 
 used to invest itself with the right of expulsion. Of. Kluit, p. 38 ; Mar- 
 quardsen in Kotteck's and Walcker's Staatslexicon, Art. Auftenhaltsr, 3, 
 pp. 13, 14. 
 
 3 The only thing which the religious right of asylum has in common with 
 the international right with which we are here to deal is the practical result, 
 that in both cases the State is stopped in its pursuit of the accused or con- 
 victed person. As to the religious or ecclesiastical right of asylum, see in 
 particular Bulmerincq. Asylr. i. p. 501 ; Amann and Marquardsen in 
 Walcker's Staatslex., 3rd edition, art. Asybr. i. p. 787 ; and Mohl, p. 140. 
 See below, § 154, as to the right of asylum in ambassadors' houses. 
 
^ Ur, 148.] 709 
 
 This latter circumstance explains how it has come to pass 
 that in modern times,* and especially in the nineteenth cen- 
 tury, a very great number of treaties dealing with extradition 
 and the international right of asylum have been concluded 
 among various States. 
 
 It might be thought that by this means the question 
 might have been completely solved, or that, at least, it would 
 shortly find its solution by the conclusion of treaties where 
 they do not as yet exist. But such treaties do not cover aE 
 the cases that occur, and therefore it is so far necessary to 
 discover general principles by which we can interpret and 
 extend them ; and at the same time we must meet the ques- 
 tion, on what principles such treaties are to be concluded or 
 amended in the future, so that they shall correspond with 
 principles of law which are in other matters always respected, 
 and with the common good. Authorities on this branch of 
 the law have" busied themselves with these questions up 
 to the present day. Three different theories may be dis- 
 tinguished : — 
 
 B. Nature op the Obligation to give up Criminals to the State 
 
 WHICH DESIRES TO PrOSEOUTE THEM. 
 
 § 148. 
 
 Some writers say that, in the absence of a treaty, the State 
 is under no obhgation to give up a criminal. In this view 
 extradition is a matter of discretion on the part of the 
 Government, which will be guided by its desire to maintain 
 friendly intercourse with other States.^ 
 
 * As to the Middle Ages, see &u^ra, § 131. 
 
 1 The right of the State to give up criminals is hardly disputed, except in 
 the writings of political partisans. It has specially been argued that the 
 fugitive has not transgressed the law of the country which is to give him up ; 
 and as he can only be arrested for transgressing these laws, his extradition 
 implies an unwarrantable attack upon personal liberty (see specially the 
 writings of Cauchois, Lemaire, and Gurget, criticised by Kluit, p. 23 : A'p'pd 
 h V opinion pubUque. d la Haye, 1817). But, as Kluit says, the State which 
 gives up the criminal acts upon the commission and in aid of the State whose 
 law has been transgressed. All the rights which belong to the prosecuting 
 State may be urged by the State which is to give up the criminal, in so far 
 
710 [§U8. 
 
 According to a second view, tliat obligation exists without 
 any treaty. Grotius is the first so to express himself*^ and 
 proposes to hold the State which refuses to assist another in 
 prosecuting the ends of justice, and receives the guilty party, 
 as answerable along with the criminal. The same view is taken, 
 although, perhaps, not so forcibly expressed, by Cocceius,^ 
 Buddeus,* and, most recently, Bemer.^ Vattel,® on the other 
 hand, restricts the rule to serious crimes, which are liable to 
 punishment in all nations, and establishes his theory oh the 
 ground that it is the peculiar right and duty of every State 
 to punish the enemies of the whole human race, and that it 
 will best effect these objects by giving up the criminals for 
 punishment by the State whose territory was the scene of 
 their crimes. According to Mohl,^ there is a general order 
 of law throughout the world, in which all States have a 
 share,^ and any crime committed in a foreign country which 
 offends against this order is, therefore, at the same time an 
 injury to the order of the State of the domicile ; and extradi- 
 tion is only required because the State which demands it has 
 the first claim, and is in the most favourable position for 
 investigating the matter fairly ; whereas, if extradition is not 
 demanded, the State to which the criminal has fled itself 
 
 as they are not at variance with its law. The State which has the right of 
 punishment would be able to follow a criminal, and to arrest him anywhere, 
 unleiss tins were prevented by the territorial supremacy of the other States. 
 For the view first stated in the text, see Pufendorff, Jus nat. et gentium, 
 L. viii. 6, § 12 ; Martens, § 101 ; Kliiber, § 64 ; Heffter, § 63, iii. ; Foelix, ii. 
 No. 608 ; Story, §§ 626-27. Oppenheim (pp. 192, 382) denies that there is 
 any obligation to extradition, but lays upon every civilised State the duty of 
 concluding treaties of extradition. Schmalz, Volkerrecht, p. 158, declares 
 that, as a rule, he is against extradition, because innocent persons may easily 
 be prosecuted ; and Pinheiro-Ferraire (Cours de Droit Public, ii. p. 32 
 and p. 179) proposes that there ahould be none, because every State must 
 pnnish crime wherever, or against whomsoever, or by whomsoever it has 
 been committed. Wheaton leaves the question undetermined. 
 
 2 De Jure Belli, ii. c. 21. 
 
 3 Prrelect. ad H. Grotii, libro de T. B. 
 * Jurispr. hist. Spec. p. 317. 
 
 5 Pp. 181-82. 
 
 « II. § 230. 
 
 ' See specially p. 710. 
 
 ' See, on the other hand, supra, § 137. 
 
§ 148.] 711 
 
 takes up tlie punishment, a view which Pozl seems to have 
 adopted.^ 
 
 Bluntschli ^^ remarks that the individual does not com- 
 pletely satisfy the call of duty if he merely does what is right 
 within his own sphere of activity, without offering a hand to 
 others who need it to help them to do right in their sphere ; 
 and just as little does a State entirely fulfil its task if it does 
 justly in its own dominions, but declines to give to others 
 the help they need. The duty of extradition is in this way 
 deduced from the general interest of humanity in the culti- 
 vation of justice. 
 
 An intermediate view, lastly, assumes that there is only an 
 : incomplete moral obligation, and that it is only as a conse- 
 ■quence of some treaty that any other State can demand the 
 .fulfilment of it." 
 
 Against the first theory the objection may be taken that 
 it does not sufificiently regard the rights of the fugitive. If 
 the question of extradition is to be decided merely on grounds 
 of expediency, we can hardly hope to attain to any rule for 
 all cases which will permanently satisfy the legal conscience. 
 There is, of course, nothing to prevent us from solving the 
 question whether a fugitive is to be handed over for severe 
 punishment, or to be allowed to remain in this country in 
 the enjoyment of his rights, according to passing rules and 
 interests which are foreign to the administration of justice. 
 As Kotteck ^^ remarks, here the legal problem is the first, 
 and political considerations can only have play in the space 
 which it includes. This theory seems generally to proceed 
 upon a confusion of extradition with banishment. Banish- 
 ment is regulated by rules of expediency and humanity, and 
 is a matter for the police of the State. No doubt the police ^* 
 can apprehend any foreigner who refuses to quit the -country 
 in spite of authoritative orders to do so, and convey him to 
 the frontier. Both of these steps take place in the case of 
 
 * In Bluntschli's and Brater's Staatsworterbuch, i. p. 501. 
 1° Staatsworterbuch, i, p. 521 ; Marquardsen, pp. 44, 45. 
 " So Kluit, pp. 8, 9 ; H^lie, p. 661. 
 12 Staatslex.' 2, p. 40. 
 
 12 Heffter and Marquardsen both hold extradition to be a subject for the 
 police. See, on the other hand, Kluit, p. 30. 
 
712 [§ 148. 
 
 extradition ; but yet it must not be inferred, from the super- 
 ficial likeness of the proceedings in extradition, that the 
 procedure should be conducted on the same principles in 
 both cases. It is far more necessary to keep in view the 
 entirely different object of the rules that govern them — i.e., 
 in the one case, that the country shall be rid of a person 
 who is dangerous or troublesome to the community ; in the 
 other, that a criminal shall be punished. 
 
 Nor does the argument urged by Grotius and others in 
 support of the second theory seem apposite. To refuse the 
 remedies of the law is not in itself an infraction of the law.''* 
 The inference based upon the assumption of a general order 
 of law throughout the world cannot be recognised if we do 
 not recognise its foundation. The inference from a general 
 duty of extradition must necessarily be that there is an uni- 
 versal State. 
 
 The reasons adduced by Bluntschli are, no doubt, just. 
 What they prove, however, is not an absolute legal duty, but 
 the intermediate position, which regards extradition merely 
 as a moral duty. 
 
 The duty of assisting another in following out his rights 
 is, in the position of private persons, no more than a moral 
 duty. This is also the case as between two States. It may, 
 however, be reduced to this point : that while morality often 
 requires from individuals seK-sacrifice, the State which has 
 to represent indirectly the interests of all its subjects must 
 always pursue an egotistical and selfish course.'^® No Govern- 
 ment would be entitled to take the opposite course. It 
 would thereby be giving away property intrusted to it for 
 faithful administration. 
 
 Whether one State shall assist another in its prosecutions 
 depends upon the consideration that its own interests shall 
 not be prejudiced, although it must also be sure that the 
 other State is within its rights. 
 
 If, then, we remember that every State must frequently be 
 brought into the position of being forced to claim the help of 
 
 " Kluit,pp. 8, 20. 
 
 15 Of course, we do not mean a trifling selfishness wbich would do violence 
 to the principles of equitj', and prefer a passing advantage to the permanent 
 good of the State. 
 
i 148, 149.] 713 
 
 another, in order to overtake a criminal, that in international 
 relations reciprocity is the rule, and that we can only expect 
 assistance from another if we are ready to give it, it follows, 
 as a rule, that the duty of extradition is in the interest of 
 the law of the country which is to give it, and all the more 
 so that, in the vast increase of intercourse at the present 
 day, the right of asylum which the State might concede to 
 foreign criminals might easily turn out to its own prejudice. i** 
 
 We make an exception, however — just because extradition 
 is not a duty or legal obligation — in cases where to assist the 
 foreign State in its prosecution would imply a disproportion- 
 ate expenditure of trouble or money, or M'here a deliverance 
 as to whether the claiming State was or was not within its 
 rights would be prejudicial to the interests of the other. 
 
 From this position we get the following principles, which 
 must be observed in discussing and administering questions 
 of extradition ^^ : — 
 
 Special Questions — Criminality of the Act by the Law 
 OF the State which is to give up the Criminal — 
 Proper Punishment — Pardon according to the 
 VIEW OF THE Government on which the Demand is 
 made. 
 
 § 149. 
 
 In the first place, apart from the obvious necessity that 
 criminals should only be given up to States in which there 
 is a regular administration of justice, since the sole object of 
 extradition is to support a State which is by international 
 law and usage competent ^ to punish the offence, in making 
 
 " Cf. especially Lewis, p. 35, and Mohl, p. 706. Whereas, in the Middle 
 Ages, and, still later, vphen each couutry was shut off from the other, there 
 were but few cases of extradition, in modern times it has become an ordinary 
 means to execution of a sentence (Hfelie, p. 726). Treaties of extradition 
 have never had so much importance as in the present century. 
 
 " Even the confederation of several States does not make extradition a 
 legal duty ipso jure. Cf. P. Voet, S. xi. c. 1, n. 6. 
 
 1 According to the principles already laid down, two States may in a par- 
 ticular case both be competen;t— that in whose territory the crime is com- 
 mitted, and that to which the accused belongs. Apart from special provisions 
 
714 [§148. 
 
 good its right to inflict that punishment, the State which 
 gives up the criminal must persuade itself that the other is 
 within its rights ; and the first step to that is, that the act 
 which gives occasion to the prosecution should be one which 
 the law of the State on which the demand is made lays under 
 threat of punishment.^ Although we do not in any way 
 assert that a foreign State, whose circumstances are entirely 
 different from those of this country, may not be entitled to 
 regard as criminal acts which our law does not hold to be so, 
 yet our law can never assure us that the foreign State is right 
 in so doing.* 
 
 It is a mere application of this rule that extradition does 
 not take place if the crime has already suffered prescription 
 by our law. Where our State lays down that no inquiry or 
 
 by treaty, the State on which the demand is made may choose to which she 
 shall surrender him ; and in this choice she must not follow the principle of 
 giving him up to the State of his domicile, nor that of priority, nor yet 
 absolutely the rule that he must ' be given up to the State against which the 
 graver crime has been committed (cf. Kluit, p. 64 ; Tittmann, p. 26 ; 
 Schmalz, Europ. Volkerr. B. iv. n. cap. 3), but rather that he must be given 
 up to the State from which there is most reason to expect that he will be 
 tried in accordance with the legal feelings and the law of the State which 
 gives him up. Cf. Berner, p. 186. If this principle does not.determine the 
 question, then priority must rule, or, where more than one crime has been 
 committed, the gravity of the offences ; while the State of the domicile can, 
 as a rule, have no preference over that in which the act was done, since both 
 are equally entitled to it, and the reasons which dissuade us from giving up our 
 own subjects (.infra, § 153), do not by any means establish thiit the domicile has 
 any superior right in claiming extradition. Most treaties provide that the State 
 where the act was done shall have the criminal. But in more modern treaties 
 — e.g., in the treaty between France and Hannover in 1855, art. 7— tlie choice is 
 left to the State where the criminal is. The decision of the Glerman Bund on 
 26th January, 1854, bound all its States to give up criminals mutually to the 
 State in which or against which the crime was committed, in harmony with 
 the principles of several German codes. 
 
 2 Bluntschli, p. 521 ; Berner, p. 188 ; Kluit, p. 71 ; Wheaton, § 120, p. 164. 
 
 ^ Witte maintains the opposite view, on the ground that all States must 
 mutually respect each other's independence and right of punishment which 
 depends thereon. This would be correct if it were true that there could 
 never be laws materially unjust, even in the concrete circumstances of any 
 individual State. But since this possibility certainly does exist, all that is 
 left is to take our own system of law sis the test of the justice of other 
 systems. We need not take trouble to show how gross an affront would be 
 done to legal feeling if the fugitive had done some act which, our law entirely 
 sanctioned. 
 
§ 149.] 715 
 
 deliverance upon the question can any longer Safely take 
 place, or tliat by tlie lapse of time all remembrance or 
 consciousness of the crime has disappeared, it cannot 
 co-operate with any foreign State in the- inquiry and 
 punishment.* 
 
 In the second place, it follows from the foregoing principles 
 that, if the fugitive is likely to be visited with some barbar- 
 ous punishment, which is completely at variance with our 
 views of law, we must refuse extradition.^ To co-operate in 
 carrying out any such punishment would be regarded as an 
 act against moral principle. 
 
 Further, it may be that all the foregoing requisites for 
 extradition are present, but that from the standpoint of a 
 higher equity, as that is understood by the official in 
 whom our law vests the prerogative of mercy, a pardon 
 should be granted. Extradition is excluded in such a case 
 also.® 
 
 * Marquardsen, p. 47. The rule is distinctly expressed in many modem 
 treaties of extradition (cf. e.g., the treaty of 23rd February, 1851, between 
 Saxony and Belgium ; convention between France and Prussia, 22nd June, 
 1846, art. 6). 
 
 [A decision of the Federal Court of Switzerland affirms this, Mattiotti, 
 25th July, 1877 ; and the principle was affirmed by the Federal Tribunal on 
 28th October, 1879, in the case of Lucas. By the judgment lq this case it 
 was held that one canton is entitled to refuse to surrender a refugee criminal 
 to the authorities of another, if the crime is prescribed by the law of that 
 canton in which he has sought asylum.] 
 
 * It is practically impossible to carry out the further requirement that, if 
 the law of the State which gives up the criminal would punish the offence 
 more lightly than the law of the State which demands the extradition, that 
 more lenient punishment must be inflicted ; and there is no good ground for 
 it. It does not occur in treaties of extradition. The State which gives up 
 the criminal is not in a position to estimate the relative punishment. See, 
 on the other hand, Marquardsen, p. 47. 
 
 * Some treiities contain a special provision to this effect. So, e.g., the 
 treaty between Hanover and Belgium of 20th October, 1845, art. 2. 
 
o 
 
 716 [§150. 
 
 ExcLusiojf OF Extradition foe Trifling Offences ; foe 
 Acts which aee only Punishable by the Laws of 
 SOME States — Extradition of. Political Criminals — 
 •Extradition of Persons in Neglect of Duty by not 
 
 entering on military service >extrad1ti0n for 
 
 Breach of the Oath of Military Service. 
 
 § 150. 
 
 The crime for whicli the criminal is to be given up must 
 be of suflScient importance to justify the trouble given to the 
 foreign State. It would, as a matter of fact, be trifling to 
 set the Courts, and freq[uently the diplomatic apparatus, of 
 two States in motion on account of an unimportant trans- 
 gression — e.g., a petty verbal slander — and the advantage to 
 be obtained would not compare with the trouble that would 
 be given to officials on both sides ; while, in many cases, a 
 real injustice would be done to the accused, by arresting him 
 and carrying him from the one place to the other.^ 
 
 The duty of extradition is by treaties, too, confined to 
 serious crimes.^ The only exceptions to this rule are treaties 
 
 1 Cf. Kkit, p. Y5. 
 
 ^ It is, however, inadequate to limit extradition, as, for instance, in the 
 treaty between France and England of 13th February, 1843, to cases of 
 murder, forgery, and forgery of bank notes (cf. Marquardsen, p. 46). The 
 treaties concluded between the United States and some States of the German 
 Bund, such as Hanover in 1855, go considerably farther. If such treaties 
 are not to cover all crimes, it is quite right to enumerate the offences to which 
 they are to apply in the treaty itself. If we consider the wide range of 
 punishment which is by more recent legislation committed to the discretion 
 of the judge, it would lead to uncertainty and illogical results to determine 
 the duty of extradition according to the severity of the punishment to be 
 imposed in the particular case. But it would be just as impracticable to lay 
 down a rule based on divisions of crimes, since on this head the most various 
 views might be taken (cf. Mohl, p. 722 ; Marquardsen, p. 46, is of another 
 opinion). 
 
 The treaty between France and Prussia of 21st June, 1845, describes as 
 the crimes for which extradition may be asked and given, these, viz. : — 
 
 1. Asmssinat, empoissonnement, parricide, infanticide, tneutre, viol, atten- 
 tat b, la pudewr consommi ou tente avec violence. 
 
 2. Incendie. 
 
 3. Faux en icriture authentique ou de commerce et en icrilure privie y 
 
§ 150.] 717 
 
 concluded between confederate States and laws passed by 
 such States, and such exceptions are of course necessary in the 
 case of States so closely united ; just in the same way where 
 States lie close to each other, grounds of expediency will 
 recommend an extension of the obligation ; where they lie 
 far apart, it must necessarily be limited. It is important, in 
 this view, that the duty of giving up criminals is not strictly 
 a legal obligation, and may, therefore, be refused from reasons 
 of expediency and equity. 
 
 Moreover, it wUl no doubt be said, in opposition to our 
 proposal to set all acts which are made criminal merely in 
 virtue of some legislative enactment in this or that country, 
 beyond the sphere of extradition,- — that what is called a law 
 of nature does not exist, but that every crime is punished by 
 the force of some positive regulation, and that we cannot say 
 that there are any delicta juris gentium in the sense of 
 natural laws. 
 
 But at the bottom of our rule there are sounder considera- 
 tions. If, then, an act is not liable to punishment in all 
 civilised States, although it may be so both in that which 
 demands extradition and in that upon which the demand is 
 made, we find therein a proof that the punishment of this 
 act is not generally recognised, but needs some justification 
 from the special circumstances of the State ; and, therefore, 
 if extradition is to take place, it must be established that 
 there are some such circumstances. An investigation of this 
 
 eompris le contrefaeon des billets de hanque et effets publics, si les circonsfances 
 du fait impute sont telles que s'il Mait commis en Frcmce, il serait puni d!une 
 peine afflictive et infamantej 
 
 4. Fabrication ou imission de fausse monnaie, y eompris la fabrication, 
 emission ou alteration de papier monnaie y 
 
 5. Faux timoignage, subornation des tdmoinsy 
 
 6. Vol, lorsqu'il a ite accompagni de ci/rconstances, qui Ini impriment le 
 earactkre de crime d'apres la legislation des deux paysy 
 
 7. Soustractions commises par les depositaires publics dans le cas oil,, sui- 
 vant la legislation de la France, elles seraient punies de peines afflictives et 
 infamantes. 
 
 8 Banqueroute frauduleuse. 
 
 The treaty between France and Hanover of 13th March and 9th April, 
 1855, embraces, in art. 2, some other crimes. 
 
718 [§ 150, 
 
 kind is, however, as a rule, so difficult, that it is better to 
 refuse to give up the offender. 
 
 If we examine different treaties of extradition, we find this 
 rule confirmed ; it is only the crimes which are punished in 
 all civilised States that can found a claim for extradition ; and 
 although some States, like those of the German Bund, which 
 have criminal laws that have grown up upon one common 
 historical foundation, make an exception to this rule, that 
 does not by any means condemn the rule.^ 
 
 The foregoing propositions are, upon the whole, admitted 
 by those who lay down more exact rules for extradition, and 
 do not hold it to be a mere matter of expediency. The 
 debate, however, as to the extradition of political criminals 
 has never as yet been settled. 
 
 It is, in the first place, essential to define the term 
 " political offence." It is not coextensive with the class of 
 offences against the State : the Treasury-clerk who embezzles 
 Government moneys for his own ends, or the judge who is 
 guilty of a perversion of justice, is no political offender.* It 
 seems just that these acts only should be regarded as political 
 offences which can be shown to arise out of a tendency, to 
 change the constitution of the State, or to revolutionise its 
 arrangements in an illegal fashion, or which, although them- 
 selves exceeding the formal limitations of the law, can be held 
 to be adopted as a defence against acts of the Government 
 that are formally at variance with the law or with the 
 principles of justice and equity. 
 
 In the first place, we must distinctly repudiate as a reason 
 for refusing to surrender those who have transgressed the 
 rights of a foreign State, the view that a foreign State as 
 such has no claim to the protection of our law. Such a 
 maxim would be a palpable offence against the equality of 
 legal status which every country possesses : where we claim 
 criminal jurisdiction, we cannot dispute the right of another 
 State to do the same.^ 
 
 ■'' Of. the resolution of the German Bund of 26th January, 1854, art. 1. 
 
 * Cf. Mitterniaier's note on Peuerbach's Lehrbuch, § 162, note 37, As 
 yet there is no definition of the idea of a political crime, although the expres- 
 sion is used in several treaties of extradition. 
 
 "5 Mohl, p. 715. 
 
§150.] 719 
 
 The variety of the constitutions of different States does 
 not affect the question. A republic must regard a revolution 
 effected by force in a monarchical State just as, conversely, a 
 monarchical State must regard it in a republic, as a crime.^ 
 It is also incorrect to describe, as Eotteck' does, political 
 criminals, supposing them at the same time to have been 
 guilty of such ordinary offences as robbery or murder, as a 
 defeated party, while the State is described as the conqueror. 
 It may be that that is the true state of the case, and that, 
 for instance, a Government which has, but only de facto, the 
 power of the State in its hands, is prosecuting the adherents 
 of a previous regime. To assume, however, that that is in- 
 variably so, would as a matter of fact exclude in every case 
 the punishment of political crimes, and would amount to a 
 declaration that the State which should protect the rights of 
 all is itself lawless.* 
 
 But it is a matter of the utmost difficulty for one State to 
 estimate political offences committed elsewhere aright, so 
 various are the political institutious of different countries, 
 and, even where they are alike, so various are the ways in 
 which they are administered or have grown up. 
 
 What may be considered in one country legitimate criti- 
 cism, will be held in another to be criminal, as being a 
 depreciation of the form of Government or incitement to riot- 
 ing. Even where the letter of the law is observed, it is 
 always possible that the spirit of the law may be indirectly 
 evaded, and that Government may enter upon some process 
 which will give rise to riots and disorder : a State which has 
 no concern in the matter, if called upon to judge of such 
 conduct, will never treat an attack upon a Government which 
 has for a long time been in undisturbed possession of its 
 authority, and has established a thousand claims to the 
 affectionate regard of the inhabitants of the country upon the 
 same footing as an attack upon a Government which has but 
 lately come into possession of its authority, and must assert 
 itself in this position by forcible measures. 
 
 ' Kluit, p. 85 ; Bluntschli, p. 522 ; Marquardsen, p. 48. 
 
 1 Staatslex. 3, pp. 40, 41. 
 
 ' Kluit, p. 79 ; Bemer, p. 192 ; Marquardsen, p. 48. 
 
720 [§ 150. 
 
 Besides, it will often be that there is no sufficient assur- 
 ance of an impartial judgment upon political offences being 
 given by the State against which they have been directed, 
 and the formal correctness of the sentence of a foreign court 
 is not in any way binding upon another State.® What 
 seems to be an act of justice may in truth be a service 
 rendered to the sympathies of a political party, and to a 
 malicious prosecution. 
 
 By refusing to give up a fugitive, we do not dispute the 
 right of the Government, which is in possession of the 
 supreme authority of the State, to punish those who have 
 attacked it ; if it does not desire to act upon the footing of 
 having been in the wrong, it is bound to punish them. To 
 refuse assistance in the prosecution is no denial of the right 
 to prosecute, since extradition cannot be regarded as a legal 
 obligation. If this were so, then such a refusal would imply 
 a denial of the right upon the strength of which the assist- 
 ance is demanded, and in each case the Government on which 
 the demand was made would be forced to declare whether it 
 held the legal claim to be well founded or not. If, on the 
 other hand, extradition has merely the character of a moral 
 obHgation, this may always be avoided upon the ground that 
 it is not desirable to pronounce upon the legality of the 
 criminal jurisdiction claimed. This is the ordinary case in 
 political offences. States will not always be willing to give 
 up criminals merely because the prosecuting State formally 
 shows, through its officers, that the fugitive is guilty of the 
 alleged crime, and they cannot sacrifice the adherents of a pre- 
 vious Government to a party which was but lately held to be 
 without any right thereto. If, then, it is not adopted as a 
 general rule that there shall be no extradition, a refusal in any 
 particular case to give up a criminal seems to be a denial of 
 the legality of the foreign Government, or at the least implies 
 a reflection that their procedure is unjust and inequitable, 
 and may therefore readily lead to dangerous discussions and 
 disputes. If a principle is logically applied in every case, 
 no foreign States can feel insulted, but they well may if 
 extradition is allowed to one and denied to another. 
 
 » Of. especially Mohl., p. 717. 
 
1150.] 721 
 
 Although, therefore, the Government upon which the 
 demand is made may feel satisfied of the criminality of the 
 act of which the fugitive is accused, it may refuse to give 
 him up in view of the possibility of the occurrence of other 
 cases, in which it might be driven to an irksome and often 
 to a dangerous decision as to the legality and the conduct of 
 a foreign Government.^" 
 
 It must not, however, be overlooked that these reasons are 
 not by any means of an absolute nature, and that, accord- 
 ingly, if the political institutions of all countries were firmly 
 established on the same footing, and were all ahke adminis- 
 tered in conformity with certain ruling principles of law,^^ 
 it would then be the rule to give up political offenders also. 
 We need not discuss whether this state of circumstances will 
 ever come to pass. 
 
 In the meantime, we must recognise an exception in the 
 case where States long and intimately associated in political 
 fellowship may look upon attacks on the constitution or 
 Government of the one as an indirect attack upon the federa- 
 tion and the safety of each of its members. From this point 
 of view it may not only be justifiable,^^ but it may even be 
 matter of positive enactment that political criminals shall be 
 subject to extradition under certain conditions which may be 
 determined according to the character of the federation ; 
 this view is also supported by the fact that the political 
 institutions of all these federated States, although they may 
 take various shapes, rest upon the same historical basis, and, 
 in cases of extremity, find a common protection in the 
 constitution of the federation. That this should be so is all 
 the more necessary since the safety of these States may be 
 desperately imperilled by such crimes, looking to their 
 limited extent, and to the state of their boundaries.^* 
 
 1" Of. especially Mohl. p. 705, and Marquardsen p. 48. 
 
 11 Berner, p. 192 ; Marquardsen, p. 48. 
 
 12 Bluntschli, p. 523. 
 
 Cf. Mohl, p. 726. The resolution of the German Bund of 18th August, 
 1836, binds the various members to give up any persons who are accused of 
 setting on foot any undertaking directed against the sovereign of any other 
 of the States or against its existence, integrity, constitution, or security, or of 
 being associated in any conspiracy which has any such object, or of being, 
 
 3 A 
 
722 [§ 150. 
 
 Most modern authorities ^* recognise that political refugees 
 should not be given up ; and this principle is maintained in 
 modern treaties between non-confederated countries, either 
 expressly^® or tacitly, the offences against the State which 
 we have been considering not being included in the list of 
 crimes for which extradition is to take place. ^® No treaties 
 are in modern times concluded between States unless they 
 are confederated, in which all crimes, even although political, 
 are made the ground for extradition ;^^ any exceptions may 
 be explained, like that between Austria, Prussia, and Eussia 
 in 1834,^* by the peculiar circumstances of the time, since 
 these contracting powers held it to be necessary to co-operate 
 
 favourable to any such plan. The 4th Article of the Act of Union of the 
 United States hinds all States to the mutual extradition of criminals for 
 treason, felony, or any other crime, while the 50th Article of the Swiss 
 Constitution provides : " a decree of the Federation as to the extradition of 
 criminals by one Canton to another shall have a universal force ; extradition 
 for political offences cannot, however, be made binding. 
 
 1* Besides the authors already cited (Kluit, Mohl, Bluntschli, Marquardsen, 
 Pozl, and Berner) see Lewis, p. 44 ; Fcelix, ii. § 609, and the quotations 
 there given. Heifter, too (p. 119, note 1), admits that in such cases it will 
 often be sought to impose an inadequate penalty, and the modern usage in 
 treaties is certainly against extradition. Dollmann, in Bluntschli's Staats- 
 worterbach, i. p. 817, distinctly declares himself as in favour of extradition. 
 
 '^ Of., e.g., the treaties between Hanover and France, 13th March, 1855, 
 art. 8 ; Saxony, 28th April, 1850 ; Prussia and Belgium, 29th July, 1836, 
 art. 7 ; Hanover and Belgium, 20th Oct. 1845, art. 6 ; Prussia and France, 
 21st June, 1845, art. 8 ; Prussia and the Netherlands, 17th Nov. 1850, 
 art. 4. 
 
 '" Cf., e.g., the treaty between the United States and Hanover, 18th Jan. 
 1855, art. 1. It is well known that England, like the American Union, does 
 not give up political refugees, see Lewis, p. 45. 
 
 1' Cf. on that point Ptittlingen, p. 186. 
 
 1' Hugo Grotius ii. c. 21, §§ 4-6, especially mentions among the crimes for 
 which it is usual to give up criminals those " qu(e statum publicum tangunt," 
 and alludes to various old treaties, in virtue of which Bebelles and Profugi 
 might have been claimed. In modern times, however, treaties of extradition 
 have been much more carefully constructed and developed, and the saying of 
 Claras, Sent. L. v. S. fin. qu. 38, n. 19, as to treaties of extradition— viz. ; 
 " Sed talia capitula non solent nisi ad libitum observari" — ^has long been true, 
 especially in the case of political offences. (See Marquardsen, p. 45, for an 
 account of a dispute that took place in the 17th century as to the extradition 
 of political refugees.) Besides, all offences against the State are not political 
 offences. 
 
§ 150.] 723 
 
 one witli anotlier against one organised revolution whicii 
 threatened the position and power of them all. Such an 
 exception may easily be reconciled with the principles which 
 we have laid down. If one Government is completely per- 
 suaded of the guilt of the refugees, and that they are making 
 common cause with some revolution in its own territories, it 
 may certainly be justified in assuring the other Government 
 of its aid, and in this way averting the danger which threatens 
 itself, and therefore may give up such refugees. It would 
 not, however, harmonise with the rules we have laid down, if 
 a Government should undertake to allow extradition for 
 any political offence, whether it sprang from a revolution of 
 a character which threatened the stability of both Govern- 
 ments alike or not, or ths system was to last for a period 
 in excess of the period for which the revolution should last. 
 
 After what has been said, it wiU be seen that it is not 
 from any favour to the offence that, as a rule, we must refuse 
 to give up political refugees ; still less is our judgment 
 affected by any such doctrine as that it will always be unfair 
 to visit such offences with punishment, and that measures 
 against them can only be justified as being acts of self- 
 defence. The rule is a logical deduction from the principle 
 that the State, which is not the minister of any foreign will, 
 shaU not give up an offender, unless it is persuaded that 
 thereby it is furthering the ends of justice. "The more 
 closely States are connected in their legal institutions and 
 their fundamental conceptions of criminal law, the less 
 dangerous is it that they should mutually recognise the duty 
 of surrendering criminals, and the more widely will the practice 
 of doing so extend. On the other hand, the more divergent 
 their legal conceptions and institutions are from each other, 
 the more difficult is it to satisfy the necessary conditions for 
 extradition, so that at last it disappears."^* No one can 
 dispute that at the present time the political conceptions and 
 institutions of different countries of the same grade of civili- 
 sation, and still more their fashions of administration, are 
 widely different from each other.^" 
 
 19 Bluntschli, p. 521. 
 
 ^ At the same time it is not inconsistent -with, what has been said, and is 
 
724 [§ 150. 
 
 Several authors have gone further, and declared them- 
 selves against the extradition of persons who have not 
 discharged the duty that lay upon them of entering the 
 army, or who have deserted after entering it ; this they 
 maintain, partly on the ground that the duty in which they 
 have failed is purely of a positive nature, and by emigration 
 or flight is destroyed, since it is merely a duty to the society 
 of a particular country, even although the law of the State 
 where the refugee is recognises the obligation as reasonable 
 and equitable ;^^ partly because, putting out of sight the 
 excessive penalties sometimes imposed in such cases, if all 
 who were liable to military service were to be surrendered, the 
 obligation would be imposed upon men of all ages and con- 
 ditions, and a means would thus be found of evading the 
 prohibition against the extradition of political offenders.^^ 
 
 As regards the first case, — the extradition of persons who 
 have not yet actually entered the army, — it will seldom be 
 found that it is proposed to inflict any punishment of such 
 severity as is usual in cases where extradition is asked, so 
 that for this reason a person in that position is seldom 
 demanded for extradition, and all assistance must un- 
 doubtedly be refused by us, if in the view of our law the 
 obligation is oppressively heavy, or if failure to satisfy it is 
 threatened with inordinate penalties. Now, although it is 
 
 indeed essential to the friendship of adjoining nations, that acts of hostility 
 committed in any State against a foreign power shall be liable to punishment, 
 and that regulations, varying with the circumstances, shall be framed so as 
 to prevent such acts (e.jr., that the refugees should be confined or banished). 
 This is a far better way of securing the safety of the foreign State than the 
 extradition of the refugees. Although it may be that political offenders are 
 encouraged in their undertakings by the remembrance that if the worst 
 comes to the worst they may find an asylum in a foreign country, still 
 questions as to extradition do not arise till the immediate danger for the 
 State which is threatened is past ; and it is primarily the hope of the success 
 of the plan which, in political crimes, will make the party of attack domir 
 nant, and therefore free them from punishment, and not the uncertain 
 prospect of escaping in case of failure, that determines the conspirators. 
 Complaints, too, are more frequently made because refugees are allowed' to 
 renew their attempts upon foreign soil, than because of any refusal to give 
 them up. See Mohl's Notes, pp. 718, 758 ; Lewis, p. 71. 
 
 21 Eotteck, Staatslex, ii. p. 41. 
 
 22 Mohl, p. 723. 
 
§ 150.] 725 
 
 a most material consideration that this obligation to serve in 
 the army is not recognised by all nations,^^ a Government 
 cannot be blamed if, for the sake of keeping up its own 
 military system, it allows the extradition of foreign con- 
 scripts in order to be able to claim a reciprocal favour from 
 the other State ; it must, however, on the one hand, not 
 overstep these general principles, and must lay down distinct 
 provisions in any treaty on the subject, to prevent abuses ; 
 and, on the other, there must be a pressing necessity for this 
 mutual aid. In all circumstances, a Government must exer- 
 cise the greatest care in carrying out a duty of this kind.^* 
 
 On the other hand, a breach of the military oath must be 
 recognised as a criminal offence by all civilised peoples ; in 
 this case, too, extradition is as a rule justifiable, and there is 
 no ground for any exception, unless the obligation imposed 
 by the foreign State plainly goes beyond the limits which 
 our law holds equitable, or unless entry into the service 
 is effected in some way that offends our legal conceptions — 
 e.g.i by recruiting for some immoral consideration, or unless 
 the deserter is to be punished in a barbarous fashion, and the 
 State which demands extradition will not agree to bind itself 
 to any abatement of the penalty .^^ Cartels which deal ex- 
 clusively with deserters concluded between States in which 
 the obligation of military servii3e rests on pretty much the 
 same basis, and in which any violations of that obligation are 
 regarded in pretty much the same light, are by no means to 
 be condemned, and have been actually concluded in very 
 many cases : ^^ there is no force in the objection that these 
 are mere questions as to the satisfaction of social duties, since 
 the liberty of emigration, which every subject enjoys, can 
 
 ^ Of. supra, note 3. 
 
 ^ Some Governments have concluded cartels applicable exclusively to 
 refractory conscripts. 
 
 ^ Kluit, p. 78, lays down that, in the absence of special treaties, the 
 general rule must be that there shall be no extradition. 
 
 20 See upon these treaties, Foelix, ii. § 602; Piittlingen, p. 290 ; Wheaton, 
 § 120, pp. 164-65. It seems proper, since the military regulations of 
 another State are so easily altered, that these treaties should only be con- 
 cluded for a specified time, or that notice of any alterations should be required. 
 In recent treaties this has, as a rule, been done. 
 
726 [§'150. 
 
 only be exercised upon the footing of haying satisfied the 
 duties which all States recognise as just.^' 
 
 Offences against revenue laws will, lastly, as a rule, not 
 give rise to extradition, just because the penalties provided 
 for these offences affect property only, and are not of a police 
 character.^ Even the resolution of the German Bund, on 
 26th January, 1854, excepts such offences from the law of 
 extradition, although the union of several States in a fiscal 
 confederation promises an extension of the ordinary legal 
 remedies, in so far as offences against the common system of 
 finance are concerned. ^^ Such a union may give occasion for 
 the punishment of acts which are directed against foreign 
 fiscal regulations only.^" It is, however, to be kept in view 
 that in the case of fiscal offences no assistance can be 
 expected from other countries unless there is a special 
 treaty. 
 
 Since extradition is not to take place, as we have shown, 
 for all crimes and offences, the person who is given up can- 
 not, after that has taken place, be punished for any crime 
 other than that stated to the foreign Government, without 
 the concurrence of that Government being first obtained, or 
 unless the act was committed after extradition had taken 
 place. ^^ The fact that the one crime is allied to the other 
 cannot make any difference. ^^ 
 
 Any other rule of procedure would do violence to the 
 
 ^ Treaties for the extradition of runaway sailors are very common (Kluit, 
 p. 124). 
 
 28 Of. Mohl, pp. 724-25. 
 
 '^ Of., e.g., the cartel of the German Fiscal Federation, 11th May, 1833, 
 art. 7. 
 
 3° Cf., e.g., the Hanoverian Law of 12th December, 1853, as to the prohi- 
 bition of salt smuggling in neighbouring States. 
 
 2' Cf especially the proclamation of the French Ministry of 5th April, 1841 
 (Foelix, ii. § 641). E.g., if the crime charged turns out to be some trifling 
 delict which would not justify extradition, the punishment cannot be 
 imposed ; and if that should be shown in the course of the preliminary 
 imiuiry it must be stopped, unless the accused desires it to be continued. 
 
 =2 H^iie, p. 719. The juristic quality of the act settles the questioii. If a 
 person is given up for a common crime, it is not yet determined that the con- 
 curience of the other State would be given to his being punished for a politi- 
 cal offence. 
 
|§ 150, 151.J 727 
 
 international agreement which is at the bottom of all extra- 
 dition.^^ 
 
 Extradition of Subjects of the Coxjntrt — ExTEiDiTioN 
 IN Cases where the Person Demanded has Com- 
 mitted AN Offence within the Jurisdiction of the 
 State where he is — Sufficiency of Suspicion. 
 
 §151. 
 
 All States, with hardly any other exceptions than England'^ 
 and the United States, refuse to give up their own subjects : 
 in some States this is matter of express enactment. 
 
 It rather appears to me that the ground for this refusal 
 is not to be looked for so much in the notion that to give up 
 its own subjects is inconsistent with the dignity of the State, 
 and the protection which it is bound to accord to its sub- 
 jects,'' as in the fact that, upon the one hand, every subject 
 has a right to remain in his own country ; a doctrine which 
 derives confirmation from the universal recognition in modern 
 times of the incompetency of banishing the native subjects of 
 any country from it, and, upon the other, that an offence 
 which gives the State occasion to take proceedings against a 
 subject, finds its appropriate judge in that State and not 
 abroad.^ We can explain the readiness of England and the 
 
 33 Heffter, p. 120 ; Kluit p. 89. In France, the criminal who has beea 
 given up may, upon the ground of the regulation of Art. 6 of the Code 
 d'Instruction (cf. supra, § 33, note 9), take a formal objection in court if he is 
 accused of any other offence than that for which he was given up. No 
 account, of course, is taken of circumstances which heighten or lessen the 
 criminality of the act charged. H^lie, p. 721. 
 
 1 Cf. Lewis, p. 49. 
 
 2 The true reason is not, as, Marquardsen thinks (p. 46), that the admini- 
 stration of justice in the foreign State is not trusted. This would prevent 
 
 , any extradition at all. See, on the other hand, Lewis, p. 49. 
 
 •? Against the extradition of subjects, cf. Vattel, i. § 232, ii. § 77 ; Martens, 
 § 101 ; Wheaton, § 120, p. 164 ; Ortolan, No. 897 ; H^lie, p. 668 ; Oppenhelm, 
 p. 192 ; Mittermaeir ; D. Strafverfahren, § 55 ; Berner, p. 184 ; Heffter, 
 p. 118; Foelix, ii. No. 324 ; Criminal Code of Oldenburg, art. 501 ; Belgian 
 Statute of 1st October, 1833 (Foelix, ii. p. 277, note 1); Landesgrundgesetz 
 of Brunswick, § 206; Code of Wiiitembeig, art. 6 ; of Baden, § 7 ; of 
 Austria, § 36. Prussian subjects, too, are not given up (Berner,, p. 185, note 
 1). In France, an Imperial decree of 23rd October, 1811, placed the extras 
 
728 [§ 151. 
 
 United States to give up their own subjects, and the fact that 
 it is only upon grounds of reciprocity that in some treaties 
 concluded between the States and foreign Powers such a 
 course is sanctioned,, from the adherence of these two 
 countries to the principle of territoriality : this would, if 
 every State at the same time steadily refused to give up its 
 own subjects, afford a secure asylum to the most abominable 
 criminals — a result which, as the treaties stand, may even at 
 the present time sometimes happen. But extradition may 
 always take place if the crime was committed before the 
 criminal was naturalised in the country where he is, since in 
 that case its law has suffered no wrong, and has, therefore, 
 no jurisdiction. 
 
 A person whose extradition is demanded cannot be given 
 up so long as he is undergoLug punishment, or is upon his 
 trial in the country upon which the demand is made, for the 
 prosecution of each State's own claims and rights is preferable 
 to any claim for assistance which a foreign system of law can 
 urge.* This, too, has been expressly recognised in modem 
 treaties. An exception to the rule is allowed, in the discre- 
 tion of the State on which the demand is made, in cases 
 where the crime conimitted in its territory is trifling, while 
 that which was committed in the other was serious. This 
 course is made the easier by stipulating for the right of 
 reclaiming the prisoner if he should come to be acquitted by 
 the State that demands his surrender, except in cases where 
 such a reclaiming should seem to be too severe a measure.® 
 
 dition of French subjects at the pleasure of the Euiperor. No use, however, is 
 made of this provision, as to the continued validity of which there is some 
 doubt, and in all the more recent treaties concluded by France the extradition 
 of its own subjects is refused. Some older treaties between German States 
 make the extradition of their own subjects matter for special agreement in 
 the particular case ; so, e.g., the treaties concluded by Hanover on 24th April, 
 ] 798 ; with Brunswick ; and on 20th May, 1828, with Saxe-Weimar. 
 
 * Heffter, p. 120 ; Khiit. p. 65. Of. the resolution of the German Bund, - 
 26th Jan. 1854, art. 1, No. 3 ; proclamation by the French Government, 5th 
 April, 1841 (FobHx, ii. § 613). 
 
 ^ On the other hand, the prisoner's indebtedness, as the interest of indivi- 
 duals, cannot be set before the public interest in his punishment, at least if 
 extradition is asked on account of any serious crime. See, e.g., the treaty 
 between France and Prussia of 1845, art. 9, and the proclamation of the 
 French ministry already cited. 
 
§ 151.] 729 
 
 Lastly, extradition does not come into play if the courts of 
 the country whose assistance is sought in vindication of 
 justice are by their own laws coropetent to try and to punish 
 the offender.'' There is apparently an exception to this rule, 
 where, according to the view of the law, there is either an 
 express 'or an implied provision — e.g., laid down in the 
 " motif " — that this competency is in the case in question 
 subsidiary only — i.e., only in so far as some State with a closer 
 interest does not require the extradition of the criminal. 
 
 If these are the material rules of law that must be observed 
 in questions of extradition, we find that, as regards the form 
 of carrying it out, since it cannot take place except through 
 the arrest of the criminal, there must be sufficient suspicion 
 to justify such procedure according to the law of the State 
 where it takes place, and of course, as the question here is not 
 a question of provisional management, but is concerned with 
 an act that enters very deeply into the rights of the individ- 
 ual, the suspicion must be such as would justify us in placing 
 the criminal before one of our own courts, if the competency 
 of any of them were established. Logical necessity demands 
 that this suspicion should be established by the machinery of 
 the State which is to give the criminal up,^ and this is the 
 provision actually made by the treaties between the United 
 States and the States of Europe, and also by the treaty 
 between England and France in 1843.^ In other cases the 
 framers of treaties have been contented with a warrant for 
 arrest issued by the courts of the country where it is to be 
 made, a provision which no doubt contributes largely to the 
 simplification and despatch of the process, if in both States 
 the principles that regulate arrests and the raising of actions 
 are pretty much the same. It is, however, not quite free 
 
 ° This i.s, for instance, expressly provided in the resolution of the German 
 Bund, already mentioned (art 1, 2). 
 
 ' Of. Austrian Code, § 39. 
 
 * Klnit, p. 115 ; Carpzov. (Practica, P. iii. qu. 110, n. 65) foUowinjj the 
 lead of Fadnacius (Praxis et theoria, i. tit. 1, qu. 7, n. 34) remarks : " TJnde 
 summaria mquisitio prcecedat necesse est, quw orialur ex delicti istius pro- 
 batione sv/mmaria saltern a requirente Uteris requisitoriis inserta." See, too, 
 Grotins, ii; 0. 21, § 4, n. 1. 
 
 9 Lewis, p. 52. 
 
730 [§ 151, iVo<e GG. 
 
 from danger where there is a possibUity that in the one 
 State the freedom of the individual may not be regarded in 
 quite the same hght as in the other. ^" That the grounds for 
 suspicion must be tested by the law of the country itself does 
 not of course prevent the accused from being previously 
 arrested or watched on the strength of a simple intimation 
 from foreign officials, or even without any such intimation, 
 provided the law of the State which is to surrender him finds 
 sufficient reason for such a procedure. ^^ 
 
 Note GG, on §§ 149, 150, 151. 
 
 [In consequence of the Report of a Parliamentary Committee 
 in 1868, there was passed in 1870 an Act t6 regulate the 
 law relating to the extradition of criminals from England (33 
 & 34 Vict. c. 62). The object of this Act is to lay down 
 general principles on which treaties or airangements with 
 foreign powers for the extradition of criminals may be con- 
 cluded. These arrangements when made are to be embodied 
 in an Order of the Privy Council, and laid before Parliament, 
 and no arrangement is to be made except according to the 
 general provisions of the statute. It is provided that fugitive 
 criminals for whose surrender provision is to be made are to 
 be understood to be such persons as have been accused or 
 convicted of any extradition crime committed within the 
 territory of any foreign State, and are suspected of being in 
 Her Majesty's dominions. There is no provision against the 
 extradition of the Queen's subjects ; the determining con- 
 
 1° Lewis blames the provision of the treaty of England with America as 
 unpractical, and says that iu most cases it actually hinders the extradition. 
 Extradition rests upon confidence in the administration of justice by the State 
 to which the ciiminal is to be surrendered, and we should put the same con- 
 fidence in the warrants issued by their courts. If, as in England, there is a 
 close adherence to the principle of an oral investigation, the most manifold 
 difiioulties must necessarily arise. But where it can be conducted in writing, 
 the principle laid down in the text may be applied as being strictly accurate, 
 and where the opposite is the case, a special legislative provision, giving the 
 judge power to decide upon the ground of the result of inquiries abroad that 
 mi)/ht be laid before him, would perhaps attain justice. 
 
 " Modern treaties provide that in such a case a formal warrant must 
 follow within a certain specified time. 
 
J^oteGG.] 731 
 
 sideration is the locus delicti. The crimes called extradition 
 crimes are : — 
 
 Murder and attempt to murder, and conspiracy to murder. 
 
 Manslaughter. 
 
 Coining. 
 
 Forgery. 
 
 Embezzlement. 
 
 Obtaining goods on false pretences. 
 
 Fraudulent bankruptcy. 
 
 Fraud by a bailee, banker, agent, factor, trustee, or director, 
 member, or pubhc officer of any company. 
 
 Rape. 
 
 Abduction. 
 
 Child-stealing. 
 
 Burglary and housebreaking. 
 
 Arson or fire-raising. 
 
 Robbery. 
 
 Threats by letter. 
 
 Piracy. 
 
 Sinking a vessel at sea, or conspiracy to do so. 
 
 Assault on board ship on the high seas with intent to do 
 grievous harm. 
 
 Revolt or conspiracy to revolt on board ship on the high 
 seas against the master. 
 
 No one is to be surrendered for a political offence, or if the 
 object of the surrender can be shown to be to try him on a 
 political charge, although he is accused of some other crime ; 
 nor is any criminal at all to be surrendered unless the law of 
 the State demanding the surrender shaU make provision that 
 he is not to be tried for any offence other than that for which 
 he is given up without being allowed an opportunity of return- 
 ing to the Queen's dominions. It is also provided that where 
 a prisoner has been surrendered to England, he shall have an 
 opportunity .of returning, or shall be restored to the country 
 which surrendered him before being tried on any new charge. 
 
 The German Code of 1871 forbids the surrender of a 
 German citizen for any crime, and this is the principle 
 generally adopted on the continent of Europe, as stated in 
 the text. In the statute just referred to there is no pro- 
 vision of the kind ; and as the language of treaties cqn- 
 
732 [Note- GG. 
 
 eluded in accordance with its provisions generally leaves it 
 in the discretion o£ the high contracting parties to apply 
 their own law on this point, the practice is regulated by the 
 usage of the country on which the demand for surrender is 
 made. The Lord Chief-Justice Cockburn, in Tirnan's case, 
 1864, 5 Best & Smith, 679, enunciates the principle upon 
 which English courbs proceed thus : "A British subject who 
 commits a murder in the United States may be tried and 
 punished by our municipal law, which is made to extend to 
 its citizens in every part of the world (24 & 25 Vict. c. 100, 
 § 9). But it would be highly inconvenient, except in certain 
 exceptional cases, that he should be tried in this country for 
 that crime, because criminals escape, not only by being beyond 
 the reach of the law they have offended, but in consequence 
 of the difficulty, if not impossibility of proof, unless the 
 offender is brought to justice where the offence is committed." 
 When it is added that the provisions of the statute 24 & 25 
 Vict. c. 100, quoted by his Lordship, do not apply save to 
 murder and bigamy, and that the territorial principle is most 
 strictly observed in England, the result of not surrendering 
 English subjects would be not merely a risk, but a certainty 
 of their impunity. Hence, where, in a treaty with Austria, 
 the provision occurred, " that in no case, and on no grounds 
 whatever, shall the high contracting parties be held to concede 
 the extradition of their own subjects," and an attempt was made 
 to contend that the provisions of this article made it as imprac- 
 ticable for England to surrender to Austria an Englishman as 
 it would be to obtain the surrender of an Austrian from 
 Austria, the magistrate (Mr. Vaughan) rightly held that the 
 language of the article gave him a discretion in the matter, 
 and that it had been so framed in order that the guilty Eng-i 
 lishman might not escape by taking refuge in England, as 
 he would do if his crime were any other than murder or 
 bigamy ; while the Austrian courts, on the other hand, should 
 not be required to do violence to the principles of law 
 administered by them, they having the power and being in the 
 practice of punishing their subjects for crimes without regard 
 to the locus delicti. The criminal was accordingly given up. 
 This was in the well known case of De Tourville, then 
 charged with murdering his wife on the StiLfser Jooh 
 
N6te GG.] 733 
 
 in Austria, subsequently convicted of that crime and 
 sentenced. 
 
 There may be a difficulty, as is indicated in the text, in 
 determining what shall constitute a political crime. It was 
 proposed by the committee in their report that the statute 
 should bear that " any person accused < of a crime which is 
 deemed by the party to the arrangement of whom the sur- 
 render is demanded to constitute assassination or an attempt 
 to assassinate shall not be " surrendered. The determination 
 of the character of the offence has, however, been left to the 
 Secretary of State. 
 
 Various instructive cases have occurred under the proviso, 
 that no one shall be tried for any other crime than the extra- 
 dition crime for which he was given up, as well as under the 
 similar conditions which occur in most treaties, and have had 
 judicial interpretation given them. The words in the Eng- 
 lish statute which governs the terms of all English treaties 
 for English judges are — " for any offence committed prior to 
 his surrender other than the extradition crime proved by 
 the facts on which the surrender is grounded." It was held 
 that these words did not prevent the incarceration of a 
 person surrendered by the French authorities on a charge 
 of fraudulent bankruptcy, the, ground of incarceration being 
 a contempt of the Court of Chancery. That court had 
 ordered the prisoner to produce certain papers. He had fled 
 the country, and was surrendered upon the charge of fraudulent 
 bankruptcy. On this charge he was acquitted ; but before 
 he could return to France, was thrown into prison for 
 contempt of the Court of Chancery, in respect of his failure 
 to obtemper their order. An application for his discharge, 
 founded on the terms of the extradition statute, was refused. 
 It was held that the statute referred exclusively to criminal 
 charges, and that, contempt of court being no crime, and the 
 punishment following on it being a species of civil diligence, the 
 statute did not apply (Pooley v. Whittam, 15 Ch., Div., 435,, 
 July 23, 1880). In the same way, the American courts have 
 held, interpreting a similar clause in the case of a criminal 
 surrendered by France, that, if arrested on civil process, he 
 could derive no benefit from the statute (Adrianee v. Lagrave, 
 1874, 59 N. Y. 110). It is to be remarked that in both of 
 
734 [Note GG. 
 
 these cases the court was satisfied of the bona fides of the 
 criminal charge preferred. If there had been ground for 
 believing that the civil creditor had contrived false aflSdavits, 
 or had simulated a criminal charge in order to execute the 
 civil diligence, they would not have been suffered to take 
 advantage of their fraud. 
 
 But it has been held that one given up on a charge of 
 rape may be tried on a charge of assault with intent to 
 ravish (Rich, 31st May, 1877, C. de Cassation at Paris). 
 The same court has gone a good deal further, in holding that 
 a person surrendered on a charge of fraudulent bankruptcy 
 cannot complain of being tried and sentenced for forgery as 
 well, if the whole sentence is not greater than it was com- 
 petent to pronounce for the former crime by itself (Brandoly, 
 25th August, 1876). A criminal cannot be tried for any 
 offence that does not happen to be included in the treaty of 
 extradition under which he was given up, even although the 
 charge is less grave than that preferred against him before 
 the foreign authorities. It is doubtful whether he can consent 
 to be so tried, or whether the incompetence of the court is 
 absolute (Cour. de Cassation, Brussels, 9th July, 1872). 
 
 An interesting question has been stirred in Italy in con- 
 nection with this subject — Is it comjjetent to put a person 
 surrendered for having committed a particular act, which has 
 been represented to the foreign authorities as falling under 
 one legal category, on his trial for the same act under a 
 different legal designation ? Can one who has been sur- 
 rendered on a charge of assault be tried for assault with 
 intent to murder, or, if the victim dies, for murder ? The 
 courts of Florence have said that he may, provided that the 
 new charge is, as well as the old one, an extradition crime. 
 But a soldier surrendered for assault could not be tried 
 for the military offence of assaulting his officer, which is 
 not a crime included in the treaty under which he was 
 given up. 
 
 A corollary from these provisions is, that one Government, 
 having obtained the surrender of a prisoner on one charge, 
 has no jurisdiction to transfer him to a third Government 
 Switzerland, having obtained the surrender of a criminal 
 from England, cannot transfer the criminal to German juris- 
 
Nou GG, § 152.] 735 
 
 diction without allowing him to return, or restoring him 
 to England (Federal Court, 16th March, 1877, Diirrich)]. 
 
 yCoMPETE-NCT OF DlFFEEENT OFFICIALS PRACTICAL EXECU- 
 TION OF THE Process of Extradition — Expenses — 
 Transmission of Productions. 
 
 §152. 
 
 , Extradition only takes place after diplomatic communica- 
 tions and under authority of the supreme magistrate, unless 
 in adjacent States a direct demand by the officials of the 
 courts of law is allowed.^ In France, Holland, and Germany 
 the officers of the courts of the country making the demand 
 apply to their minister of justice, who has to request the 
 minister for foreign affairs to take the proper steps, while 
 conversely the conduct and decision of the matter rest upon 
 the minister of justice in the foreign State. 
 
 It is certainly expedient that extradition should not be 
 committed at all to inferior officers, or at least committed to 
 them only to a limited extent, since, eren where there is a 
 treaty, questions of difficulty may easily arise, and the 
 inferior judge is frequently not in the position to supply 
 himself with material necessary for the expounding of the 
 treaty ; this is the rule of most treaties.^ 
 
 Further, although the power of deciding points of dispute 
 in the treaties is in the States of the European continent 
 committed to Government and not to courts of law,^ the 
 
 1 It is no exception to this rule that in England the Home Secretary 
 conducts extradition proceedings. There is no special administrative func- 
 tionary such as the minister of justice, and his duties are in many other 
 matters managed by the Home Secretary. Gneist. das Englische Verfas- 
 sungs-und-Verwaltungsrecht, i. p. 315. The revised Hanoverian Ordinance 
 for Criminal Procedure of 1859, § 231, div. 4, provides: "As regards the 
 execution of the sentences of foreign courts, or the extradition of natives or 
 foreigners demanded by foreign officials, the minister of justice shall decide, 
 in the absence of any generally applicable enactment or special treaty. 
 Officers of justice here are to report to him in cases where that is necessary." 
 
 2 E.g., in Prussia (cf. Berner, p. 196) and in Hesse (cf. Foelix, ii. § 631). 
 
 3 Cf. Farinacius, L. 1, tit. 1, qu. 6, § 42 ; Kluit, p. 113 ; Hetfter, p. 120 ; 
 Foelix, ii. § 613. 
 
736 ! [§ 152- 
 
 provision of the Prussian law and of the Belgian, enacted 
 respectively in 1805 and 1833, recommends itself — viz., that 
 extradition should not take place until Government has 
 obtained the approval of one of the higher courts.* This 
 plan, which makes international remedies in matters of 
 criminal law more akin to ^ the other rules of criminal pro- 
 cedure which are generally recognised, not only relieves the 
 Government of serious responsibility, but also protects it 
 against any unfair demands from a foreign State, which will 
 not readily tax the sentence of judges with any bias or party 
 feeling„- 
 
 .Since every State may exercise its discretion as to the 
 punishment or pardon of a criminal who has transgressed its 
 criminal law, no one - can require any State to accept an 
 offer of extradition unless there be some special provision 
 in a treaty to that effect ; ® its obligation to take back 
 its own subjects into its territory is of course not affected 
 by this.'' 
 
 Extradition as a rule takes place upon the frontier, or else 
 the criminal is put on board of a ship belonging to the State 
 which desires t6 try him. If he requires to be conducted 
 through the territory of any third State,^ the consent of this 
 State must be obtained.® Further, since the extradition 
 takes place on the demand, and in the interest primarily of 
 the prosecuting State, the expense must be borne by it j^" in 
 
 ' '. * Thk proper course for any magistrate to whom direct application is made 
 by the ofeers of a, foreign State, if there is danger in delay, is to apprehend 
 the aecused'arid to make that known to the foreign officials, but to report to 
 his superiors that a demand for extradition has been made, cf. Kluit, pp. 
 104-12. Convention between Hanover and the Netherlands, 28th Oct. 
 1817, arts. 8-9. [See the provisions of the Extradition Act in England, 1870. 
 In Belgium it has been held that judicial authority is not required for the 
 surrender where an extract-sentence of a foreign court in proper form is 
 produced to the minister. Cour de Cass, at Brussels, 9th July, 1872.] 
 
 5 H61ie, pp. 703-12 ; Berner, p. 196 ; Marquardsen, p. 50. 
 
 « Kluit, pp. 92-3 ; Heffter, p. 120. 
 
 7 Cf. su2Jra, § 30. 
 
 ' The reSDlutioa of the German Bund so often mentioned was of course 
 bound to pronounce that they should pass freely (art. 7). 
 
 » Where there is no treaty a promise of reciprocity is as a rule required. 
 
 1" Kluit, p. 120. 
 
1 152, 153.] 737 
 
 many treaties, however. States liave given up tlieir claims for 
 any expenses incurred within their own territory. 
 
 Where a criminal is given up, it seems to be suggested, by 
 the reasons which justify the surrender, that articles to be 
 produced as evidence found upon the prisoner or in his pos- 
 session should be given up at the same time ;" this duty is 
 recognised in treaties, as well as the farther obligation involved 
 in the duty of extradition — ^viz., to interrogate the witnesses,. 
 and in adjacent countries to produce them at the trial. 
 
 C Importance of Treaties of Exteadition. 
 §153. 
 
 As we have said, within certain limits, the extradition of 
 ordinary criminals will not be lightly refused, even where 
 there is no treaty of extradition.^ At the same time, the 
 importance of these treaties is not to be lightly estimated.^ 
 In the first place, it is not possible to regulate a priori the 
 cases in which extradition should be allowed, at least, in so 
 far as that is affected by the gravity of the crimes, and just 
 because of that it will serve a useful purpose to unite there- 
 with some rules that wiU be generally recognised, that we 
 may not fall into hasty or contradictory decisions in practice. 
 In the second place, by the establishment of some such- 
 general rules, unprofitable disputes and elaborate discussions 
 will be avoided, and ofiicials will be enabled to prosecute 
 criminals with more celerity. Lastly, complete reciprocity 
 wiU be secured. At the same time, it should not be over- 
 looked that such treaties have assisted the development of 
 our subject in the most marked way.^ 
 
 11 Kluit, p. 119. Cf., e.g., the treaty between France and Prussia, art. 3. 
 
 1 The special restrictions imposed upon the GoTemments of England and 
 the United States by the constitution of their countries explain, as we have 
 determined in the text, why they refuse to give up criminals except where a 
 treaty exists (of. Kluit, p. 37 ; Fcelix, ii. § 641 ; Levita im Gerichtsaal, 
 1857, p. 22). 
 
 2 H^lie, p. 693-94. 
 
 3 Cf. supra, § 150. 
 
 3B 
 
738 [§154. 
 
 Eight of Asylum in Ambassadoks' Houses, 
 OR ON BoABD Ship. 
 
 § 154. 
 
 No rigM of asylum can be claimed for tlie houses of 
 ambassadors unless there be some special concession of such 
 a right from the State to which they are accredited.^ For 
 the rights of extra-territoriality which ambassadors enjoy do 
 not import that their houses are to be treated as if they 
 were really beyond the territory, but merely as protecting 
 the person of the ambassador from the jurisdiction of the 
 State and its criminal law. Other persons, who do not enjoy 
 these privileges as the members of his family do, may be 
 arrested there. But in such cases the papers of the ambas- 
 sador must remain undisturbed, and notice will be given to 
 the ambassador before any arrest is made, so as to avoid 
 doing any violence to his peculiar rights.^ It will not now 
 avail as an argument that in earlier days European States 
 allowed the houses- of ambassadors to enjoy the right of 
 asylum. [See supra, p. 699, Reichsgericht at Berlin.] 
 
 On the other hand, I am inchned to think that an asylum 
 can be afforded to fugitives on board foreign ships of war, 
 since in this case there is not a mere personal extra-terri- 
 . toriality, but one that is inherent in the thing itself,* 
 always reserving to any State the right of opening its ports 
 to foreign ships of war solely on condition that they shaU 
 not take refugees on board, and also the right to require the 
 
 1 As a rule, by virtue of special treaties, the houses of the consuls of 
 European Powers in the pagan States of the East enjoy a right of asylum. 
 Ortolan, No. 947 ; Amann and Marquardsen, in Eotteok's Staatslex, i. 
 p. 798. 
 
 ^ This notice may be giyen in the form of a request to allow the arrest to 
 take place ; and if this permission is refused, then a remedy may be sought 
 through diplomacy. In any case, the house can be watched, and, if neces- 
 sary, be entered by force. Of. Kluit. p. 94 ; H61ie, p. 559 ; Heifter, ■ § 63, 
 ix. ; Ortolan, §§ 521 and 945 ; Amann and Marquardsen, pp. 797-98. 
 
 " Of. mpra, § 115. Kluit, pp. 99-101, is of a diflferent opinion. 
 
§ 154] 739 
 
 instant departure of such ships of war as have refugees on 
 board.* 
 
 * As to the relation of different provinces of the same State, see what was 
 said, supra, § 28, and in discussing civil procedure. As a rule, unconditional 
 execution will take place here, even although there may be various criminal 
 regulations — e.g., police regulations — ^in force in the various States. Of., e.g., 
 the Revised Criminal Procedure for Hanover, § 231, rule 1. 
 
INDEX. 
 
 Acceptance, see Bill. 
 
 Accident, effect of alteration of obligation by, 300 ; collision of shipa by, incidence 
 of liability, 490. 
 
 Accomplice, subject to law of place where his act was done, 681 ; unless the 
 principal act was not criminal by the law of the place where it was done, 
 681 ; law in Switzerland, 683. 
 
 Acquittal, judgment of, recognised according to jus commune of Middle Ages, 622. 
 in domicile will not prevent new trial at locus delicti if judgment given 
 because act not criminal, 685, 687 ; foreign, generally recognised as equiva- 
 lent to native, 687 ; recognition of, justified on equitable grounds, 691. 
 
 Acte de naissance, effect of, 415. 
 
 Actio de eo quod certo loco, 524. 
 
 Actio judicati, 577 ; court appropriate to, 582. See Execution. 
 
 Actio Pauliana, 600. 
 
 Actiones in rem scriptce, 516, 543. 
 
 Actiones reales, personaZes, mixta, classification of by Burguudus, 670. 
 
 Action, right of, determined by law of claim on which action rests, 503 ; belongs 
 
 to foreigners as well as to natives, 508, 512 ; in France one foreigner not 
 
 allowed to sue another, 509 ; explanation of this rule, 510 ; exceptions 
 
 admitted, 511, 513, 514 ; Belgian rule on this subject, 515. 
 
 on bills, 352. 
 
 by assignee, law of obligation assigned will determine whether such action 
 
 can be brought smo nomine or not, 303, 503. 
 for declarator or recovery of property in immoveables regulated by lex rei 
 sitce, 241 ; for vindication of moveables by lex domieilii of defender, 243 ; 
 in actions for recovery of moveables raised in foro domicilii all limitations 
 of action for behoof of possessor must be respected, 244 ; in real actions 
 raised in foro rei sitce only such limitations as it allows are respected, 245; 
 limitations imposed by lex fori not respected, 246. 
 prescription of, is no mere rule of process, 316 ; law of the contract is no 
 determinant for prescription, since parties cannot be supposed to have had 
 it in contemplation, 318, 319; in case of immoveables and moveables per- 
 manently affixed, lex rd sitce rules, 246 ; in case of moveables, lex domiciUi 
 of possessor, 246 ; different theories as to proper rule tor, 316 et seq. ; lex 
 fori, 316 ; lex fori adopted as rule in England, Scotland, Germany, Kussia, 
 America, and France, 326 ; law of contract countenanced by various 
 authorities in France, Germany, Russia, and Scotland, 324-25 ; will be 
 applied when obligation has become void according to it, if parties have 
 resided there during whole period, 325 ; this limitation alSOi rejected in 
 
741 
 
 England, 326 j law of creditor's domicile cannot rule, 320 ; law of debtor's 
 domicile justified by object of prescription, 320 ; this rule must be recog- 
 nised in all courts, 321 ; exception in case of foreign trader, 322 ; effect 
 of change of domicile during currency of prescriptive period, 322 ; or after 
 its elapse, 325, 326. 
 
 Action, ex lege diffamari and ex lege si contendat, 531, 532. 
 of damages for slander, '246. 
 
 Actor sequUur forum rei, 510 ; rule is observed in Germany, 534 ; infringed in 
 France, 535 ; and England, 640 ; disregard of rule will prevent recognition 
 in foreign countries of judgment pronounced, 588, 592. 
 
 Administration, rules as to grant of, in England and America, 449 ; right of, 
 determined in England, Scotland, and America according to law of 
 deceased's domicile, 461 ; same rule holds in France, 461. See Succes- 
 sion. 
 
 Admiralty, jurisdiction of English High Court of, 540, 547 ; criminal jurisdiction 
 of, 652, 660 ; documents from foreign courts of, require no authentication 
 in English court, 501 ; recognition of sentence of foreign court of, condemn- 
 ing ship as prize of war, 569. 
 
 Adoption, by what law ruled, 421. 
 of contract, 298. 
 
 Advocate, duties, rights, powers, and fees of, regulated by lex fori, 505. 
 
 Affreightment, contract of, 269. 
 
 Agent and principal, see Mandate, 
 
 Alien, disability of, in Eomau law, 10 ; in law of England and Scotland, 
 73. 
 
 Aliment, jurisdiction exercised in actions of, by courts having no jurisdiction to 
 divorce, 384, 385 ; personal presence of father and child in Scotland will 
 give jurisdiction to award, 430 ; jurisdiction to award, and extent of, 
 determined by law of place of residence, 387 ; right of wife and children to, 
 favourably regarded, 430 ; claim of bastard for, 425. 
 
 Allegiance demanded by residence in a country, combined with a right of residence 
 there, 92 ; must be exclusive, 93, 94 ; all subjects free to emigrate, and 
 so change, 95 ; due to State in which an emigrant is received, 95 ; to one 
 State cannot be thrown off unless another is adopted, 97. 
 
 Ambassador, see Envoy. 
 
 Amnesty, effect of foreign, 692. 
 
 Arbiter, deliverances and appointment of, how far respected, 583. 
 
 Aries, 331. 
 
 Army in foreign country subject to its own criminal law, 700 ; followers of, have no 
 such privilege, 700 ; rules for criminal jurisdiction over, in neutral territory, 
 700 ; failure to enter military service as ground for extradition, 724 ; 
 breach of military oath, 725. 
 
 Arrest of person is a good theoretical foundation for jurisdiction, but is now 
 limited, 519 ; not competent in execution of judgment unless authorised 
 by the law of the place where it is to be used, 593 ; writ of ne exeat 
 regno in England, 541 ; warrant against one m meditatione fugce in Scot- 
 land, 538. 
 
 Arrestment, use of, illustrates rule that lex rei sites is applicable in cases of real 
 rights in moveables, 226. 
 of right said to have been assigned, effect of, on debtor's position, 302. 
 to found jurisdiction sound in principle, but now limited, 519, 532 ; equiva- 
 lent for, in, Germany, 534; not adnaitted in France, 536; nor England, 
 
742 
 
 except in case of ships, 541 ; use and effect of, in Scotland, 538 ; judgment 
 following on, cannot be enforced in foreign country, 669, 592. 
 Arrestment on the dependence of suits raised in a, foreign country recognised in 
 France and Belgium, 536, 537 ; similar use of, in Scotland, 539. 
 in security in litigations with foreigners, 70. 
 bankruptcy as a sweeping, 594 et seq., 607-12. 
 
 Arrogation, what law regulates, 421. 
 
 Assignation, validity of, depends on lex domicilii of debtor as a general rule, 301 ; 
 but assignee may compel payment if assignation in conformity with law 
 that rules it as a separate transaction, 301 : debitor cessus free by paying in 
 bona fide to assignee duly vested, either by the law of the original obliga- 
 tion, or of the assignation itseK, 301 ; justification of this rule, 302 ; effect 
 of arrestment^n debtor's hand, 302, 303 ; questions as to right of assignee 
 to sue suo mommey determined by law of obligation assigned, 303 ; com- 
 petency of assignation determined in the same way, 304. 
 
 Assignee, right of action determined by law of obligation assigned, 303 ; Lex Anas- 
 tasiana does not affect right of, unless it is so enacted by law of the obliga- 
 tion assigned, 305. 
 
 Asylum, right of, 707, 708, 738 ; distinction between international and religious, 708. 
 
 Attorney, rights, liabilities, and fees of, determined by lex fori, 505 ; extent of man- 
 date may depend on law of domicile of mandant, 505. 
 
 AutJientica si qua mulier, 207, 208. 
 
 Authentication of documents which claim recognition on ground of puilica fides 
 can only take place in accordance with lex loci actus, 142, 143 ; procedure in, 
 500, 501 ; of certified copies necessary in England, 501 ; not necessary in 
 case of documents ofjforeign admiralty courts in England, 501. 
 
 Authority of parent, see Parent and Child. 
 
 Autonomy granted by pope or emperor, 23 ; inadequacy of, as basis of intema- 
 tionaJ law, 54. 
 
 Autm'isation, mantale, 201. 
 
 Banishment, distinction of, from extradition, 708, 711. 
 
 Bankruptcy, effect of, distinguished from interdiction of prodigal, 205 ; does not 
 destroy legal capacity of bankrupt, 594. 
 
 discharge of obligations by, ruled by lex domicilii of debtor, 307 ; English and 
 American lawyers hold this to be regulated by the law of the contract, 
 312; this view refuted, 312; one law must regulate aU obligations, 313 ; 
 in partial bankruptcy, all obligations belonging to it discharged by the law 
 of the sequestration, 314; no doubt of principle where creditors have lodged 
 claims, 313, 315. 
 
 procedure in, equivalent to a general execution of diligence, 594 ; rights of 
 creditors against each other, 594 ; operation of diligence confined to terri- 
 tory of sequestration, 695; theory of universal operation of, 602; this 
 theory refuted, 602 et seq. ; by law of England and Scotland, one seques- 
 tration attaches all moveables, 608 ; same principle recognised in Italy and 
 Belgium, 610; opposite rule adopted in Austria, 609; and in France, 
 where a foreign sequestration must receive an exequatw, 611 ; foreign 
 sequestration does not attach moveables in Germany, 609. " 
 
 but separate sequestrations not competent unless there are two or more 
 separate aggregates of property, 596 ; othervrise foreign judge must give 
 effect to foreign sequestration, 696 ; jurisdiction to award sequestration 
 claimed in England, 606; in Scotland, Germany, Belgium, andFraflce, 607 ; 
 
743 
 
 a creditor may appear in several sequestrations and claim, 599 ; rules for 
 such appearances, 599, 600. 
 Bankruptcy, right of secured creditors will be determined by judex rei sitce, if they 
 object to transference of sequestration, 697 i such creditors entitled to 
 appeal to lex rei sitce, 597. 
 ranking, is determined by lex fori, except in so far as it depends on security 
 rights, in which case the same law as would rule in case of pledge will 
 prevail, 698. 
 foreign creditors may claim in a sequestration, 698 ; but only in so far as 
 
 their claim is not satisfied otherwise, 599. 
 rejection of claim, effect of, 699. 
 
 right to challenge deeds granted prior to bankruptcy, depends either on the 
 law of the thing affected, or the law of the domicile of the party to whom 
 the deed was granted, 600 ; but claims of reduction or restitution are 
 limited by the lex fori of the sequestration, 601. 
 Barbarous countries, contracts concluded in, 491 ; marriage in, 371 ; crimes com- 
 mitted in, 651, 662. 
 Barbarous punishment will justify refusal of extradition, 715. 
 Bastard, nationality and domicile of, 99, 113, 115 ; claim of, for aliment, 425. 
 
 See Legitimation. 
 Beneficium competentim, right of debtor to, depends on law of claim against which 
 
 it is pleaded, 309, 314. 
 Beneficium divisionis, excussionis, ruled by lex domicilii of each debtor, 290, 334. 
 Beneficium cfdendarum actionum, 334. 
 Betrothal, 411. 
 Biems propres, 479. 
 
 Bigamy punished by the law of England even when committed abroad, 627 ; 
 foreigners who have committed bigamy abroad may be punished as adulterers 
 on coming to Belgium, 647. 
 Bill, nature and objects of, 339. 
 
 capacity to incur obligations by, by what law determined, 210. 
 
 domicUe of debtor held to be as stated on face of, 340 ; exceptions to this 
 
 rule, 341. 
 
 form of, and of transmissions regulated by lex loci jictus, 342, 344 ; so in law 
 
 of France, Germany, Switzerland, England, and Scotland, 356 ; obligations of 
 
 drawer, drawee, acceptor, and indorser, are quite distinct and dependent 
 
 each on its own law, 343, 344 ; opposite theory held in Scotland, 355 ; form 
 
 of bill drawn abroad by a native of this country, 344 ; blank indorsation, 
 
 in what countries recognised, 356. 
 
 amount due under, and period of grace determined by lex loci solutioms, 345, 
 
 354 ; conditions of recourse by law of place of indorsation or of bUl, 346, 
 
 365 ; rule in Germany, 356 ; not by law of place of payment, 347 ; but in 
 
 England and Scotland, law of place of payment rules, 354, 366 ; protest 
 
 ruled by the law of place of payment, 348 ; same rule in England, 354 ; 
 
 France and Kussia, 356 ; conditions of protest, 348, 349 ; no recourse if 
 
 the holder has culpably failed to establish his right of recourse against other 
 
 obligants, 349. 
 
 interest on, determined by law of obligant's domicile, 360 ; in England and 
 
 Scotland by law of place of payment, 364 ; prescription determined by law 
 
 of obligant's domicile, 351. 
 
 declarator of discharge must be in accordance with law of each obligant, 
 
 !. unless I the acceptor is declared free, 352; competency of special action 
 
744 
 
 and diligence dependent on law of place of obligation, and of forwm or place 
 of execution, 352 ; proof of foreign law must be immediate, 353 ; French 
 courts decline to adjudicate between foreigners on bills drawn in France, 
 357. 
 
 Blood money determined according to status of person killed, 20. 
 
 Bona fides, fundamental principle in the law of contracts, 268, 269, 274 ; applica- 
 tion of, to sales at markets, 268 ; or foreign trading establishments, foreign 
 railways, &c., 269 ; determined ihefomm contractus in Roman law, 524. 
 
 Bondagers in later Middle Ages, 23 ; law regulating, 191. 
 
 Books, business, authority of, as evidence generally regulated by lex fori, 553 ; or 
 by lex loci contractus, if that law gives them greater weight, 554 j extracts 
 from, 553. 
 of court, authentication of extracts from, 501 . 
 
 Burghal communities, autonomy of, 23. 
 
 Caduciary rights, by what law determined, 485, 486. 
 Canon law lays down no principles for international law, 26, 620. 
 Capacity to contract, object of laws affecting, 65, 66 ; what law rules, 66 ; of foreign- 
 ers and natives alike recognised, 69 ; capacity to acquire by occupation, 72 ; 
 true definition of legal capacity and incapacity, 162 ; rules of, in strict 
 sense are not so widely recognised as incapacities for particular acts, 162 ; 
 different theories as to proper determinant of legal capacity, 163 et seq, j 
 lex domicilii supported on various grounds, 163, 166 ; adopted by Savigny, 
 167 ; lex rei sitce, 165 ; this will determine capacity to acquire real 
 property, 177, 237 ; capacity and incapacity are legal categories, not 
 natural facts, 165 ; lex fori as determinant, 170 ; legal status requires both 
 capacity to have rights, and capacity to dispose of estate, 171, 172 ; prohibi- 
 tion of particular acts does not trench upon capaciby to act in strict sense, 
 173 ; illustration of, 174 ; capacity to act does not necessarily include testa- 
 mentary capacity, 174 ; true and apparent incapacity to act, as a rule, 
 coincide with general and special incapacity, 176 ; capacity to have rights 
 not determined by law of domicile, 176 ; but by law of place where person 
 was at time of transaction in question, 178 ; reasons for this rule, 177 ; 
 customary law determines capacity to act by law of domicile, 179, 237 ; and 
 also incapacity, 180; this contrary to sound principle, 179 ; origin of custom- 
 ary law, 180, 181; this law adopted by legislation, 182; certain restrictions 
 upon the universal application of the law refuted, 188, 189. See also Minor, 
 Prodigal, Guardian, and Ward. 
 
 to incur obligations by bills, 210. 
 
 of married women ruled by lex domicilii, 396 ; in Scotland by lex lod con- 
 tractus, In America depends on circumstances of case, 396. 
 
 of bankrupt not destroyed by sequestration, 594. 
 
 to sue, 502, 503. 
 
 to test, not necessarily dependent on law regulating general capacity to act, 
 174. 
 
 determined by law which regulates succession otherwise, 464. 
 
 to take inheritance determined by lex rei sitce or domicilii of the deceased, 
 according as the one or the other rules the succession, 460. 
 
 of women to become surety, 207, 208, 334. 
 
 incapacity of students and subaltern ofBcers to bind themselves by documents 
 of debt, 333. 
 Cartel, for surrender of deserters, &c., 725. 
 
745 
 
 Caution, for expenses of action, 70, 504, 505 ; rules as to, in England, Scotland, 
 Germany, and France, 506, 507, may be required from foreign pursuer 
 entitled to rights of extra-territoriality, 614. 
 bond of caution to some extent dependent on import of principal contract, 334 ; 
 but not to all effects, 334 ; capacity of women to be cautioners, 207, 208, 
 334. See Senatus OonsuUum Velleianum. 
 dejudicio sisti to be found by one detained on a Soots warrant as m meditatione 
 fugce, 538. 
 
 Challenge of contracts, by what law determined, 331. 
 
 Child, see Parent and Child, Bastard, Aliment, and Legitimation. 
 
 Church, rights of foreign, 156 ; churchmen, see Disabilities. 
 
 Citation, service of, in foreign jurisdiction, 558 ; effect of disobedience to, 568 ; 
 service of, in England, 540. 
 regular citation necessary to entitle judgment following thereon to recognition 
 abroad, 587 et seq. ; in Germany and Belgium, 587 ; in Italy, 588 ; in 
 England, 592. 
 no prejudice can be done to accused by permitting, 704. 
 
 Citizenship, Roman right of, 12, 84 ; import of, 85 ; of municipal community 
 denoted by origo, 81 ; importance of citizenship in any municipality lost by 
 the time of Justinian, 86 ; citizenship or nationality is the proper criterion 
 of personal law, 98, 99 ; of children depends on that of parents, 99. 
 
 Coast, law as to three mile limit, 486 ; in criminal matters, 661, 701. 
 
 Codicil, see Will. 
 
 Coinage, see Money. 
 
 Coining, crime of, in France, 633 ; punishable if committed by subject abroad, 
 although no crime in country where committed, 664, 716, 717. 
 
 Collation, obligation of, depends on law applicable to the succession, 482 j move- 
 ables in France may be attached to satisfy the claims of French co-heirs 
 which the foreign law of succession would not regard, 480. 
 
 Collision, English High Court of Admiralty claims jurisdiction in all cases of, 540, 
 547. 
 between ships of different nationalities, how incidence of the loss is deter- 
 mined, 489, 490. 
 
 Comitas, used to explain exceptions from statute theory, 28 ; adopted as ftmda- 
 mental principle by Fcelix, 44, and Wheaton, 46 ; condemned by Schaffner, 
 50 ; inadequacy of, as principle, 62 ; recognition of the law of the domicile 
 as regulating personal law referred by some authorities to, 166 ; adopted by 
 some as a ground for the recognition of foreign judgments, 562-64 ; falsity 
 of this theory, 564. 
 
 Oommercium, 10. 
 
 Commission to take evidence, authority of, and regulations for, in foreign coun- 
 try, 561. 
 
 Oommodum rm, questions as to, determined by the law of the obligation, 300. 
 
 Company, international law as to, 154 et seq. ; in England, 156 ; constitution of, 
 dependent on the law of its domicile, powers by that of State where they 
 are sought to be exercised, 155, 156 ; unless powers expressly restricted to 
 native companies, 156 ; conventions as to, between England and foreign 
 countries, 157 ; rights of foreign, in Germany, 168 ; in France, 168, 159 ; dis- 
 tinction between relation of to shareholders of its own and to public in 
 France and Italy, 159, 160 ; jurisdiction of courts over, in England and Scot- 
 land, 160 ; jurisdiction over, for sequestration in England, 606 ; in Scotland,- 
 Germany, and France, 607. 
 
7*6 
 
 Compensation, competency of plea, of, determined either by lex fori or by the law 
 
 of the contract against which it is pleaded, 309. 
 Competency, see Jurisdiction. 
 
 Composition for death computed according to status of person killed, 20. 
 Compulsitor, see Diligence. 
 Condictio indebiti, 361. 
 
 Conditions, effect of, in contracts, by what law determined, 331. 
 Confiscation in conformity with lex rei sitce must be recognised, 239 ; but if con- 
 trary to principles of international, is not recognised, 311. 
 sentence of, does not extend to property situated abroad. 
 Conflict of law, too narrow a title for the subject, 7, 8. 
 
 Consuetudinary law, effect of, in modifying logical deductions from principle, 65 ; 
 is explanation of the rule l-ocus regit actum, 128 ; application of law of 
 domicile to determine capacity and incapacity introduced by, 180. 
 Consuls, do not as a rule enjoy privilege of extra-territoriality, 487; criminal 
 jurisdiction of, in Eastern countries, 629 ; not recognised as jurisdiction of 
 a foreign sovereign, 695 ; houses of, treated as asylums in East, 738. 
 Contraband, question whether laws of foreign States as to contraband transactions 
 
 will be recognised by other countries, 276. 
 Contract, interpretation of in general, 329 ; interpretation of language of, 330 ; as 
 to form of, see locus regit actum. 
 concluded by letter, valid only if in conformity with the laws of both domi- 
 ciles, 147, 295 ; in England, if valid by law of domicile of recipient, 147. 
 of sale, 331. 
 place of, determines fact and import of minority in America, 188 ; same law 
 
 in England according to some authorities, 188. 
 of marriage, see Marriage, 
 of copartnery, see Company. 
 see also Obligation. 
 Convictions, previous effect of, in foreign country, 696. 
 Copyright, 362, 363. 
 Corporation, see Person, Legal. 
 
 Court, will regulate all questions of procedure by its own law, 503, 549 ; will 
 never apply foreign law so as to infringe the notion of ioni mores held by 
 its own law, 274, 281. See Judge, Judgment, Jurisdiction, Expenses. 
 Crime, attempted, 679. 
 
 nature of, determined by law of place where act done in view of English law, 
 636, 639 ; sound principle, 662 ; except in cases of treason, coining, &c., 
 664. 
 committed on board ship, 669, 660 ; on foreigner there, 660, 661. 
 distinction between, and police offence, 675, 676. 
 continuous crime, 677 et seq^. ; view of, in Germany, Scotland, and France, 
 
 682, 683. 
 previous convictions of, 696. 
 poaching, 676, 705. 
 
 murder and bigamy by British subjects, 627. 
 Criminal law, connection of, with morality, 642-46. 
 
 no recognition of foreign, by Eoman law, 16 ; or by Canon law, 620 ; theory 
 of, in Middle Ages, based on jus commune, 620 j sphere of forum delicti 
 commissi and domicilii, 621 ; forum deprehensionis, 623. 
 rule of locus delicti alone undisputed, 625. 
 theory of limitation of, to territory, 626 et seq. ; exception to rule, 627 ; right 
 
747 
 
 of state to punish its subjects everywhere, 630, 653 ; independently of 
 nationality of injured person, 632, 653, 660 ; illustration of right to do so- 
 from the case of crimes on board ship and in ambassador's house, 651, 659. 
 Criminal law, right to punish all injuries to State or its subjects, 634. 
 
 theory that State should punish all crimes, 635 ; Germany does not punish 
 crimes committed abroad by foreigner, 639, 648, 649 ; view of English law as to 
 
 criminality of acts, 636, 639. 
 Ortolan's theory, 640. 
 true theory of, 641 et seq. ; all persons present in any country are subject to 
 
 its criminal law, 647. 
 of domicile applicable to cases where locus delicti has no trustworthy criminal 
 
 law, 651, 652. 
 law to be applied is always law of court punishing, 673 ; unless law of plaoei 
 
 of deed takes a more lenient view, 673, 674. 
 judgments of foreign orinainal courts are not put into execution, 704, 705. 
 Culpa of debtor does not affect locus of obligation, except as regards the amount of 
 
 compensation, 300. 
 Cura absentis, propriety of order by court, 152 ; exercise of, in case of incapacity 
 
 of foreigners with rights in this country, 178. 
 Curator, see Guardian. 
 Curatory of Husband, see Marriage. 
 
 Damages, caused by mora in debtor, how determined, 289, 290, 300 ; obligation for, 
 arising out of a delict, 272 ; may be claimed in foro delicti commissi, 518 } 
 although defender not personally cited or possessed of property there, 531 j 
 claim for damages for breach of contract within England gives English courts 
 jurisdiction, 540 ; distinction between claim for damages and for penalties, 
 272, 361, 575 ; action of, for slander, 246. 
 how far judgment of foreign court awarding subject to revision, 575. 
 for seduction, 249. 
 Death, civil, operation of sentence of, pronounced in foreign countiy, 177, 178 J 
 not recognised except under conditions required for such incapacity in that 
 country, 192, 461. 
 Dediticii, 13 ; belonged to municipalities as citizens in passive sense, 83. 
 Delicts, question whether claim following on, is a claim of damages, or a penal 
 action determined by lex fori, 361, 575. 
 obligations of reparation arising out of, are regulated by the law of the place 
 
 of the act, 272, 360, 616, 531 ; not the lex fori, 360, 361. 
 penalty attaching to, regulated by lex fori, 273, 361. 
 in action for damages upon delict, how far judgment of foreign court subject 
 
 to revision, 575. 
 jurisdiction in obligations arising out of, is in courts of locus delicti, 518. 
 Delicta juris gentitim, meaning of term and treatment of, by criminal international 
 
 law, 636. 
 Delivery, action for, limitations applicable to, when raised in foro domicilii, 244 j 
 
 effect of, 516. 
 Deserters, 725. 
 
 Diligence, summary diligence, how carried out, 612 ; must proceed in accordance 
 
 with the law of the place where it is used, 496, 593 ; exception to this rule, 693. 
 
 what special diligence is competent upon bills, 352, 353. 
 
 Disability, of foreigners in ancient times, 9 ; by Koman law, 10 ; in Middle Ages, 
 
 ; 17 ; to sue other foreigners in France, 609, 635 ; of aliens in England and 
 
748 
 
 Scotland, 73 ; by reason of religion not recognised abroad, 194 ; to inherit 
 by reason of religious orders, 192,193, 460, 461. 
 Disability, by reason of sex, question what law shall rule depends on nature of dis- 
 ability, 200 ; to undertake suretyship, 207. 
 
 by reason of age, see Minority. 
 
 by reason of marriage in Scotland determined by lex loci contractus, in Eng- 
 land probably by domicile, 202 ; in America, 202. 
 
 by reason of bankruptcy, 594. 
 
 of holding land, all foreigners under this by Boman law, 10 ; law of England 
 and Scotland, 73. 
 
 of children to contract loans, 208. 
 
 of incurring obligations by bill, 210. 
 Discharge of all obligations due to foreigners will not be recognised, 311 ; of obli- 
 gations by the operation of a sequestration, 311. 
 
 declarator of, in questions as to obligations by biU, 352. 
 
 see Obligation. 
 Dispensation in the case of an impediment to marriage, 366. 
 Divorce and nullity of marriage subject to the law of the spouses' domicile, 373 ; 
 this is identical with lex fori, 373 ; domicUe is as at the date of the action, 
 375 ; if husband abandons his domicile the wife is entitled to divorce by 
 that law, if she remains behind, 376 ; doctrine of matrimonial domicile in 
 Scotland, England, and elsewhere, 381-83. 
 
 effect of, on capacity to re-marry, 377 ; consequences of, by what law deter- 
 mined, 409. 
 
 divorce in foreign country recognised if grounds of jurisdiction and judgment 
 such as it is in habit of sustaining for itself, 378, 379 ; jurisdiction ratione 
 delicti, and on ground of personal service coupled with residence for forty 
 days, is now abandoned in Scotland, 380. 
 Documents, obligations to deliver, ruled by the law of the place of domicile, 244 ; 
 in procedure for giving information to a foreign court, obligation on litigants 
 to give up, 557 ; on third parties, 557. 
 
 puilica fides, attaching to official documents, 500, 702 ; how these are 
 authenticated, 500, 501; certified copies of, whether equivalent to originals, 
 501 ; English rule, 502 ; execution following on public, 613. 
 Dolus, see Fraud. 
 
 Domicile, in Roman law, depends on fact and animus, 84 ; exception, 84 ; cases 
 of plurality of, or want of, 85 ; effect of, 80 ; does not determine personal 
 law, 86, 88, 89 ; gives no rule for determination of personal rights in 
 countries where adopted, 89 ; still regulates jurisdiction and transactions 
 which parties are at liberty to regulate for themselves, 109. 
 
 in modern times questions of status and capacity regulated by, according to 
 Schaffner, 50 ; according to laws of Prussia, Austria, America, England, 
 and Scotland, 110 ; inadequate as general principle of international law, 
 62 ; actual domicile said to subject the person permanently to this or that 
 law, 80 ; insufficient without right to be so domiciled, 90 ; these two, 
 actual residence and right of residence combined, will regulate personal 
 law, 90, 94; such domicile is necessarily exclusive, 95, 99; necessarily be- 
 longs to every individual, 97, 99 ; subsists till new one acquired, 97 ; 
 statutes based on ordinary definition of domicile may, for the most part, 
 be reconciled with this definition, 98 ; but in different provinces of the 
 same kingdom domicile, in the meaning of the Roman law, is the determin- 
 ant, 108 ; BO, too, in questions as to jurisdiction and obligation, 109. 
 
749 
 
 Domicile of succession may be constituted merely by long residence, 113. 
 law of, determines capacity to marry, 365. 
 
 wiU give jurisdiction for divorce, 373, 378, 380 ; what is sufficient domicile 
 for this purpose ? 381 ; acquisition of, implies to voluntary subjection of 
 personal questions to that jurisdiction, 517. 
 voluntarily acquired wiU give jurisdiction in all matters, which person is free 
 
 to regulate, 517. 
 does civil or military employment by foreign government change ? 105, 106. 
 to acquire new domicile, acquisition must be according to the law of the new 
 domicile, 106, 107; must be permanent to affect personal rights, 107; 
 change of, does not affect form of obligations, 149, 150 ; may invalidate 
 testaments, 149; cannot validate defective testaments, 150; does not affect 
 contracts as to succession, 150 ; change of, may alter status of majority, 
 198 ; Savigny's view, effect of change on prescription of right of action, 
 322, 325, 326. 
 law of, does not rule in questions as to capacity to have rights, 176 ; reasons 
 for this rule, 177 ; law of domicile giving capacity recognised everywhere, 
 179 ; denying capacity strictly should not be recognised, 179 ; but is so by 
 force of custom, 1 80 ; origin of this custom, 180, 181; legislative adoption of 
 this rule of custom, 182 ; arguments against it in England and America, 
 182 ; certain restrictions inapplicable, 188, 189. 
 law of, will determine fact and import of minority in Scotland, 186 ; in France, 
 Belgium, Germany, 1 87 ; probably in England, 188 ; change of, may alter 
 status of majority, 198. 
 law of, in criminal matters, 653, 662 ; forum, of,m such matters, 671, 672. 
 DcmdcUium originis, adopted ex necessitate to regulate personal rights and status, 
 
 90 ; presumption in favour of, 97 ; when person in itinere, 97. 
 Domus mortuaria, 482. 
 
 Donation, 334 ; transference of real rights by, 335 ; obligation to make, 335 ; 
 recall of, 335|; limitations on capacity to make, 336. 
 between spouses ruled by law of domicile at date of donation, 404. 
 distinction of prohibition of such donations from prohibitions in favour of heirs, 
 404. 
 Dotcdidutn, 393. 
 Dowry, 393, &c Marriage. 
 
 Droits civils et naturels, 70 ; right of guardianship said to belong to droits civils, 
 369 ; right to require foreigners to find caution in an action belongs to, 
 504. 
 
 Emancipation, 421. 
 
 Emigration, free right of, 91, 95, 107 ; effect of, on personal rights, 94 ; effect of, 
 on rights of children, 101 ; or of wife, 103, 376. 
 
 Enquiry by court of one country for courts of another, rules for, 554 et seq. 
 
 Entail, real rights in, regulated by lex rei sitw, 258 ; law of, justifies application 
 of lex rei sitce to regulate law of succession, 453. 
 
 Envoy, privileges of foreign, 487, 492, 493 ; do not affect private legal relations, 
 487 • rules of forum, rd sitm, and arresti not affected by, 493, 614 ; if pur- 
 suer is under ordinary liabilities, 614 ; cannot be sued in public character, 
 616 • secretary of, may waive his privileges, 618 ; Erench cases of military 
 attacks and plenipotentiary, 617 ; envoy's house is no asylum, 738. See Extrar 
 territoriality. 
 
 Eviction, by what law ruled, 332. 
 
750 
 
 Evidence, obligation to give, ruled by law of place of residence, 556, 703 ; com- 
 petency of particular kind of, 560 ; value of business books as, 553, 554. 
 rules of, determined generally by lex fori, 549. See Proof, and Witness. 
 Sxcepth non numeratcE pecuniae, competency of, by what law determined, 388, 554. 
 Exchange, law applicable to contracts concluded on, 268. 
 
 right to appear on, how affected by foreign bankruptcy, 595. 
 rate of, how this affects payments, 284. 
 ^Execution of foreign judgments, distinction between recognition of, and execution 
 of, 566 ; where jurisdiction is founded by arrestment, will not be allowed, 
 569, 592. 
 when execution refused, appeal competent, 583 ; when execution has been 
 
 done in one country, no redress can be had in another, 571. 
 provisional or conditional judgipents may receive Same effect as they would 
 
 in their own country, 578* 
 mode of, and limitations upon, 593. See Judgment, foreign, 
 no execution of sentences of foreign courts in criminal matters, 704, 705. 
 Expenses of action, liability for, ruled by lex fori, 503 ; foreign envoy liable for, 
 if pursuer of the action, 614. 
 caution for, 70 ; ruled by lex fori, 503-05 ; rule in England, Scotland, Ger- 
 many, and France, 506, 607. 
 of extradition, 713. 
 of witnesses, 557. 
 -Experts, opinion of, 556. 
 
 Expulsion, distinction of, from extradition, 708, 711. 
 Extinction of obligations, see Obligation. 
 Extract of judgment, 501. 
 Extradition, under Roman law, 17. 
 
 no right of extradition in Middle Ages, 623. 
 
 treaties of, in Middle Ages, on condition of reciprocity, 625. 
 
 .will not be granted where crimg prescribed, 685, 714, 715 ; or where barbarous 
 
 punishment wiU be imposed, 715. 
 ,orJgin of, 708, 709. 
 
 .theories as to proper scope of obligation of, 709. 
 distinction of, from banishment, 708, 711. 
 -obligation of, is an imperfect obligation, 711, 712. 
 
 ;rule of, where several States demand, 713, 714 ; only competent where act is 
 a crime by law of both States, 714 ; and is a serious crime, 716 ; and 
 recognised by all States, 717, 718. 
 itreaty of, between France and Prussia, 716, 717. 
 
 for political offences, definition of term, 718 ; not generally granted, 720, 
 722 ; exception in cases of confederate Governments, 721 ; or general plan 
 of revolution, 723 ; from England, 731. 
 of persons for failure in military duties, 724, 725. 
 
 j)erson surrendered cannot be punished for other crimes, 726, 733, 734. 
 .not competent when court has itself jurisdiction, 
 .under diplomatic superintendence, 735. 
 method of, 736. 
 expense of, 713, 736. 
 importance of treaties of, 737. 
 Extra-territoriaUty, 487, 613, 616, 698, 699 j does not affect private legal relations, 
 487 ! nor jurisdiction of the fornm rei sitce or arresti, 614 ; nor obligations 
 incumbent on foreigner as pursuer, 614 ; may be waived by secretary of 
 
751 
 
 legation, 618 ; places those entitled to it under criminal law of their 
 domicile, 651, 698 ; no asylum in ambassador's house, 738. 
 
 Fair, see Market. 
 
 Family, law of, regulated by law of the domicile, 67. See Parent and Child, Minor, 
 
 Marriage, Nationality. 
 Feu, Autonomy granted to feudal superior, 23. 
 feudal holdings regulated by lex rei sites, 258. 
 right of superior to curatory of minor vassal, 437. 
 feudal law affects questions of legitimation, 419, 420. 
 Finder, right of, determined by the Ux rei sitae, 238. 
 Fisk, see Kevenue. 
 
 Form, see Locus regit actum, Marriage, Real Rights, Will. 
 
 Fori, Lex, inadequate as foundation of international law, 54, 55, 63 ; applied so as 
 to deny eflEect to obligations which it holds to be contra tones mores, 274, 
 does not determine whether contract can be sued on, unless it is contra lonos 
 mores, 281 ; application of, in regulation of procedure, 502 et seq. ; regulates 
 procedure, 549 ; determines admissibility and credibility of witnesses, 552. 
 Porum arresti, 519, 532 ; not admitted in France, 536 ; in England or in the case 
 of ships, 541 ; in Scotland, 538 ; not excluded by a plea of extra-terri- 
 toriality, 494, 614. 
 Forum contractus, wide scope of, in modern time's, 521 ; does not exist at the place 
 of the inception of the obligation, 522 ; place of performance does not in 
 every case give rise to, 522 ; Roman law on this subject, 523 et seq. ; place 
 of performance will not .constitute, unless the debtor is personally present, 
 or has property at that place, 629, 530 ; except in case of obligations ex 
 deUctis, 531; or where debtor has in a liquid document of debt undertaken to 
 pay at some place certain, 531 ; rule as to, in Germany, 535 ; in Belgium, 
 537 ; in Scotland, 538 ; in England, 540 ; in certain circmnstances not 
 barred by plea of extra-territoriality, 614. 
 Forum delicti commissi, rule of English criminal law, 4, 639, 652 ; and of Scotch 
 law, 4 ; not now a forv/m for divorce, 380. 
 rule of criminal law in Rome, 16, 623. 
 
 how justified, 518 ; principle of bonafid.es not applicable in, 531. 
 general recognition of, in modern ciminal law, 620, 625 ; is it exclusive in 
 criminal law ? 626 et seq. 
 Forum deprehensionis, set up by German lawyers of sixteenth aud seventeenth 
 centuries, 623 ; fully recognised then, 624 ; inadmissible on principle, 636 ; 
 in England, 637. 
 Forum domicilii, exclusive in question of status and family law, 616 ; applicable to 
 all legal relations at disposal of individual, 517 ; rule of, in Germany, 534 ; 
 in Belgium, 537 ; in Scotland, 537 ; in criminal law, 653, 671, 672 ; in 
 case of crimes not recognised in foreign countries where committed, 661. 
 Forum gestce administrationis, 524, 525. 
 Farvm, nrni conveniens, 512, 548. 
 Forum originis, application of, in Roman law, 85. 
 Forum reconventionis, not admissible in principle, 533. 
 Forum rd sitce, not excluded by the fact that the right of property is in a foreign 
 
 sovereign, 493, 614 ; where competent, 516, 521, 534, 538, 529-40. 
 Fraud upon the law, wherein it consists, 138 ; does not arise in questions of the 
 application of the rule locus regit actum, 369, 469 ; application of term in 
 case of the evasion of usury laws, 288. 
 
752 
 
 !Fraiud, person of limited capacity cannot protect himself by his own fraud, 185. 
 of debtor does not alter locus of obligation, except as regards amount of com- 
 pensation, 300. 
 Freight, see Afireightment. 
 Fruits, right to enjoy, 242, 300. 
 Fundus dotalis, 397, 398. 
 Fundus hostium, 491. 
 
 Game laws, 272 ; infringement of, 676, 705. 
 Garde Noble, 437. 
 Government, see Sovereign. 
 Grace, days of, see Bill. 
 
 Guardian and ward, by what law relations of, determined, 431 ; conflicting views as 
 to these relations, 432 et seq. ; modem view regards interest of bond alone, 437, 
 441 ; lex domicilii true principle for determining appointment and regulating 
 relations, 437, 438 ; England and America maintain their right to appoint 
 guardians to all within their territory, 443, 444 ; in case of real property 
 appointment and administration regulated by lex rei sites, 444 ; law of 
 Scotland in case of Scottish heritage, 444. 
 alienation of property by guardian dependent on law of domicile, 439. 
 obligation to become guardian ruled by law of guardian's domicile, 359 ; 
 foreigner may be appointed, 359 ; such an appointment inexpedient, 360 ; 
 court in Scotland will not appoint foreigner, 359 ; feudal superior's right 
 to be appointed, 437 ; now in disuetude, 438. 
 responsibility of guardian, by what law ruled,. 358, 359. 
 
 consent of guardian in strictness necessary for legitimation, but not required 
 in practice, 100 ; domicile may be changed, vrith consent of guardian, 104 ; 
 cannot by French law, 113. 
 guardian to insane, 440. 
 
 SabUitas, 463. 
 
 Heir, of creditor or debtor in an obligation, not bound by obligation, or 
 
 entitled to it, unless the law of obligation and law regulating succession 
 
 concur to this effect, 328 ; prohibitions of donation in favour of, 404 ; 
 
 rights where no heirs, by what law determined, 485, 486. See Succession, 
 
 Collation, Legitim. 
 Heredes legitimi, see Legitim. 
 
 Heritable and moveable, what law shall determine character of right, 234, 235, 460. 
 Heritable bonds, rule of, as regards succession, 459. 
 Hiring, see Lease. 
 Hypothec, see Pledge. 
 
 Immoral contracts cannot be set up, although allowed by foreign courts, 124 ; but 
 consequences flowing from, must, 124 ; judge cannot recognise contracts 
 pronounced immoral, by lex fori, 274. 
 
 Incapacity, see Capacity. 
 
 Incestus juris gentium, 366. 
 
 Increase, right to, 242, 300. 
 
 Indorsation, see Bill. 
 
 Infamy, sentence of, not recognised without examination of grounds, 193, 706; 
 provisions as to recognition in Germany, Italy, and France, 706, 707. 
 
 Information, demand for, by foreign court, 554 ct seq. ; procedure is regulated by 
 
753 
 
 law of country where it takes place, 555 ; process unknown in England, 
 Scotland, or America, 560. 
 
 Information in criminal matters, rules for procedure in, 703. 
 
 In frmidem, legis, the true meaning of term, 138 ; does not apply in questions as to 
 the rule locus regit actum, 369 ; application of, to evasion of usury laws, 288. 
 
 Instrument, under seal, 328. 
 
 Insurance, right of relief in double policies, 290 ; law applicable to policies of, 291. 
 
 Interdiction by court of domicile should be universally recognised, 202 ; not so 
 in Scotland without intimation, 206 ; distinguished from bankrupt's seques- 
 tration, 205. 
 
 Interest on obligations, by what law regulated, 267, 286 ; statutory interest, penal 
 interest, interest due by mandatary, how regulated, 286 ; usurious, 287 et 
 seq. ; interest on account of delay in payment determined by te loci solu- 
 tionis, 289 ; on advances made by agent, 297 ; on bills, 350. 
 
 International law, principles of, recognised by civilised nations, 3 ; private, dis- 
 tinguished from public,4 ; includes criminal law,4 ; definition of private, 7; dis- 
 tinguish ed from jasjreniium, 7, 10 ; inEomaulaw, 12 ; not known in earlier 
 Middle Ages, 21 ; statute theory of, in later Middle Ages, 22 ; unknown 
 to Canon law, 26 ; statute theory inadequate as a principle for, 32 ; 
 different theories of, in modem times, 44 ei seq. ; founded on comitas \>y 
 Foelix, 44 ; and by Wheaton, 46 ; on legal instincts, by Burge, 47 ; theory 
 of Story, 47, 48 ; of Schaffner, 50 ; inadequacy of domicile to determine all 
 questions of, 52 ; and of principle of nationality, 53 ; or of theory of 
 vested rights, 53 ; or of autonomy, 64 ; or of lex, fori, 64, 55, 63 ; Savigny's 
 principle, 58 ; rules of, arise ex dehito justitice, 59 ; do not depend on 
 comitas, 62. 
 neither Koman nor Canon law afford rules for criminal, 620. 
 Interpretation of contracts, 329 ; of language of, 330. 
 
 Interpretation of statutes with a view to determine their character as personal or 
 
 real, 25, 30, 31 ; or as odioso ot favo^-ahUia, 30. 
 Interruption, see Prescription. 
 Intestacy, see Succession. 
 Invention, how far protected in foreign countries, 363. 
 
 Joint obligation, by what law amount and incidence of liability fixed, 290, 291. 
 judge must apply express instructions of legislature, 61, 703 ; where no 
 express instructions, must ascertain his intentions, 62. See Fori lex. 
 Judgment, Executor, &c. 
 
 Judgment foreign, recognition of, arose in Koman Empire and continued so long 
 as the supremacy of the Pope and Emperor was admitted, 661, 562 ; various 
 grounds assigned for recognition of, 562, 563 ; true theory of, 564 ; Trench 
 practice as to recognition, 564, 565, 589; Spanish, 565 ; rules for, in Germany, 
 587 ; in Belgium, 587 ; in Italy, 588 ; in Denmark, 589 ; in Scotland, 
 590, 591 ; in England and America, 692 ; absurdity of refusing recognition 
 to, 571, 572 ; question of public law whether recognition shall be refused to 
 judgments of this or that State, 581 ; recognised as founding plea of res 
 judicata, 586 ; in Scotland, 591 ; in America and England, 692. 
 judge must be competent as a condition of recognition, 567 ; court of country 
 where judgment is pleaded will determine the competency of the court 
 which pronounced it, 575 ; error in law is no ground for not recognising, 
 578, 585 ; not recognised if contra bonos mores or not susceptible of being 
 carried out, 514. 
 
 3 C 
 
754 
 
 Judgm ent,notreoognisedunlessdefender had duenotice, 585; and procedure sccwmdam 
 bonam fidem, 585 ; general rules or recognition of foreign jurisdiction, 586. 
 
 distinction between recognition of, and execution of, 566. 
 
 no recognition of foreign judgments in penal actions, 574. 
 
 value of judgments pronounced in one province in another province of the 
 same country, 580. 
 Judgments Extension Act (31 & 32 Vict. c. 54), 569, 592. 
 
 Jurisdiction, in actions of divorce and the like generally determined by domicile 
 exclusively, 373 ; what domicile sufficient, 379, 380 ; in Germany, 386 ; 
 ratione delicti commissi now abandoned in Scotland, 375, 380. 
 
 in actions of separation and aliment founded by residence for short period, 
 385. 
 
 inactionsupon contiAot-p&TtlyiDJudexdomiciliipaxtlyinjudex lodcontractus, 516. 
 
 comparison of Koman legal principles with this rule, 523 ; place of performance 
 does not necessarily determine jurisdiction, 522 ; presence of debtor or of 
 debtor's property at that place must coincide, 529, 530 ; but place of pay- 
 ment will give jurisdiction in case of a liquid debt, 531 ; in actions on con- 
 tract in Scotland, 538 ; in England, 540. 
 
 ra cases of declarator of death, 153. 
 
 principles of jurisdiction generally recognised, 515 et. seq. ; domicile in ques- 
 tions of status, S16 ; acquisition of domicile implies a voluntary subjection 
 of all personal questions to that jurisdiction, 517 ; situs in questions as to 
 things, 516 ; in questions of succession either domicile or sitv^, 516 ; prin- 
 ciple, how limited, 517 ; founded by personal presence or arrestment of 
 property, 519, 532 ; this principle now limited, 520 ; principles of, recog- 
 nised in Germany, 534 j in France, 535, 536 ; in Egypt, Italy, and Belgium, 
 537 ; special jurisdiction founded by arrestments in France and Belgium, 
 536, 537 ! same in Scotland, 539 ; jurisdiction in Scotland, 538 ; in England, 
 539 ; service out of, 540 ; of Court of Admiralty, 540 ; by seizure of ship 
 only method of founding jurisdiction in England by way of arrestment, 541. 
 
 against itinerants in Scotland, 538 ; meditatione fugce warrant, 538 ; ne exeat 
 regno in England, 541. 
 
 in case of foreign trading companies in England and Scotland, 160. 
 
 courts will exercise jurisdiction at instance of foreigners as readily as at 
 instance of natives, 508, 512 ; rule in France, 509 ; in action on bills, 357 ; 
 exceptions to rule, 511, 513, 514 ; rule in Belgium, 515. 
 
 voluntary, 499 ; effect of acts or documents of, 499 ; demands for information 
 in questions of voluntary jurisdiction, 561. 
 
 prorogation of, rules for, 541 et seq. ; in Scotland, Switzerland, Germany, and 
 England, 543 ; proposed limitation of right of prorogation in case of actions 
 as to heritage or in rem scriptce is unsound, 544. 
 
 criminal, different theories of, 626 et seq. ; principle of territpriality, 626 ; law 
 in Germany, 648, 649 ; sphere assigned to forum delicti commissi and /orum 
 domicilii in Middle Ages, 621 ; forum deprekeimonis, 623 ; rule of locus 
 delicti alone undisputed, 625 j jurisdiction over subjects everywhere, 653, 
 672 ; where locus delicti has no trustworthy criminal law, 651, 652 ; in case 
 of ships and extra-territorials, 651, 659 ; over all persons present in territory, 
 647 ; no jurisdiction over foreigners for crimes committed abroad, 675. 
 
 to punish continuous crime, 677 et seq. ; rule in Germany, Scotland, and 
 France, 682, 683 ; extinguished by pardon or full punishment in country 
 with concurrent jurisdiction, 684 ; by partial punishment, 687, 688 ; not 
 extinguished by punishment suffered for such offences as treason, 688. 
 
755 
 
 Jits aXbmagii, 448, 449. 
 
 Jus Asdomicvm, 449. 
 
 Jus civile, 10. 
 
 Jus gentium, distinguished from international law, 9, 10 ; in older Middle Ages, 21. 
 
 Z((,ndsassiatus plenus, 518. 
 
 Law, relation of, to morality, 64!>1 et seg. 
 
 Law, foreign, is a fact to be proved, 116 ; may in simple cases if undisputed be 
 assumed to coincide with lex fori, 118, 119 ; how proved, 119, 122 ; may be 
 proved by reference to authoritative treaties, 121 ; how proved in England 
 and Scotland, 122, 123 ; reference to oath and admission excluded, 120 ; it 
 is pars judicis to apply, 117 ; burden of proving, lies on party who alleges 
 that it differs from native, 114 ; foreign statute must be shown to be still 
 in force, 121 ; must be expounded by foreign counsel, 120 ; proof of, in 
 questions as to bills, 353. 
 consequences of infringement or misapprehension of, by Court, 122, 578, 585. 
 
 Law agent, duties, rights, &c., of, regulated by lex fori, 505. 
 
 Lay days, 270. 
 
 Lease, 332. 
 
 Legacy, by what law regulated, 477, 478. 
 
 Legislature, judge must obey rules of, 61, 703. 
 
 Legitim, claims of, as affecting powers of donation, 336, 405 ; rights of those 
 claiming, by what law regulated, 479 ; rule in England, Scotland, and 
 France, 480. 
 
 Legitimatio ad causam, 503. 
 
 Legitimatio per rescriptum primdpis, 415, 420, 421. 
 
 Legitimation per subsequeus matrimonium, effect of, on nationality, 100, 115, 415 
 et seg. 
 law of father's domicile at date of fact inferring legitimation rules, 415 ; 
 other theories, 416 ; law of Scotland and England, 417; of France, 417, 
 418 ; effect of, to what it extends, 418, 419 ; rules of feudal law in 
 relation to, 419, 420 ; form of, determined by the rule, locus regit 
 actum, 415. 
 
 Zex Anastasiana only applicable if applicable bylaw of original obligation, 305, 
 306. 
 
 Life, presumption of, 552, 553. 
 
 Liquidation, see Bankruptcy. 
 
 Ids alibi pendens, effect of plea of, 545 ; in England and Scotland, 547 ; in France, 
 548. 
 
 JAtera scripta, effect of, in obligation by biU, 340. 
 
 Litis decisoria vel ordinatoria, 129, 550. 
 
 Loan, 333 ; limitations of capacity to contract, 333 ; of persons under paternal 
 power, 208, 209. 
 
 Locu^ delicti, only imdisputed ground of criminal jurisdiction, 625. 
 
 what is, in case of continuous crimes, 677, 678, 682 ; in cases where the 
 criminal is in one country, while his act takes effect in another, 682. 
 
 Locus poimtentice, 331. 
 
 Locus regit actum, origin of rule, 25, 126 ; cannot be justified a priori, 127, 128 ; 
 
 but sanctioned by general custom, 128 ; time of origin, 129 ; originated in 
 
 judicial proceedings, 130 ; extended to private attested deeds, 131. 
 
 not applicable to real rights, 132, 231 ; not confined to deeds judicially 
 
 attested, 133, 134 ; nor to forms which have in view means of proof, 136 ; 
 
756 
 
 limitation of the rule to forms, 136 ; applicable to unilateral deeds — e.g., 
 testaments, 140 ; rules for application of the rule to such instruments, 466 
 et seq. ; rule does not apply to acts of officials, 142 ; in cases of obligation 
 to convey heritage in Scotland, 144 ; in case of revenue or stamp laws, 147 ; 
 applicable in cases as to Senatus ConsuUum Telleicmum (suretyship of women), 
 208 ; not applicable in cases where prohibitory law exists at the place of 
 execution, 280 ; in case of biUs and their transmission, 242, 355 ; in cases , 
 of recognition of bastards, 415 ; of marriage, 368 ; of betrothal, 412. 
 
 Locks regit actum, no satisfactory distinction between extrinsic and intrinsic forms, 
 136 ; objection to application of rule as being in fraudem legis, 138, 469. 
 rule is permissive only, 138 ; but in Scotland and England imperative unless 
 contract to be performed in these countries, 144, 145 ; limitation of rule 
 in cases where the place of fulfilment or the known nationality of parties 
 allows observance of either law, 140 ; may be superseded by lex domicilii 
 of parties, 142 ; does not afifect mode of proof, 144. 
 change of domicile does not eUde effect of rule in bilateral contracts, but does 
 alter testaments, 149 ; does not affect application of rule to contracts as to 
 succession, 150. 
 rule adopted in France, 143 ; in Scotland, 143, 144 ; in America, 145 ; in 
 England, 145 ; but English forms must be observed as well, 146. 
 
 Lottery, foreign, law will enforce contract of sale for tickets made in country 
 where such sale lawful, 277 ; but no judge can enforce contract if his law 
 condemns it as immoral, 279 ; where sale forbidden, action by holder good, 
 by seller bad, 278. 
 
 I/ucra nuptialia, 410. 
 
 Lunatic, see Guardian. 
 
 Majority may be conferred by sovereign, but only on his own subjects, 198 ; status 
 of, cannot be lost by change of domicile, 198, 199; Savigny's view, 199. 
 See Minor. 
 
 Mandate, obligation of mandant in case of contract constituted by letters, 147 ; 
 mandate so constituted will bind mandant to keep mandatary who has con- 
 tracted in his own name scatheless, according to law of his domicile, 297 ; 
 essentials of sale by mandatary, 240 ; contract concluded by mandatary 
 ruled by law of that contract so far as within his powers, 292 ; extent of 
 powers determined by law of place of mandate — vis., lex domicilii — of 
 mandant as a rule, 292, 293 ; exceptions to this rule, 294 ; law of England 
 and Scotland is conform to this rule, 294 ; in America and Germany by 
 law of the place of the contract concluded, 294. 
 real rights over property in mandatary's hands ruled by lex rei sitce, 295. 
 interest due by mandatary, 286, 297. 
 of client to solicitor in an action, 505. 
 
 Mandatary, necessity of sisting, 506. 
 
 Manorial holdings, 453. 
 
 Manufactory in foreign oountry.law of prescription, howaffectedbypossessiouof,322 
 
 effect of, in bankruptcy jurisdiction, 596, 607. 
 Manufactures, imitation of foreign, 363, 364. 
 
 Market, sale in open— all resorting to market bound by one law, 140, 268, 334. 
 property acquired in, must be recognised even by country to which real owner 
 
 belongs, 238, 239. 
 in actions for recovery of moveables, protection accorded to such contracts 
 by law of place where properly acquired must be recognised, 244, 245. 
 
757 
 
 Marriage, form of, may be acoordiugto lex loci actus, 368 ; this not strictly justifiable, 
 368 ; principle of English, Scots, and American law, 368, 370 ; law as to Ger- 
 mans marrying abroad, 373 ; application of rule to case of ambassadors' 
 hotels, 371, 372, 492, 493 ; exception to rule iii case of heathen countries, 368, 
 371 ; no exception where law of domicile requires an ecclesiastical cere- 
 mony, 370 ; principle of exception as in, fravdem legis domesticce not appli- 
 cable in such cases, 369 ; but is recognised in France as a ground for 
 reduction, 372. 
 
 prohibitions against, effect of, determined by the law of the husband's domi- 
 cile, 366 ; exceptions to this rule, 367; in Scotland and America, by the 
 law of the place of celebration, 371 ; law of England, 371 ; exceptions in 
 the case of marriages polygamous or incestuous /w« gentium, 366 ; marriage 
 of French subjects without notice voidable in the discretion of the court, 
 372. 
 Marriage, effect of, or personal relations, determined by law of domicile, 387 ; in 
 England and Scotland, by lex fori, 387. 
 
 donations between spouses, 404. 
 
 contract of, law of husband's domicile at marriage regulates, 406 ; unless 
 there is an immediate change, 407, 408 ; power to alter, 405. 
 
 effect of, on property determined by law of domicile, if estate regarded as 
 unum quid, 391 ; law of succession wiU test this, 392 ; this view adopted 
 in Italy and Germany, 395 ; in France (?), 395 ; if estate regarded as par- 
 ticular, lex rei sitce will rule, 391 ; this is view of old German and French, 
 and present English law, 392 ; in English and Scots law, property in land 
 ruled by lex rei sitce, in moveables by law of domicile, 393, 395. 
 
 succession between spouses, 393, 408. 
 
 rights of property not altered by change of domicile, 398 et seq. ; various 
 theories, ^99 et seq.; law of Scotland and America, 403 ; of France, 403. 
 
 second, effect of, on rights of property, 409. 
 
 capacity of wife determined by law of domicile, 396 ; in Scotland, by lex 
 loci contractus, 396 ; in America, according to circumstances, 396. See 
 also Divorce. 
 Measure, how determined, 270. 
 Meditatio fugcB warrant, 538. 
 Middle Ages, international law in earlier, 17 ; in later, 21 ; system of personal 
 
 laws in, 18 ; criminal law in, 620 et seq. 
 Military service, obligation to, 724, 725. 
 
 Minor, domicile of, 99, 101 ; change of domicile by, 100, 103, 112 ; in cases of 
 adoption, 101 ; domicile of, cannot be changed by widowed mother, 105 ; 
 and in French law, cannot be changed by father, or any representa- 
 tive of, 113 ; change of domicile cannot make a major minor once 
 more, 199. 
 
 does not in strict sense labour under any incapacity, 162. 
 
 privileges and protection of, generally recognised, 112 ; these determined by 
 law of domicile, 179, ISO ; legislative adoption of this theory, 182 ; argu- 
 ments against it in England and America, 182 ; law of domicile will, as 
 a, rule, determine fact and import of minority in Scotland, 186 ; excep- 
 tions to this rule, 186, 187 ; similar rule and exceptions in France, 187 ; law 
 of nationality rules in Belgium, 187 i rule in Germany, 187 ; exception 
 in case of right to sue, 187, 188 ; lex loci contractus rules fact and conse- 
 quences in America, 188 ; in England, law of domicile, 188. 
 
 restitution of, ruled by lex domicilii, 215. 
 
758 
 
 Minor, powers in connection with real estate ruled by lex domicilii, 241. ' 
 
 Missio in possessionem, 523, 530. 
 
 Money, payment in, by what law regulated, 270, 283, 284, 333. 
 forced currency, how far to be accepted as payment, 310. 
 
 Mm-a, measure of damage caused by debtor's, 289, 290 ; law applicable to altera- 
 tions on obligations caused hymora, 300 ; law of, in connection with move- 
 able property, 226. 
 
 Morality, relation Ibetween law and, 641 et seq. See Immoral. 
 
 Moratorium,, 309, 314. 
 
 Moveables, rule mobUia sequuntur personam, 25 ; in Middle Ages, law of owner's 
 residence governs, 23 ; origin of this rule, 25 ; extended to real rights in 
 moveables by some authors, 224 ; how this is accounted for, 226 ; falsity 
 of doctrine, 226 et seq, ; it is only strictly applicable in cases of inheritance 
 and of the property of spouses, 225, 226 ; exceptions to rule generally recog- 
 nised, 226, 227 ; applicable in cases where articles not long in one place, 
 229 ; Savigny's theory as to the extent of the application of the rule adopted 
 with limitations, 230 et seq. 
 what law will determine whether a right is moveable or immoveable, 234, 235 ; 
 application of rule mohUia sequuntur personam in bankruptcy, 602, 608 ; 
 application of rule in law of succession, 447 et seq. ; in England, Scotland, 
 and America, 461. 
 acquisition of, ruled hy forum domicilii, 243 ; importance of rule, 244. 
 
 Murder, see Crime. 
 
 Nationality, principle of international law according to Mailher de Chassat, 52 ; 
 regulates all personal rights, 95 ; but not questions of obligation or of 
 jurisdiction, 109 ; regulates private rights in Italy, France, Belgium, and 
 Switzerland, 111 ; impossible to have double, 91 ; how acquired, 92, 111 ; 
 determined first by descent, 99, 112 ; how lost, 112, 115 ; minor can change, 
 104 J widowed mother cannot change children's, 105 ; father can in Eng- 
 land, Germany, and Belgium, 112; cannot in France, 113; changed by 
 official duty (?); 105, 115 ; new, must be acquired according to law of new 
 country, 106, 107. 
 in cases of legitimation, 100 ; of bastardy, 99 ; of married woman, 102 ; 
 married woman allowed a nationality of her own in certain circumstances, 
 114. 
 
 Naturalisation, of minors without consent of guardians by act of father, 100 ; how 
 effected in Germany and England, 111 ; how shaken off, 112 ; in America, 
 112. 
 
 Ne exeat regno, effect of writ in England, 541. 
 
 Ne bis in idem, application of maxim, 685, 686, 689 ; purely a rule of process, and 
 does not in all cases preclude further inquiry, 686. 
 
 Negotium stricti juris, 523, 531. 
 
 Negro, see Slavery. 
 
 Nobility, definition of, 168 ; no general rule for recognition of privileges of, in 
 foreign countries, 195 ; patents of created, recognised equally with heredi- 
 tary, 196 ; recognition of, in German Empire, 196. 
 
 Non numeratw pecuniw, plea of, 308. 
 
 Notes payable to bearer, 337; law applicable in questions (1) between claimants to, 
 (2) between creditor and debtor in, 337, 338 ; decree of cancellation of, 338.' 
 
 Notice, see Bill. 
 
 Nullity of foreign judgment, 577, 578 ; in English courts, 678. 
 
759 
 
 Oath, form of, in iuveatigations, 559, 560. 
 
 reference to effect of, 550, 559, 565, 575. 
 
 of military service, breach of, as ground for extradition, 725. 
 Obligation, law applicable to, 66 ; different theories as to regulation of, 259 ; law of 
 the debtor's domicile is the true rule, 262 ; domicile in such questions is the 
 domicile of Koman law, 109; reasons for the rule, 263 ; exception to rule, 266 ; 
 local restrictions of debtor's domicile — e.g. , rate of interest — do not affect, 267 ; 
 rule limited by the application of the principle of iona fides, 268 ; thus local 
 law of markets rules obligations contracted there, 269 ; where the place of 
 performance coincides with the place of conclusion gf the contract, the law 
 of that place will rule, 270 ; or law of place of performance when that is 
 the intention of parties, 270 ; as to immoveables depends on lex rei sitce, 271 ; 
 ea; delicto regulated by the place of the delict as regards reparation, 272, 
 351 ; law regulating obligation ratified after its original execution, 298, 299 ; 
 locus of a new contract added to an old is quite distinct, 299 ; fault of debtor 
 altering obligation does not alter law of, 299. 
 
 law of place of performance regulates manner of payment, 270, 307 ; 
 unless some other mode is implied, 270 ; perfdrmance of, ruled by law of 
 obligation, unless the performance is an independent legal transaction, 307. 
 
 discharge of, regulated by the law of the, obligation, 307 ; but as regards form, 
 is subject to its own law, 307 ; in consequence of bankruptcy or prescription, 
 regulated by lex domicilii of debtor, 307. 
 
 transference of, see Assignation. 
 
 cannot transmit to heir of creditor or debtor, unless law of obligation and law 
 regulating the succession concur to this effect, 327, 328. 
 
 import of, 282. 
 
 interpretation of, 329. 
 
 reduction of, 331. 
 
 conditions attached to, 331. 
 
 joint, 290. 
 
 limitation of actions upon, ruled by lex domicilii, 273. 
 
 place of performance, or payment, or lex contractus, not necessarily sufficient 
 to confer jurisdiction on courts of that place, 262, 522 ; law of contract 
 will determine whether it can be sued upon, not lex fori, 279. 
 
 but judge must refuse to recognise obligation which lex fori pronounces 
 immoral, 274. 
 
 law of obligation will rule qnestions aS to destruction of subject of obligation, 
 or increase from it, 300. 
 
 of married women, 396. 
 
 of foreign sovereigns, 488, 493 et seq. 
 .■j ,, concluded on board ship, 489 ; in a barbarous country, 491. 
 Occu/patio, 238. 
 
 Occupation by foreign army, effect of, 581. 
 Officials, see Document, Diligence, Puilica Fides. 
 Qxiusprphamdi ruled by lex fori, 549. 
 
 Origo in Koman law, 81 et seq. ; determined jurisdiction and personal law, 86 ; in- 
 applicable in modern times, 87. 
 
 Pactum Displicentiw, 299. 
 
 Pactum illicitum, 27.5 et seq. 
 
 Pactum nwptiale, 406. 
 
 Paper currency, 283,^284 ;, forgery of, 664, 716, 717. 
 
760 
 
 Parata executio, 612. 
 
 Pardon, will extinguish concurrent criminal jurisdiction, 684 ; other views, 692, 693. 
 Pwrens binubus, rights of, 409, 410. 
 
 Parent and child, domicile of child regulated by that of father, 101, 102 ; nation- 
 ality of child, how affected by that of father in Germany, 112 ; in Belgium, 
 114 ; in France, 113 ; in case of legitimated children, 99, 112, 115. 
 in case of bastards, 99, 112, 115 ; claim of, for aliment, 425. 
 duty of, to aliment, 424, 429, 430. 
 rights of child in case of second marriage, 409. 
 personal relations of, how determined, 413 ; law of England, Scotland, and 
 
 France, 413, 414. 
 rights of legitimated children, 415. 
 
 rights of parents in children's property, 422, 444 ; right of parents to succeed 
 to, 424. 
 Passengers on board ship, contracts by, 489. 
 Patents, 363. 
 
 Payment, place of, will regulate manner of payment, 271 ; where new place of, 
 
 adopted by parties or necessitated by refusal to pay, 284 ; rules for, in case 
 
 of loans, 333 ; in case of bill, 345. 
 
 coinage in which, to be made, 283 ; forced currency, 310 ; in case of bill, 345. 
 
 Peasant holdings, regulated by lex rei sites, 258 ; succession in, similarly regulated, 
 
 453, 454. 
 Peregrini, 16. 
 Performance, see Contract. 
 
 Person, legal person recognised by one State must be reoognised by others, 154 ; 
 bad, in State of domicile bad everywhere, 154 ; privileges of, defined by law 
 of country where these privileges claimed, 156. See Company. 
 Person, arrest of, good foundation for jurisdiction, but now restricted, 519, 520. 
 Persons, attributes of, are of a legal character, and exist by force of positive law, 
 
 168 ; are not therefore recognised to same effect everywhere, 169. 
 Personal rights and status, not adequately regulated by law of domicile, 90 ; or on 
 will of individual, 90 ; regulated by law of State with which person per- 
 manently connected, 90 — see Domicile ; change of, on emigration, 94 ; juris- 
 diction belongs to judex domicilii, 516. 
 Personal statutes, system of, 18 ; prevails at present time in India, 18 ; under, 
 obligations are only binding if in accordance with the law of the debtor, 
 20 ; privilege of oath determined by law of defender, 20 ; law of succes- 
 sion, 20. 
 Personality, principle of, in what it consists, 172 ; prohibition against particular 
 form of legal act is no limitation of personality, 173 ; rules affecting true 
 perfionality depend on moral and political considerations, and therefore law 
 of domicile does not rule, 177. 
 Pertinents, 228. 
 Piracy, 700. 
 
 Pledge, right of, determined by lex rei sitce, 251 ; statutory and implied rights of, 
 determined by combination of lex rei sites and the law of the obligation to 
 which they are attached, 252 et sej. ; not defeated if article removed to 
 another territory, 254 ; intention of parties will determine subject of pledge, 
 257 ; accessory obligations determined as in obligatory contracts, 257 ; 
 priority of rights of, determined by lex rei sitce, 257 ; rule as to, in bank- 
 ruptcy, 597 ! rights may be pledged, 258 ; what law rules, 258. 
 Pluris petitio loco, 523. 
 
761 
 
 Political offences, are they to be recognised as ground for extradition ? 718 ; not 
 generally recognised, 722 ; exceptional cases, 721, 723 ; in England, 731. 
 distinguished from crimes as regards international recognition, 675, 676 ; 
 as regards extradition, 716. 
 Political rights denied to foreigners, 72 ; by law of England, 73 ; determined not 
 
 by domicile but by home, 97, 98. See Disability. 
 Possession, questions of, to be determined by lex rei sitw, 235. 
 Possession vaM titre, 245. 
 Possessory action, procedure in, determined by lex fori, material rights by lex rei 
 
 sitae, 236. 
 Postliminium, 492. 
 Pcenace secundarum nuptiarum, 410. 
 
 Preference in rights of pledge, by what law determined, 257. See Bankruptcy. 
 Prescription, acquisition of property by, determined by lex rei Slice, 229, 246 ; in 
 moveables which have no permanent seat the lex domicilii of the possessor, 
 246 ; different theories as to rule, 248. 
 discharge of obligations by, subject to law of debtor's domicile, 807. 
 law of contract will apply where the prescription is truly a condition of the 
 
 contract, 327. 
 on bills, how regulated, 351. 
 of actions ruled by the law of the contract, 248, 307 ; but lex fori now 
 
 generally adopted. See Action, 
 effect of, in criminal law, 684, 694 ; where new prosecution proposed, 684 ; 
 where extradition demanded, 685, 715. 
 Presentment. See BiU. 
 Presumption of life, by what law regulated, 151, 152 ; imply a regulation of 
 
 material rights, 552 ; by what law regulated, 653. 
 Prevention, theory of, in criminal law, 635, 636. 
 Principal. See Mandate. 
 Priority. See Preference. 
 PrivUegia exigendi, 603. 
 
 Prize of war, judgment of foreign Admiralty Court, 569. 
 
 Process, civil, by what law regulated, 67 ; must proceed according to rules of 
 country of court, 496 ; rules of, frequently import material legal relations, 
 497, 550. 
 capacity to ta;ke part in an action, 502, 503 ; title to sue, 503 ; expenses of, 503, 
 
 See Proof, 
 criminal, by what law regulated, 67. 
 all foreign rules of, excluded, 702. 
 
 sentence of foreign court not to be put into execution, 704, 705. 
 Prodigal, interdiction of, by court of domicile should obtain effect everywhere, 
 202 ; rule not recognised in Scotland, 205 ; must be requisite intimation in 
 Scotland, 206 j interdiction of, distinguished from bankruptcy, 205 ; juris- 
 diction of German courts in cases of, 534. 
 Productions in criminal cases, 737. 
 Professio legis, 19 (note). 
 Prohibition of alienation of dower lands, 397. 
 Prohibitory statutes, what are, 123 et seg[. ; Savigny's definition of, too broad, 
 
 123. 
 Proof, regulated by lex fori, 549 ; unless in case of rules which truly effect 
 material legal relations, 550 ; ornui of, regulated by lex fori, 552. 
 of foreign law, 119, 122, See Law, foreign. 
 
762 
 
 Proof, business books as proof, regulated by lex fori as a rule, 553 ; or by lex loci 
 contractus if it gives greater weight to them, 554. 
 proof of execution regulated by lex fori, Hi, 
 Property, capacity to acquire, determined by lex rei sites, 237 ; capacity of thing to 
 , become subject of private property also ruled by lex rei sitae, 238 ; forms of 
 transference of, also ruled by lex rei sites, 239 ; so, too, prescriptive acquisi- 
 tion, 240 ; action for recovery of, ruled by lex rd sites, 241. 
 artistic and literary, 363. 
 Prorogation, 541 et seq. See Jurisdiction. , 
 Protest, see Bill. 
 
 Provinces, different, in one State, 75 et seq. ; will carry out each other's criminal 
 judgments, 79 ; Judgments Extension Act in England and Scotland, 569, 
 592. 
 Public law, distinguished from private international law, 4, 5 ; will regulate rule 
 
 as to recognition of foreign judgments, 581, 582. 
 Pulliea fides, rule hcus regit actum does not apply to cases of, 142 ; scope of rule 
 that pvilica fides universally recognised, 499, 500. 
 only enjoyed by officials in their own district, 559. 
 is origin of rule locus regit aetum, 130, 500. 
 Punishment, theory of, 644, 645. 
 
 effect of punishment suffered fully takes away all right in other States to 
 
 punish, 684 ; effect of, partially suffered, 687, 693. 
 not recognised in cases where State has a duty by its own laws to punish 
 crime — e.g., in cases of treason, 688, 694. 
 Pupil, see Parent and Child, and Guardian. 
 
 Quantity disponible, 479. 
 
 Querela inqfficiosce donationii, dotis, 336, 479. 
 
 Querela non numeratce pecunia, 308. 
 
 Ratification of obligation drawn up for approval by third party, 298 ; by ori^al 
 
 parties to original obligation, 299. 
 Keal property, law of situs rules in later Middle Ages, 23 ; origin of rule, 24. See 
 
 Sucoession, Keal Eights, Legitimation, &c. 
 Keal rights, determined by lex rei sitae, 216 ; various grounds assigned for 
 doctrine, 217 j real rights in lease of inmioveables also determined by lex 
 rei sitae, 332. 
 true theory of this doctrine, 218, 219 ; locus regit actum, inapplicable to con- 
 stitution or transference of, 231 ; rule for determining application of law 
 to, 235. 
 in moveables, said by some to be determined by lex domicilii, not rei sitce, 223 ; 
 origin of this theory, 225 ; illustrations of, confined to cases of succession 
 and property of married persons, 225, 226 ; true determinant is to m sitce, 
 226 ; unless they are passing from place to place, 229 ; or only temporarily 
 abroad, 230 ; locus regit actum is not applicable to origination or trans- 
 ference of, 232. 
 action for assertmg, determined by lex rei sitce, except as regards forms of pro- 
 cedure, 241, 
 rights such as shooting, fishing, ruled by Ux rei sitce, 258. 
 feudal questions, by law of place where feu lies, 258. 
 Kecourse, see Bill. 
 Keduction of contracts, by what law determined, 331.. 
 
763 
 
 Rejection, 831. 
 
 Reparation, see Damages. . 
 
 Representation of ancestor, 67, 445 et seq. 
 
 Reputed ownership, 600. 
 
 Hes judicata, plea of, in Scotland, 566, 676, 578, 586, 591 ; in England and 
 America, 692. 
 no redress against execution done in a foreign country, 570. 
 
 Ses litigiosce, 304. 
 
 Ses tnancipi, 10. 
 
 Reserve, 479. 
 
 Residence, effect of residence, and right of, 92 ; will determine all personal but not 
 political rights, 98 ; where residence continues after right to reside acquired 
 in another country, 97 ; residence to alter nationality must be permanent 
 and with government sanction, 107; length of residence by itself will 
 regulate succession in France, 113, 114. 
 
 Restitutio in integrum, what it is, 213 ; determined by law of legal relation, which 
 is affected by it, 214. 
 specialities in case of minors, 215 ; determined then by lex domicilii, 216. 
 
 Resumption of inquiry. 
 
 Restitution against a contract, 331. 
 
 Retaliation, 73 ; exercise of, by Italian courts, 74. 
 
 Retorsion, see Retaliation. 
 
 Revenue, regulating of foreign, as regards stamps, must be observed, 147 ; as 
 regards smuggling, infringement of, not recognised as subject of obligation, 
 276 ; not ground for extradition, 726. 
 
 Right to sue, 503, 508, 510, 512. 
 
 Roman citizen, see Citizenship. 
 
 Roman law, how far principles of international law recognised in, 9 et sec[. ; view 
 of slavery in, 12 ; locus delicti rule in criminal law, 16 ; determined questions 
 of status by law of foreigner, 12 ; denied rights of inheritance, family and 
 right to hold landed property to foreigners, 10 j extradition under, 17 ; 
 principles of jurisdiction in, 520 et seq. 
 no principles of criminal international law to be found in, 620. 
 
 Sale, form of contract ruled by lex rei sitae, 239 ; concluded by title, 332. 
 
 questions as to the passing of property and risk by, 331, 332 ; fault in thing 
 
 sold, 331 ; warranty, 332. 
 of stocks, limitation on, by Trench law, 280. 
 Salvage, jurisdiction of English High Court of Admiralty in cases of, 540. 
 Sea, see Coast. 
 
 Seduction, claim of damages on account of, 429. 
 Separation, see Aliment. 
 
 Service of writ or summons in foreign jurisdiction, 558 ; effect of disobedience to, 
 568 ; rules as to, in England, 540 ; judgment without regular, not recog- 
 nised abroad, 587 et seq. ; in various countries, 587, 588 ; in England, 592. 
 in criminal ca^es, 704. 
 Senatus Consultum Macedonianum, 208, 333 ; loan is good if in conformity with the 
 
 law of the debtor's domicile, 209. 
 Senatus Consultum VelManum, application of rule locus regit actum to, 137 ; deed 
 good if woman has power either by lex loci actus, or by the law of the 
 domicile, 208 ; application of, generally regulated by the law of the 
 domicile, 334. 
 
764 
 
 Servitude, by what law ruled, 249. 
 
 Set off, see Compensation. 
 
 Shares, see Company. 
 
 Ship, lay days, 270 ; affreightment, contract of, 269 ; contracts of, passengers or 
 board of, 489 ; collisions of, what law applicable, 489, 490. 
 Is part of territory whose flag it carries, 230, 488, 489, 699. 
 crime on board, falls under jurisdiction of the flag, 651, 659 et seq. 
 right of asylum on board, 738. 
 
 Sisting parties, competency of, 505. n 
 
 Slander, damages for, 360, 661 ; action for, 246. '' 
 
 Slavery, how regarded by Romans, 12 ; effect of, determined by law of country 
 where slave is, 190 ; slave going abroad tepaporarily remains sla^e, 191 ; 
 permanently is free, 191 ; no crime to own slave in country whlre that | 
 necessitated by circumstances, 651 ; slave trade, 701. 
 
 Smuggling, contract for, cannot be enforced, 276 ; not ground for extradition, 726 | 
 
 Solidum, obligations in, 290. ] 
 
 Sovereign, foreign, contracts of, how construed, 488, 495 ; how far diligence on( 
 obligations by, possible, 493, 494 ; has right to pursue actions, 614, 618 ; but 1 
 only to defend actions arising out of private transactions or relations, 614 ; 
 in public relations cannot be sued, 616 ; law of France, and distinction 
 between public and private relations of sovereign, 617 ; rule in 'United 
 States, 618 ; exceptions in case of trading by foreign Government or of 
 proceedings in rem, 618 ; can he waive his privileges in ? 617, 618 ; free from 
 criminal jurisdiction abroad, 699 ; Khedive of Kgypt no sovereign, 493. 
 
 Spies, 656. 
 
 Stamp, deed requiring stamp invalid everywhere, 147 ; so in England, 1'4S ; in 
 Scotland? 148. 
 
 State, crimes against, punishable, wherever committed, 627, 655, 664 ; even by 
 foreigners, 648 ; but not by foreigners abroad, 658 ; punishment for, 
 suffered abroad does not prevent new sentence, 68S. 
 
 State loans, 614, 615, 
 
 Status, law of, 160 ; conception of, implies (1) capacity to have rights, (2) cap ,oity 
 to act, 172 ; status, strictly so called, not recognised beyond country of 
 domicile, 162; questions of, determined by law of place where person 
 happens to be, 178; questions of, fall under jurisdiction of judex domicilii, 616. 
 
 Statuta personalia, realia, et mixta, theory of, in later Middle Ages, 22 ; growth of, 
 in later times, 27 ; statute theory gives no substantial ground for rules of 
 international law, 32 ; how treated by Argentr^ 34 ; by Burgundus, 35 ; 
 by Kodenburg, 36 ; assumed by P. Voet, 37 ; Huber, 38 ; Hert, 39 ; 
 J. Voet, 39 ; Bouhier's theory of, 41 ; theory of, attacked by Alef,i(42 ; 
 abandoned in modern times, 43 ; theory of, applied to determine law of 
 status, 163 et seq ; impossibility of carrying out theory, 165. 
 
 Statuta favorabilia et odiosa, 29. 
 
 Statute theory, see Statuta. 
 
 Statute, foreign, must be expounded by foreign counsel, 120 ; must be shown to 
 
 be still in observance, 121. 
 Statutes of limitation, 320. 
 of Merton, 419. 
 of Wills, 467. 
 
 Statut personnel, 161 et seq. 
 
 Stock, provision of French law as to sale of, 280. 
 
 Stolen goods, law of open market with reference to, 238, 239, 244, 245 ; law where 
 
765 
 
 goods stolen abroad and resetted in Switzerland, 683 ; where stolen and 
 resetted in foreign country, 639. 
 Students, incapacity of, to bind themselves by documents of debt, 333. 
 Stuprator, 425 ; obligation of seducer, 429. 
 
 Subalterns, incapacity of, to bind themselves by documents of debt, 333. 
 Subjects, right of State to punish subjects everywhere, 630, 653 ; even when only 
 temporarily its subjects, 647, 666 ; whether person injured is a fellow-subject 
 or a foreigner, 632, 653, 660. 
 will State surrender its own, by extradition ? 727 ; forbidden in Germany, 731 ; 
 a d in almost all countries except in ^England and America, 727. 
 Successiv^n, between foreigners and Roman citizens, 11. 
 
 what law regulates intestate succession 1 67, 445 ; universal and particular, 
 ^46 ; all civilised countries held succession in moyeables to be universal, 
 '44, 461 ; in real estate, determined by lex rei sitai or lexdomicUii, according 
 as H is held to be universal or particular, 418 ; other theories, 449 et seq. ; 
 combination of universal and particular succession is the rule of Germanic 
 and English, 446, 453, 461 ; English law holds succession in real estate to 
 be a mere modus of acquiring property, 453 ; lex domicilii is the rule in 
 Germany, 456 ; and in Austria, 457, 462 ; operation of various rules of, 
 458, 459 ; theories in France, 113, 114, 456, 461 ; rule in Italy, 462. 
 legitim and the like, how claims of, affect capacity of donation, 336, 479 ; 
 law of England, Scotland, and France, 480 ; rights of nearest kin in land, 
 397 ; questions of, between spouses, 393, 480. 
 jurisdiction. in cases of succession belongs partly by /tM^ca; m sito, partly to 
 
 judex domicilii, 516 ; rules of administration in cases of foreigners, 449. 
 quality of, how determined, 235 ; succession to obligation, either as creditor 
 or debtor regulated by law of obligation, and law of succession jointly, 
 327, 328. 
 contracts as to, not affected by change of domicile, 150. 
 
 mode of taking up, 481 etseq.; rules in England, 461, 484, 485; in Scotland, 461. 
 deeds regulating, and capacity to make them dependent on same rules as 
 intestate succession, 462, 463 ; law of England determines such questions by 
 tu, lex rei sitce, 464 ; form of, 466 ; revocation of, 480. See Will, 
 right where no heir, 485, 486. 
 Sajets Mixtes, 94. 
 
 Summary process, rules of, how regulated, 612. 
 Summons, see Citation. 
 Superior, see Feu. 
 Surety, see Caution. 
 Syndic, see Bankruptcy. 
 System of Personal Laws, see Personal Laws. 
 
 Territory, limits of, 486. 
 
 Territoriality, principle of, regulates English and Scots criminal law, 4, 626 ; origin 
 of principle, 23, 24 ; growth of, 27 ; applied by P. Voet, 38 ; Huber, 38 ; 
 Hert, 39 ; J. Voet, 39. 
 principles of, in criminal law discussed, 626 et seq. ; all- persons present in, 
 amenable to criminal law, 647 ; principle of English law leans to refusal to 
 surrender subjects. 
 Trading establishment, foreigners may have, 72. 
 
 effect of possession of trading establishment upon law of contract, 269, 524. 
 effect of, in bankruptcy, 315, 596, 600, 603, 604. 
 
766 
 
 Trading establishment, effect of, in question of prescription, 322. 
 
 Treason, committed abroad is punishable, 665 ; by law of England, 627 ; may be 
 
 committed by other than permanent subjects, 648 ; committed by foreigner 
 
 abroad, not punishable, 658 ; but is, if committed by a subject abroad 
 
 although licensed by foreign Government, 664. 
 against foreign country not to be punished, 666, 667j but may be, as dangerous 
 
 to public peace, 668 ; punishment suffered abroad will not prevent new 
 
 punishment here, 688. 
 Treaties, importance of extradition, 637, 731 ; provisions of French, 716, 717 ; of 
 
 English statute regulating, 731. 
 
 Uliimus ffwres, 485, 486. 
 Union of various provinces, 76. 
 
 "Vagabond may be sued wherever found, 538, 632 ; or punished criminally, 622. 
 
 Venia mtatis, 198, 199. 
 
 Vested rights, inadequacy of, as principle of international law, 53. 
 
 Viability, 151. 
 
 Vidmdicmm, 393. 
 
 Vindication, 243 et seq. 
 
 Volenti mm fit injuria, 663, 693 ; not applicable in criminal law, 663. 
 
 War, effect of, on relations of private law, 491, 492 ; foreign occupation does not 
 
 make judgment foreign, 581. 
 Ward, see Guardian. 
 Warranty in sale, 332. 
 Weight, 270. 
 
 Wife, capacity of, 396; domicile of, and nationality, 102; naturalisationof, 112; 
 nationality of, is in certain cases independent of husband's, 114. 
 capacity of, to contract, 396. 
 rights of husband over, 387. 
 rights of, as regards property during life, 388 ; rights of teroe and jus relictcB, 
 
 393 ; rights of, on death of husband, 408. 
 claim for aliment, 430. 
 Will, form of, affected by change of domicile, 149, 472 ; if null from want of cap- 
 acity or defect in form cannot be validated by such a change, 465 ; form of, 
 regulated by law of intestate succession, 466 ; but lex loci actus or lex 
 domicilii may rule if intention to make is clear, 466 ; not necessary to 
 validate foreign form that testator had no opportunity of observing other 
 form subsequently, 468 ; rule infraudem legis domesticce does not apply to, 
 469 ; necessity of survivance for a period is no formality, 472 ; rules for 
 execution in France, 473 ; in Great Britain, 474. 
 capacity to make, regulated by law that regulates intestate succession, 462. 
 import of, how determined, 472 ; in England and Scotland, 475, 476. 
 interpretation of words of, 476. 
 Wituess, qualification of documentary, determined by lex loci actus, 551 . 
 credibility and competence of, determined by lex fori, 550. 
 ' foreigners and natives equally competent, 72, 552. 
 whether compellable, 556, 703. 
 Women, curatory of, 200 ; disabilities of, 200 ; to be cautioner, 207. 
 disabilities in Scotland, 202 ; England, 202 ; America, 202. 
 
 LOBIMER AND GILLIES, PRINTERS, 31 ST. ANDREW SQUARE, EDINBURGH. 
 

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