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Cornell University Library JX 6093.B22 1892 The theory and practice of P"^^'* ^"'?'' 3 1924 005 228 089 o.,.,.... Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924005228089 THE THEORY AN J) PRACTICE OF PRIVATE INTERNATIOML LAW Printed at The Edinburgh Peess, 9 ^^ ii Young Street FOR WILLTAM GREEN & SOKS AGENTS IK LONDON . STEVENS AND HAYNES. ,, UNITED STATES BANKS AND BROS., NEW YORK. ,, CANADA CARSWELL AND C-"),, LP., TORON-J^O/ THE THEORY AND PEACTIOE OF PRIVATE INTERNATIONAL LAW BT L. V. BAE QUI AUTEM CIVIUM RATIONEM DICUNT HAEENDAM EXTEE- NOEUM NEGANTi II DIKIMUNT COMMUNBM HUMANI GEN- ERIS SOCIETATEM.— ClCEEii. De Off. Hi. 6. SECOND EDITION, REVISED AND ENLARGED TRANSLATED BY G. E. GILLESPIE, Advocate OF THE SCOTTISH BAR EDINBUKGH WILLIAM GEEEN k SONS LAW PUBLISHERS 1.8 9 2 TRANSLATOR'S PREFACE. In 1889 Dr Bar published the second edition of his work on International Law. Although it was styled a second edition, it was in fact a new book, twice as large as the former work, in spite of the omission of the subject of criminal law. The former edition being thus entirely superseded, I thought it desirable to give those who had some acquaintance with the author's work in its English form the opportunity of seeing it in its latest shape. This new edition deals so fully with the details of the various topics of the subject that it will prove as useful to the practical lawyer as its predecessor was. The philosophic lawyer will find the general principles of international law, as well as those of each chapter of it, fully examined and set out. The only important part of the treatise which an English lawyer will find it impossible to accept in any degree is the substitution of nationality for domicile as the determinant of personal law. So many of the questions of international law that have been dealt with by our Courts have arisen between parties who are all of the same nationality, i.e. all British subjects, although under the dominion of different -legal systems, e.g. Scotsmen and Englishmen, that the idea of nationality as a solvent of such questions is unfamiliar and would necessarily be inadequate. But there is no difficulty in substituting domicile for nationality in all those cases in which the latter has been selected by the author as the considera- tion upon which this or that problem depends ; and thus his results are available for the English or Scottish or American lawyer, in spite of this discrepancy in principle. I have endeavoured, in the notes appended to the author's paragraphs to set out shortly the state of the law in Scotland and England on the various points dealt with by the author or suggested by him. He has V vi translator's preface. gone so fully into the decisions of the Continental courts, and has so uniformly appealed to American text-writera in his own text, that I have not found it necessary to cite many decisions either from Continental courts or from those of the United States. When I have cited Continental judgments, I have given references to the Journal du droit international ]priv6, in which all these decisions are to be found. PREFACE. Fully a quarter of a century has passed since the appearance of the first edition of this book. The conclusions which I then advocated — I shall not say originated — have been upon the whole, but of course with certain exceptions, more and more recognised in judicial and diplo- matic procedure, in congresses of the learned, and in legislation and treaties, in so far as legislation and treaties have attacked the subject. The present, the second edition, has however taken a shape which practically makes it a new work. The size of it, if nothing else, shows this. Although I have left out the subject of international criminal law, which I took up along with civil law in the former edition, still this edition contains more than double the number of pages which the first did. Various circumstances have combined to effect this. Not only have the questions which require discussion multiplied largely; subjects which, when the first edition appeared, were scarcely noticed in private international law, have in the meantime had much valuable labour given to them, and some of them have been treated of in monographs. This has been the case with nationality, and with copyright, including the law of so-called industrial property ; while commercial law, including maritime law, has been much discussed with special reference to its bearings on private international law in a fashion quite different from that of former days. Further, the Bemie de droit international, which has appeared ever since 1869, and in a special degree, too, the Journal du droit international privi, have amassed material for illustration of the different topics of our subject in a way that cannot be too highly spoken of, while the literature of the subject has grown in a surprising degree, particularly in France and Italy. So too much of the territory which lies on the boundary line between what is properly public law and private international law, e.g. extra-terri- toriality, has been more thoroughly explored. Lastly, however, the vu Vlll PREFACE. new Italo-French school of private international law has shown the way to a thorough examination of the leading principles of the science. Even although we may not he able to adopt the principles of that new school, we must gratefully recognise all its services, both direct and indirect. In the present edition, forced as I was to take up a distinct position upon these leading principles, I found that this new school required me to subject Savigny's theory, which up to this time had ruled the German school, to a renewed examination. Even in my former edition I hinted that it could not remain standing without some modification. But as that was a youthful production I could not in it becomingly depart from the principles of the well- known master. Now I think I may say that the ground-plan which I have adopted in my second edition, although it is akin to Savigny's doctrine, has taken up a position beside it, which is not altogether depen- dent upon it. The question may be raised, whether the time is yet come for treating private international law as a unity, and without special reference to the law and jurisprudence of the individual states concerned, except in a short sketch, which may serve to give us the bearings of the subject. If an author is to treat the whole subject of private law in different nations thoroughly, he exposes his legal knowledge of the most various -topics to a test that is anything but pleasant. Mistakes will very probably be made, both in his appreciation of particular legal doctrines and in his views of the positive legislation and legal precepts of different countries. An author who deals with some particular heads of private international law in a monograph is in many respects in as advantageous a position as one who writes upon that law from the point of view of one country only. As a fact, so quickly do laws alter in our time, every general work upon international law must be taken, as traders say, " vdth errors excepted," and any lawyer who consults the book for the practical purposes of some particular case should be warned to apply to legal specialists for infor- mation as to the law of the country in which he happens to be interested. But nevertheless, in spite of these advantages which the treatment of the subject by monographs, or from the point of view of one system of law only, enjoys, science dare not refuse to undertake an enquiry which will include all civilised countries, or at least the most important of these countries. For that there is this reason, if no other, viz. that private international law stands in very close connection with public international law, the law of nations. Any special treatment of the subject, such as starts from the positive law of this or that particular national system, runs this risk, for want of assistance from some general theory, that, from the very narrowness of its field of vision, it may make a mistake in its selection PREFACE. IX of the proper point from which to set out, or may lose all standards by which to determine the extent of recognition that should be accorded to the different principles of the science in the general organisation of private international law. But, lastly, any special and restricted treatise will always create a feeling of uncertainty, and will be exposed to the danger of being undermined by some new ideas, perhaps embodied in a statute, which are new and fanciful, but wear the appearance of ingenuity. The structure of private international law of the present day, when taken as a whole, is like an artificial arch. Each particular stone appears to float upon the air ; it is only those who know the whole who know that it will carry great weight in safety, although they know, at the same time, that it cannot be altered just as any one likes. I have not added to the various sections of my work a comparative review of the rules of law in different particular States, which may concur with each other, or may differ. If one has not a certain amount of familiarity with comparative jurisprudence, it is not very easily feasible to work out the problems of private international law without losing oneself among unsubstantial phantoms. German literature, above all others, gives us some warning examples of this kind of attempt. I thought, however, that it was not desirable to treat details and theory together. When these are combined, either the one or the other is apt to be taken too shortly ; at least, I could not trust myself to do equal justice to both. Besides a detailed statement of actually existing law stands in need of constant correction. At the same time, I hope that the selection of illus- trations which I have made from the legal systems of different countries will not be found to be altogether too small. In this way I thought that the leading types of the various developments which different doctrines of law have attained in the most important civilised countries might be presented to the reader, without prejudice to the impression which should be made by the consecutive exposition of the theory of private interna- tional law, or of the sound rules of practice to be observed in it, which reveal themselves along with the theory.^ I had no intention of saying a word of reproach against the works which have undertaken to deal at the same time with comparative jurisprudence and private international law, but my opinion was that the two subjects were better apart, I have nothing but extrinsic reasons for abandoning the dissertation upon criminal law in this edition, which in the former edition was part of 1 In this second edition I have retained and discussed even more fully than in the first, as will be observed, along with theoretical problems, the subject of the practical tendency of these problems. X PREFACE. my subject. I cannot share the theory, which has certainly a large measure of support, that criminal international law belongs to another sphere of ideas altogether, I am rather inclined to the view of one of the most recent of French authors (Laine),^ that private and criminal law, including the law of procedure, are bound up with each other by the consideration that the object to be attained is to settle what is the treatment which the law should mete out to the individual who is in the midst of a foreign legal order, or, more accurately, to settle the jurisdiction of the instruments of law set up by the organisation of different States over individuals and their rights. This consideration is common to criminal and to private law, in so far as, in the former case, viz., in criminal law, the individual's title to defend the sphere of his rights against the control of the law is concerned. In public law, on the other hand, the relation and conduct of States to each other as wholes is what is considered.^ I should have gladly then retained the original scope of the work, in which criminal law was included. But very recent days have given us comprehensive and valuable works, particularly in the juris- prudence of Germany, upon this subject of criminal international law, at least upon the special subject of extradition. Thus my work on the subject may quite conveniently, for the present, stand over, whereas this second edition was much required, especially in view of the effects which important political changes have produced since the date of the first edition. If I had taken in criminal law, the publication must have been long delayed, and in practical use private and criminal law, as a rule, are separable. Thus I felt myself able to exclude it for a time from con- sideration. In my view private international law does not require, as a condition precedent to its existence, that it should have been constituted, so far as its leading principles "or doctrines are concerned, by treaties or by legis- lation. It exists because it is a necessity, and it is the force of circumstances, the nature of things that makes it so. The fact that it embraces a multitude of doubtful and controverted points proves nothing to the contrary, just as little as in other departments of the law. Without desir- ing to deny the value which treaties and legislative provisions possess in many respects, I believe that I have shown in various ways that treaties and detailed enactments of the legislature, the difficulties of which can ^ Introduction au droit international privi, i. p. 11. I regret extremely that I coald not make more use of this work, which is not yet completed. 3 Many legal topics, however, may be treated under the one head as well as under the other. PREFACE. xi only be disregarded by superficial observers, have sometimes done more harm than good in this field, in which every arbitrary measure brings its own revenge, just because the essential characteristics of the subject are determined by the real nature of things. But I am just as far from believing that what is termed an international uniformity of legislation will make private international law for the most part a superfluity.* There are no doubt certain territories in which such an uniformity of legislation may at times be adopted with profit, although perhaps it should be even there confined to a few propositions. But the extent of _ these territories is small. On the other hand, too extensive an uniformity in the laws of civilised States would do much to check progress, which for the most part is dependent on each State enjoying freedom of movement. It is the task of private international law to maintain harmony amidst this freedom of the different legal systems, which are not to be prevented from solving the problems of civilisation in various ways. The part which private international law has to play in the work of civilisation — it is still treated in Germany as a sort of step-child of the philosophy of law — may appear modest as compared with that of public international law ; still, it is important enough. It protects and assures the peaceable intercourse of private persons in different nations. In this way, therefore, it maintains the threads, — which, fine as they are, still together will sustain great things, — on which the exchange of goods and of ideas, the mutual respect of nations, and therefore the maintenance of peace, depend. In the outset of national history hatred of all who do not belong • to the nation, and the exclusion of them from intercourse, are, as a rule, the leading principles. It is, however, a sign of strength and prosperity in peoples and States that they should receive strangers hospitably, and should cultivate closer international fellowship, to the advantage of humanity at large, without injury to their appreciation of their individual nationality, and without anxiety about it. GSttinqen, Jum 1889. * See in this connection Georg. Cohn, "On the Assimilation of the Laws of Nations" (UeUr intemaiional gleiches recht), a lecture given in the Juridical Society in Vienna. Vienna, 1879 CONTENTS. List of Authorities referred to .,.,.. . Table of Decided Cases (British and American) referred to . . . . xli PAGE xxxi Jirst f 0xrk. The Object and the Scope of Private International Law : its History AND General Theory. 1. Object and Scope — § 1 . General Remarks ...... § 2. Private International Law and the Laws of particular States . § 3. Possibility of a General Theory of Private International Law § 4. Real Validity of Private International Law. Law of Custom § 5. Independent Treatment of Private International Law § 6. Different Titles for " Private International Law " § 7. Is there at present a Comprehensive Science of Private International Law (Treaties) ........ II. History — A. Roman Law. §8. The Authorities of Justinian . . . . . . .11 § 9. Original Outlawry of Foreigners, but recognition of the Legal Existence of Foreign Governments. Friendly States. Secuperatores . . .11 §10. The jus gentium oi the B.oma.ns and the jits civile . . . .12 §11. Caracalla's Innovation. The Invasion of German Tribes . . ,14 § 12. Appendix. The Passages in the Roman Authorities which seem to touch upon the so-called Conflict of Laws . . . . . .15 B. The Middle Ages. §§13, 14. System of Personal Laws ...... 17 §§ 15-18. The Later Middle Ages. Statute Theory. Preponderance of Land Ownership. Lex rei sitce. Opposition of the Commentators on the French CoutuTnes to the later Commentators. Rise of the Statute Theory. Meaning of it . . . . . . . .21 C. Modern Times, up to the beginning of the nineteenth century. §§ 19, 20. Individual Writers of this period. Older French Jurists (Dumoulin, D'Argentre) ; Jurists of the Netherlands (Burgundus, Rodenburg, P. Voet, Huber, J. Voet) ; the German Hert ; French and German Authors of the Eighteenth Century (Bouhier, Boullenois, Alef, Hofceker) . . 28 Xlii XIV CONTENTS. II. History — amimuM. D. The Nineteenth Century. §21. The Corfe Cm7 and the French Jurisprudence which rests on it . 42 § 22. The Positivists of England and the United States . . .45 § 23. The Leading Rules established by German Jurists . . .48 § 24. Fundamental Works : 1. v. Wachter ... .52 § 25. 2. V. Savigny ..... 54 § 26. German Literature following on Savigny ; Modifications of his Principle ; attacks on it ; respect paid to it in other countries, particularly in England and the United States ...... 57 § 27. The most recent Literature of England and the United States (Phillimore, Westlake, Beach-Lawrence, Wharton) and its Relations to Savigny's Theory. The Netherlands, Belgium and Russia (Asser-Rivier and V. Martens) . . . . . . . .60 § 28. The new Italian School and its Adherents in Belgium and France. Mancini, Esperson, Fiore ; Laurent, Durand, Weiss . . . .61 § 29. Criticism of the Modern Italian School (Stripow«r) ; Defence and Modifica- tion of its Doctrines by Fusinato ...... 65 § 30. Laws of Public Order, for which the Principle of Territoriality is said to give the Rule. Brocher's Definition of the Laws of Ordre Public International ........ 69 § 31. Practical Achievements of the Italian School (Italian Statute Book). The most recent Italian, Belgian, and French Literature. (Criticism of particular Works.) Periodicals. Associations for the Promotion of International Law ....... 73 § 32. E. Principles of the Projected Inquiry ...... 77 § 33. Comparison of these Principles with those of the New Italian School . 83 § 34 . Outline'of a Theory of Private International Law . . , .85 § 35. Appendix I. Laws of Independent States and Particular Systems of Law within the Boundaries of one State .... .87 Note A on § 35. Relations of Legal Systems of England and Scotland 94 § 36. Appendix II. On the so-called Coercitive or Prohibitory Laws . . 95 §§ 37, 40. Application oi Foreign Law on the Motion of Parties only or ex oMcio. Proof of Foreign Law. Is the Omission to apply a Rule of Foreign Law, or the erroneous Application of it, accompanied by the same Results as emerge if a Rule of our own Law is left out of consideration or erroneously applied ? Treaties, in so far as they touch on Private Legal Relations . 98 Note B on § 37. Application of Foreign Law .... 101 Domicile and Nationality. § 41. Introduction. Various Relations which a Person may bear to a Territory , m I. Domicile. §42. Conditions of Domicile in General . . . . . .112 § 43. Evidence of Intention. Doubtful Cases. Loss of the Old, and Acquisition of a New Domicile ....... 113 § 44. Legal Domicile. Forced Residence. Forced Absence . , . 115 § 45. Legal Domicile of OfScials, Soldiers, and Persons in a dependent Position in a Family ........ ng §46. Plurality of Domiciles ? Persons without Domicile . . , . ng § 47. Appendix. Domicile of Juristic Persons : Domicile of Incorporated Companies in particular ....... 121 CONTENTS. XV §65. §66. §67, §68. §69. §70. §71. §72. §73. §74. II, Nationality. § 48. A. Historical Development ...... § 49. B. General Import of Nationality in International Intercourse § 50. O. Various Principles. Place of Birth (jus soli). Descent {jus sanguinis), Mixed Principle (The Principle of Assimilation) § 51. Children whose Parents are unknown (Foundlings). Illegitimate Descent § 52. Date of Birth decisive ...... § 53. Legitimation ........ § 54. D. Import of the Law of Nationality. Rights aud Duties . E. Loss of one Nationality without a contemporaneous Acquisition of another? § 55-57. Release from the State Ties ..... § 58. ' Loss of Nationality as a Penalty, as a Consequence of particular Acts § 59. Entry into the Civil and particularly the Military Service of a Foreign State. Abandonment of Native Country F. Freedom of Expatriation or Emigration. § 60. (1) Historically considered. The Principle .... § 61. Restrictions by Reason of Special Obligations (Military Service) : Effect of these in Relation to other States ..... § 62. (2) Naturalisation as a Ground for the Loss of a previous Nationality § 63. The Bancroft Treaties concluded by the United States G. Naturalisation. § 64. (1) Definition .... (2) Requirements. Consent and Capacity of the Person The Bauffremont Case ...... (3) Naturalisation an Act of Sovereignty. Defects in this Act. Right of the Courts to inquire into Naturalisation. The Bauffremont Case again Naturalisation infraudem, legis ...... (4) Change of Residence as a Condition of Naturalisation . Domicile for a considerable Period (?)... (5) Privileged Naturalisation of Married Women .... (6) Is the Demand for Naturalisation a highly Personal Act ? Naturalisa- tion of Children who are still under the patria potestas. Naturalisation of Persons under Age ....... (7) Effect of Release from the Ties of a State upon the Dependent Members of a Family ...... Reacquisition of a Nationality that has been Lost . § 75. S. Nationality in Federated States ...... §§ 76-83. /. Change of Nationality in Consequence of n. Cession of Territory. Options ...... . . §§ 84, 85. K. Formal Determination of Nationality ..... § 86. L. Plurality of Nationalities ....... §§87-89. if. General Result. Conflicts. Treaties , . . . . § 90. iV. Determination of Personal Law by Domicile or by Nationality. Positive Law ......... § 91. Reasons for the two different Principles ..... § 92. The Principle of Nationality likely eventually to Prevail . § 92a. Domicile an Auxiliary Ground for Determination : in Particular in Cases of Conflict among the particular Laws prevailing within one and the same State ......... § 93. Distinctions according to different Legal Topics . . . . § 94. Conflicts ......... 123 126 126 131 132 133 134 137 141 143 145 147 150 152 154 156 161 166 168 170 172 175 177 179 181 181 1S9 192 193 196 199 203 205 206 208 III. Equality of Foreigners and Native Subjects before the Law— § 95. The Principle of this Equality ..... § 90. Civil and Natural Rights ...... § 97. System of Reciprocity 1 ..... . § 98. Rights which were originally Privileges. Right to a particular Name § 99. Rights to res mullius. Fishery Rights. Property in Sea-going Ships 210 212 214 216 217 XVI CONTENTS. III. Equality pf Foreigners and Native Subjects before the L^w — continued. §§ 100, 101. Ricfht of Residence in the Country. Expulsion of Foreigners . 219 § 102. Extraordinary Expulsions en masse ..... 224 § 103. Retaliation ......... 226 Appendix. The Legal Capacity of Juristic Persons. § 104. The Principle ........ 227 § 105. Capacity to Sue and to be Sued ...... 229 § 106. Capacity to Contract ....... 233 § 107. Limitations ......... 236 § 108. Companies whose Operation is substantially confined to Foreign Countries, In/raudem legis f . . . . . . . 238 Note C on §§ 104-108. Law as to Foreign Corporations in Great Britain. ........ 239 Appendix II. Liability to Taxation in International Intercourse. § 109. Necessity of Definite and Equitable Principles .... 245 §110. Personal Taxes (Nationality or Domicile ?) .... 247 § 111. Returns from Land ..... . . 248 § 112. Taxes on Real Property ....... 249 § 113. Stamp Duties ........ 250 § 114. Succession Duties ........ 252 §115. Taxatiou of Juristic Persons ... . . 255 § 116. Duties on Coupons ....... 256 Note D on §§ 109-116. Liability of Foreigners and Foreign Com- panies to Taxation ..... , . 259 Wxxxb §00^. The Forms of Legal Transactions. § 117. The Rule " locus regit actum." Origin of this Rule a priori? §118. The Rule "tens rcgrif acittm" rests solely on Custom § 119. The Rule not applicable to the Constitution or Discharge of real Rights in immoveable or moveable Property .... § 120. Other Limitations. Limitation to Instruments of Officials or Notaries. Can the Rule be maintained in any comprehensive sense ? § 121. Limitation to Forms which are useful merely in modum probationis? Lim itation to Extrinsic Forms ?..... § 122. Legal Transactions concluded in another Country in/raudem legis § 123. Is the Rule Permissive or Compulsory ? . § 124. Legal Transactions, concluded before Ambassadors and Consuls . § 125. Legal Transactions between Persons who do not meet (concluded by means of Letters and Telegrams) ■ • • . . § 126. Forms prescribed in the interest of the Fisk § 127. Effect of a Change in the Personal Law, if the Transaction has not been concluded according to the Forms of the lex loci actus § 128. Would it be practical to give the Rule " locus regit actum " Compulsory Effect in the Future ?...... Note E on §§ lJ.7-128 on the Rule ' ' locus regit aelum " 262 264 267 268 270 272 274 278 280 281 282 284 286 CONTENTS. XVll Jottdh ^ox)k. The Law or Peksons. (Status and Capacity.) FAQE I. The Katural Existence of Personality — § 129. Capacity of Living ........ 291 §130. Declaration of Death or Disappearance. General Principle . . 291 § 131. Jurisdiction of the Courts ....... 293 § 132. Extra-territorial Effect ...... 294 II. Status and Capacity {Bechts-und Handlungsfdhigkeit : Etat et capacite) — A. General Doctrines — §§ 133, 134. Introduction. Limitation and Definition of the Rules of Law that belong to this Subject ....... 295 § 135. None hut those Legal Propositions which are concerned with Capacity to have Eights, and those which are concerned with Capacity to Act, belong to this Part of the Subject ...... 301 § 136. More accurate Definition of the Capacity to Act . . . — » §§ 137, 138. Fundamental Distinction in the International Treatment of the Capacity to have Rights, on the one hand, and the Capacity to Act, on the other . . • • • • • ■ § 139. A Special Customary Law among the States of the Continent of Europe in regard to Capacity to Act § 140. Non-recognition of this Customary Law in the United States. Law of England . . . • N'ote F on §§ 137-140. International Rules as to Capacity to Act § 141. Reaction of modern Positive Law against this Customary Law § 142. An Intermediate Principle. (Most Modern French Practice) § 143. Special. Incapacities. (Incapacity for certain particular kinds of Legal Transactions) ...■■•• § 144. Subsequent Change of the Personal Law .... B. Special Questions, touching the Capacity to have Rights (Status)— § 145. Slavery, Civil Death, Bondage . . . ■ • § 146. Other Restrictions on Capacity : by reason of a Criminal Sentence : by reason of Religious Profession . . . . • § 147. Entry into a Religious Order § 148. Privileges of Rank. Nobility . • • ■ C. Special Questions touching the Capacity to Act— § 149. Minority (wmnoeiato): Change of Nationality . § 150. Curatory of Women . • • § 151. Curatory by reason of Weakness of Mind . . • • § 152. Curatory by reason of Prodigality - . . • • J^ote G on § 152. Recognition of Foreign Interdictions § 153. On some Special Cases of Limited Capacity for Obligations {S. Cum VeUeianum, S. Cum Macedonianum) . . ■ ■ § 154. Appendix. In integrum restitutio . . • ■ • Jiftk §ook. Law of the Family. § 155. Introductory 303 304 306 309 309 312 313 315 317 318 321 323 325 327 330 332 333 336 336 338 342 I. Marriage— g^g I 156. Introductory • • ■ XVIU CONTENTS. I. Marriage — cmUinued. A. Personal Capacity to contract Marriage. Impediments to Marriage. Consent of the Spouses. § 157. Necessity for Observance of the Personal Law. Different "View taken by the Law of the United States, and by the Swiss Statute of 1874 . . 343 §§ 158, 159. Respect due to the Law of the Place of Celebration ; Determination as to Marriages actually contracted on the one Hand, and Rule of Conduct for State Officials, on the other ..... 347 §§ 160, 161. What is to be the Result, if the Personal Law of the Bridegroom, on the one Hand, and that of the Bride, on the other, give different Rules as to the Capacity of the Parties ?..... 352 § 162. Dispensations ... .... 357 § 163. Want of Consent as an Impediment to Marriage .... 358 B. Forms of Marriage. § 164. Recognition of the Rule "locus regit aetuTn" in a Permissive Sense . 358 § 165. Laurent's new Theory. Criticism of it. Resolutions of the Institute of International Law ....... 359 §§166,167. Celebration of Marriages before Ambassadors or Consuls . . 362 §168. Marriage in a Foreign Country m/ra«(ieOT %is? .... 366 § 169. Marriages in facie eeelesice, or by State Authority .... 367 Note H on §§ 156-167. Form of the Marriage Ceremony, Capacity to marry, and Marriages in Presence of Ambassadors and Consuls . 370 § 170. C. Declarators of Nullity ....... 375 § 171. ii. Betrothal . . . . . .■ . .377 §172. .B. Personal Relations of the Spouses during Marriage . . . 37S Note I on § 172. Personal Relations of the Spouses . . . 3SC § 173. F. Divorce ......... 381 § 174. Where Spouses have different Nationalities or Domiciles . . . 385 §175. Naturalisation in another State with the Object of being Divorced . 388 § 175a. Competency in Actions of Nullity ...... 390 § 176. Second Marriages ........ 390 §§ 177, 178. Law of Divorce of the Court of the Domicile is declared Competent. Is it desirable to declare it to be Competent ? . . . . 392 § 179. An International Tribunal for Matrimonial Questions ? . . . 397 § 180. Decisions upon Bars or Oppositions to Marriage .... 399 iVbte K on §§ 173-180. International Aspects of Divorce . . 399 G. Relations of the Spouses as regards Property. § 181. The Principle. The Personal Law, generally speaking, the Rule . . 405 § 182. Implied Contract ........ 493 § 183. Limitations on the Personal Law. Regard paid to the lex rei sitae in exceptional Cases ........ 409 § 184. Can the Law of the Spouses' Property undergo a Change, or can it not ? . 418 § 185. Restrictions on the Legal Capacity of the Wife not to be confused with Limitations placed upon the Wife's Power of Disposal by Reason of the Husband's Rights . " . . . . . . _ 4J7 § 186. Enactments for Public Policy ...... 418 iVote L on §§ 184-186. Result of Change of Domicile . . .419 § 187. Limitations on the Freedom of Contract of the Spouses ; Donations between the Spouses ....... 4)^9 §§ 188, 189. Regulation of the Property of Spouses by Contract . . . 422 § 190. Dissolution of the Marriage. Second Marriage .... 424 § 190a. Supplementary Paragraph .... . . 427 II. Relations of Parents and Children — § 191. A. Personal Relations in General ...... 431 iVbfe M on § 191. Personal Relations of Parent and Child . . 432 B. Paternal Authority. §192, 1. Constitution of this Authority by Biith or Legitimation . . 433 CONTENTS. XIX II. -contimied. §194. §195. §196. §197. Relations of Parents and CHldren- § 193. Decisive Date ....... Where the Father and the Child are subject to different Personal Laws Privileges of Eank ...... Is the Personal Law of the Mother to be considered ? Effect of Legitimation on Succession. Theory of English Law iVo<«N on §§ 192-197. Legitimation . § 198. Legitimatio per Mescriptum in particular § 199. 2. Adoption and Arrogation. Emancipation § 200. Is it only Natives of the same Country that can Adopt ? . § 201. Emancipation ...... § 202. 3. Rights of the Father in the Property of his Children . § 203. 4. Obligation to Maintain and Dower Note on § 203. Claim of children for Aliment §§ 204-207. Obligation of a Father to aliment Bastards . III. Guardianship and Curatory — A. Guardianship. § 208. Extra-territorial Recognition of a Guardian appointed under the Personal Law of the Ward ........ Explanation of the Origin of the Opposite View, by which Foreign Real Estate is not subject to the Personal Law .... Particular Powers of the Guardian. Alienation of the Property of the Ward in particular . . . . . ' . Does the Nationality or the Domicile of the Ward decide ? . , § 212. Provisional Guardianship for Persons who are not Citizens . § 213. Change of Nationality by the Ward ..... §§ 214, 215. Capacity for Guardianship and Right to demand it . § 216. Obligation to take up a Guardianship Obligations of the Guardian. His Rights of Control over the Person of the Ward ......... B. Curatory ......... Appendix. Conflicts of Jurisdictions ..... Note P on §§ 208-219. Recognition of Foreign Guardians i 209. §210. §211. §217. §218. §219. 434 435 437 438 439 440 442 444 446 447 447 450 451 453 458 462 464 467 469 471 471 473 474 475 477 477 Law of Things. I. General Principles — A. Rights in Immoveables. § 220. General Agreement to recognise the lex rei sitae, but Diversity of Opinion as to the Foundation of this Rule ..... 483 § 221. Proper Limitations to the Determination of Disputed Questions by the lex rei sitce ........ 487 S. General Propositions connected with Rights in Moveables. § 222. Principle of the Application of the Law of the Place of Residence. The Hvtle " moMlia personam sequtcntur " ..... 488 §§ 223, 224. Exceptional Application of the lex domicilii of the Person who has Right to the Thing (or is Possessor of it) according to the views of Savigny and others ....... 492 § 225. Application of the lex rei sitce, in Cases in which the Moveable Article changes its Locality. Preference given to the Law of the Place where it has last been ........ 497 § 226. Formulation of the Results of our Enquiry . .... 499 XX CONTENTS. I. General Propositions connected with Rights in Moveables — contimued. C. Inapplicability of the Kule ' ' locus regit actum " to the Law of Things generally. § 227. Necessity for observing the Forms of the Place where the Thing is, even in the Case of Moveables. Contracts as to Things in transitu § 228. The Intention of the Parties to be considered T- § 229. D. What Law determines the Character of a Thing, whether it is Move able or Immoveable ?..... § 230. E. Personal Capacity to acquire Rights in Things . F. Particular Legal Relations. § 231. (1) Possession ...... §§ 232-234. (2) Property . . .... § 235. Actions relating to Property .... § 236. Limitations on the Vindication of Moveables in Particular § 237. Prescription of Moveables ..... (3) Rights m re aliena. § 238. General Principles ...... § 239. 'Application of the General Principles to Moveables § 240. The Right of Pledge ..... § 241. Creation of Securities ovei' real Property by Deeds executed in Country . , . . . § 242. Rights of Pledge arising by Operation of Law § 243. Rights of Pledge over Moveables .... §§ 244, 245. Priority of Rights of Pledge .... § 246. Real Rights of Germanic Origin. Rights of Lordship (BannrecJit). Feudal Rights in Particular .... another 500 502 505 507 507 509 512 514 517 520 521 523 524 526 530 533 533 ^el3£ttth §ooh Law of Obligations. Obligations arising from Contracts — A. General Principles. § 247. W^ght to be given to the Intention of Parties .... 536 § 248. Questions which must undoubtedly be determined by the Law of the forum, or of the Place of Performance of the Contract, as the case may ^^ .538 § 249. The various Theories : (a) Law of the Place where the Contract is made ; (b) of the Place of Performance ...... 539 § 250. (c) Theory which takes the Personal Law of the Debtor for its leading Principle ......... 543 § 251. The Personal Law of the Debtor is only as a General Rule decisive. Manifold Restrictions upon this Rule. The Theory which rejects all Principle for the Determination of Local Law in the matter of Obligation 54S § 252. Law of Domicile or of Nationality ? ..... 552 § 253. Import of the Principle of the Law of the Debtor's Domicile . . 553 § 254. Formulation by Legislative Enactment ..... 554 £. Particular Questions. § 255. (1) Subject of the Obligation. Legality of the Transaction. Evasion of Foreign Fiscal Regulations .... 7 . 557 Note Q on § 255. Smuggling, etc. ..... 559 § 256. (2) Intei-pretation of Contracts ...... 560 § 257. (3) Conditions of the Validity of Contracts, and of the enforcement of them by Action. (Prohibition of Lotteries.) Challenge of Contracts . 562 § 258. (4) Import of Obligations ....... sgg § 259. (5) Contracts the Object of which is a Money Payment . . . 559. CONTENTS. XXI The Actions brought against Austrian introduction of a Gold Standard in I. Obligations arising from Contracts — continued. % 260. Forced Currency §§ 261-263. Adoption of a new Standard. Railway Companies after the Germany . (6) Payment of Interest. § 264. Leading Points of View § 265. Maximum Kate of Interest . § 266. Various Grounds for Payment of Interest . Note R on §§ 264-266. Interest §§ 267-269. (7) Parties to Obligations. Agency . Note S on §§ 267-269. Agency §§ 270, 271. (8) Contracts concluded by Letter, Telegram, or Telephone § 272. (9) Ratification. Conditional Contracts § 273. (10) Alteration of Existing Obligations. Dolus, Culpa, Mora. Deatruo tion of the Subject of the Obligation .... (11) Transference of Obligations. Assignation. § 274. General Principles ...... § 275. Where an Arrestment and an Assignation come into Competition . Note T on §§ 274, 275. Assignation and Arrestment . § 276. Incompetency of Assignation of certain Claims. Assignation for a con sideration less than the Value of the Debt {Lex Anastasiana) § 277. (12) Satisfaction of Obligations. Discharge. Exception non numerator pecuniae. Beneficiu/m competentim §278. (13) Extinction of Contracts § 279. (14) Extinction of Obligations by Prescription, and in the Bankruptcy of Debtor. Different Views. The Domicile of the Debtor justified by Principle ...... § 280. Limitations upon this Principle .... § 281. Result in the Case of a Change of Domicile by the Debtor . § 282. Domicile, and not Nationality, the Test. The Author's former View. DiS' tinction between Extinction of an Obligation by Lapse of Time, and Limitation of Action NoU U on §§ 279-282. Prescription § 283. (15) Transmission to Heirs . C. Particular Contracts. § 284. (1) Sale. Letting and Hiring. § 285. (2) Donation in Particular ...... II. Obligations by Poree of Law. (Obligations quasi ex contractu and ex delicto) — § 286. General Principles ....... § 287. Special Questions connected with Obligations ex delicto Note "W on §§ 286, 287. Obligations ex delicto § 288. Obligations quasi ex contractu ... § 289. Liability of Third Parties. Final Observations Mandate. Loan. Caution PAGE 571 572 578 580 583 585 587 591 595 598 599 601 602 603 607 610 613 613 620 621 622 624 627 628 630 634 638 640 642 643 (Eighth §ook. COMMEECIAL LaW. I. General Principles — §290. A. Commercial Affairs. Character of a Person as a Trader § 291. B. Managers and Assistants and Trading Partnerships II. Negotiable Notes or Bonds payable to Bearer — § 292. General Principles ...... § 293. The French Statute of 15th June 1872 645 647 649 650 XXll CONTENTS. Capacity to draw Bills . II. Negotiable Notes or Bonds payable to Bearer — continued. § 294. Taking Notes out of Circulation. Judicial Procedure for this Purpose Note X on §§ 292-294. Negotiable Instruments in England . III. Freight— § 295. General Principles. Freedom of Contract ..... § 296. Uniform International Code for Carriage on Kailwaya. The Convention at Berne in 1886 ........ § 297. Special Legal Questions. Responsibility of Railway Companies beyond their Contracts . . . . . . . Note Y on §§ 295-297. Carriers' Liability .... IV. § 298. Contract of Insurance ... ... Note Z on § 298. Insurance Contracts ..... V. Law of Bills— § 299-301. Introductory, § 302. Form of Bills § 303. Legal Relation of the different Obligations on a Bill undertaken in different Territories, in so far as Form is concerned §§ 304-306. Substantive Import of the different Obligations on Bills. Extent of these Obligations. Conditions of Recourse (Protest. Notice of Dishonour) ....... § 307. Form and Period for taking a Protest .... §308. Prescription of Actions on Bills ..... § 309. Interest in Respect of Delay. Re-exchange. Re-drafts or Cross-bills § 310. Extra-territorial Effect of Letters of Grace (Moratorien). The French Laws and Decrees during the War of 1870-71 § 311. Procedure and Execution in the Matter of Bills §312. Obligations by Bill dated from a Place other than the Domicile of the Obligant ........ § 313. The Funds in the Hands of the Drawee §314. Proof of Foreign Law in Processes upon Bills § 315. An uniform International Law of Bills ? . § 316. Other Documents payable to Order. Bargains preliminary to Bills Note AA on §§ 299-316. Law of Bills .... VI. Maritime Law — §317. § 318. §319. §320. §321. §322. §323. §324. §325. § 326. §327. Recognition of the General Principles of Private International Law in Maritime Law. An universal Maritime Law. Lex fori in Maritime Law ... Property in Ships .... Note BB on § 318. Property in British Ships Proposals for Legislation. Criticism of these Nationality of Sea-going Ships Law of Pledge over Sea-going Ships . Security Rights when there is a Change of Flag Capacity of a Ship to be made' the Subject of a Security . Note CC on §§ 321-323. Securities over British Ships Joint Ownership in a Vessel .... Power of the Captain to sell the Ship or to grant Bonds over it Liability of the Owner for Delicts and qvMsi Delicts of the Master Claims arising out of Collisions. Collisions in Harbours and in Territorial Waters Note DD on § 327. Collisions Collisions on^the High Seas . Claims for Salvage . Contracts of Affreightment . §328. §329. §330. §331. § 332. Marine Insurance in a Case of Average 653 655 656 658 659 660 661 662 664 671 672 673 679 680 681 682 685 686 683 689 689 690 691 696 699 701 703 705 705 710 711 711 712 713 715 717 719 720 723 726 727 730 CONTENTS. XXIU VI. Maritime Law — cmitinued. § 333. Liability of the Owner on the Master's Contracts . . . .731 § 334., Eights and Duties of the Master and Crew against the Owner . . 732 § 335. Contracts for Insurance against Perils of the Sea .... 732 § 336. Freedom of Ships from Arrestment. Police Regulations. Competency of Consuls ..... ... 735 Immaterial Rights. Copyright, etc. I. Right of the Author in Literary, Musical, and Artistic AA'orks — § 337. Introduction. Distinction between Intellectual Property and other Kinds of Property ........ 737 § 338. The Eight of an Author lies essentially in his Right of Prohibition against the Public ......... 738 § 339. The Principle for the International Treatment of Authors' Rights which follows from their Character as Rights of Prohibition. General Results of this Principle ........ 739 §340. The Right of Authorship is a Private Right from the Author's point of view. Results of this Proposition. Contracts connected with this Right. Succession in it . . . . . . . 741 § 341. What Acts fall under the Privilege of Prohibition conceded by the State ? 743 § 342. Effect of the Law of the State where the Work had its Origin upon the Recognition of the Rights of the Author in some other State . . 744 § 343. Observance of the Formalities required in the State in which the Work had its Origin ........ 746 § 344. Different Periods of Protection ...... 746 § 345. Equal Protection to Natives and Foreigners. Example of French Legis- lation. Eeoiprpcity ....... 748 § 346. International Conventions ....... 749 § 347. Eetrospective Effect of Conventions ..... 750 § 348. Is the Protection given a Protection for Native Authors, or a Protection for Native Production ? Principle of Personality as against that of Territoriality ........ 752 § 349. Protection of unpublished Literary Works ..... 753 §350. Right of Double Publication ...... 755 § 351. The General Convention at Berne in 1885. Substance of it, and Com- mentary on it. The Importance of Special Conventions concluded by Individual States in Relation to it . . . . . 756 § 352. Appendix. Protection of Photographs ..... 759 JVb^e EE on §§ 337-362. International Copyright in Great Britain . 761' II. §§ 353, 354. Law of Patents 766 Note FF on §§ 353, 354. International Law of Patents in Great Britain 770 III. §§ 353-356. Law of Industrial Designs and Models . . . .771 IV. Law of Trade-Mark. Protection of Trade-Name — § 357. Introduction. Unfair Competition on the one side and Law of Trade Mark on the other ....... 775 § 358. The Exclusive Right to a Mark is at once an Adjunct of the Personal Rights of the Individual and a Right of Prohibition. Principles for its Inter- national Treatment ..... . . 776 § 359. International Treaties ....... 785 XXIV CONTENTS. IV. Law of Trade-Mark, Protection of Trade-Name — continued. § 360. Protection for Goods described or marked with a Name or a Firm . . 786 § 361. Convention of Paris, 1883, and Protocol of Rome, 1886. The English Merchandise Marks Act of 1887. Final Remarks . . . 787 Note GO on §§ 357-361. Trade-Mark and Trade-Name . . 789 Law of Succession. L General Principles. Snccession ah intestato — § 362. The various Theories and the Grounds on which they rest. Personal Law or lex rei sitce for Immoveable Property. The idea of an Universal Succession decisive in favour of the Personal Law §§ 363, 364. Historical Explanation of the Diversity of Legal Doctrine in different Countries. Necessity for the Recognition of the lex rei sitce to a certain Extent ......... Note HH on §§ 363, 364. Principle of Succession in Britain and the United States ........ § 365. Presumed Intention of the Deceased. Is Nationality or Domicile to rule the Law of Succession ? Coercitive Laws .... §§ 366, 367. Capacity to take. Juristic Persons in particular II. Mortis causa Dispositions and Contracts as to Succession — §§ 368, 369. Capacity to make a Testament Note II on §§ 368, 369. Capacity to Test § 370. Form of mortis causa Deeds .... Note KK on § 370. Form of mortis causa Deeds § 371. Execution of a Holograph Testament § 372. Limitations on the Rule " locus regit actum" § 373. Distinction between Form and Substance of a Testament § 374. Effect to be given to the Contents of mortis causa Settlements. Limitations put upon the Testator's Intentions. Prohibition of Benefits to par ticular Persons ....... Note LL on § 374. Limitations on the Testator's Powers § 375. Limitations on the Powers of the Testator. Prohibition of Substitution and Entails •••.... Note MM on § 375. "Validity of Testamentary Provisions §376. Rights of AeretiesZcg'aimi and of Persons entitled>y Law to share in the Succession ...... Note NN on § 376. Heredes legitimi . § 377. Construction of Testaments .... Note 00 on § 377. Construction of Testaments § 378. Executors of a Will ..... Note PP on § 378. Powers of Trustees § 379. Recall of mortis causa Provisions § 380. Contracts as to Succession . Ill Taking up the Succession and reducing Legacies into Possession- Si 381, 382. General Principles ...... § 383. Taking Possession of the Succession. Law of England in particular § 384. Interposition of Courts of Law in Matters affecting Successions Note QQ on §§ 383, 384. Administration in England and Scotland § 385. Distribution of the Succession .... § 386. Liabilities of the Succession. Right of Separation. Transference of the Succession or a Part of it , § 387. Estate to which there is no Heir. Hereditas jacens 792 798 803 804 806 810 813 813 816 817 818 819 820 822 823 825 826 828 828 830 831 831 832 833 833 836 837 839 840 842 843 CONTENTS. XXV ffilttimtk ^0ok. Law of Pbocess. FAOE I. General Principles — § 388. The Process as a whole ....... 845 § 389. Particular Steps of Process. Application of the lex fori . . . 8i6 § 390. Substantive Rules of Law in the Shape of Rules of Procedure . . 850 II. Attention to be paid to Foreign Rules of Law by the Court of the Principal Process — A. Preliminaries (Instruction) of a Process. §391. Citation of the Parties ; of other persons (Witnesses, Experts) . . 861 § 392. Requirements of Steps of Procedure connected with Proof . . . 854 Note RR on §§ 391, 392. Commissions and Citations of Witnesses, etc., in England and Scotland ..... 856 § 393. Form of Oath ........ 858 § 394. Probative Force of Evidence adduced. Competency of Evidence in general 859 § 395. Incompetency of certain Evidence in particular Cases . . . 861 § 396. Proof of Status ...... 865 § 397. Public Records and Documents. Authentication. Witnesses . 865 Note SS on § 397. Foreign Judgments and Registers . . .867 § 398. Value of Business Books as Evidence ..... 868 § 399. Onus Prohandi and Presumptions .... . 869 § 400. Action pending abroad and affecting the Proof in our Courts . . 871 B. The Parties and their Legal Representatives — § 401. Title to Sue and Necessity for employing qualified Practitioners . . 872 § 402. Plurality of Parties. Zegitimatio ad causam .... 875 § 403. Rights and Duties of the Parties as such towards each other. Caution for Expenses. Rights of the Poor ..... 875 Note TT on § 403. Caution for Expenses. Poors-Boll . . 879 § 404. Mandate to carry on an Action ...... 880 § 405. Position of Foreigners in Arrestment Proceedings. Claims of Damages on Account of the use of Arrestments ..... 880 C. Jurisdiction of the Courts. § 406. Jurisdiction in respect of Subject Matter. Competency of the Legal Remedy ......... 881 §§ 407, 408. Territorial Jurisdiction. Nationality of the Parties. French Law in particular ........ Note UU on §§ 407, 408. Jurisdiction in England and Scotland . 886 III. Procedure in the Court of the leading Jurisdiction submitted to the Consideration of Foreign Court — A. Assistance to be given by Foreign Courts in Matters of Citation and Leading of Evidence. § 409. Duty to give Assistance ? Duty to give Evidence and Opinions on Questions of Law. Duty of third Parties to produce Documents . 887 § 410. What Law must the Judge on whom the Demand is made observe as regards Form ?.......• 890 S. Effect to be given to Judgment pronounced by a Foreign Court. § 411. (1) Introductory. Older Theories . . . . . .892 § 412. (2) The Judgment or Judicial Sentence an Application of the Law to Special Circumstances ....... 894 §§ 412-415. (3) Difference between res judicata on the one hand, and Execution on the other. Necessary Conditions of the Former . . . 897 Note WW on §§ 413-415. Ees Judicata and Execution . . 902 § 416. (4) Nature of Jurisdiction which must be recognised by all Nations. Conflicting "Views. Guiding Principle . . . . . 905 XXVI CONTENTS. III. Procedure in the Court of the Leading Jurisdiction submitted to the Consideration of a Foreign Court — continued, (5) The various Kinds of Jurisdiction to be recognised in International Relations. § 417. Leading Cases in Outline. Principle of Voluntary Subjection. Compet- ency of the /orwm eiomiciZii ...... 908 § 418. Jurisdiction in Real Actions. Exclusive Competency of the /oniro rei siice as regards Immoveables ....... 910 §419. Jurisdiction by Reason of Residence and of Arrestment . . . 912 §§ 420, 420a. Jurisdiction to lay down Provisional Regulations. Succession Suits . ........ 913 § 421. Questions as to Status. Matrimonial Suits . . 913 § 422. Questions as to Partnerships ...... 915 §423-425. The Forum Contractus and Forum Delicti Oommissi . . .916 § 426. Jurisdiction founded upon Voluntary Submission or Prorogation . . 922 Note XX on § 426. Prorogation ..... 924 § 427. Absence of the Defender. Contumacy ..... 924 § 428. Jurisdiction in Questions of Succession ..... 925 § 429. Jurisdiction propter contingentiam ? Jurisdiction reconventions . . 926 § 430. Forum arresti. Is it competent to entertain the Leading Action ? Incidental Questions ...,..: 927 §431. Jurisdiction in Actions of Damages for Collisions at Sea . . . 928 § 432. Jurisdiction of the Courts of several States over the same Matter. Actions of Declarator (FeststellungsMagen). Actions of putting to Silence {Provocationen) ........ 929 § 433. Jurisdiction exercised in Favour of Natives. Subsidiary Recognition of the Forum Domicilii, and of Jurisdiction in the Courts of the Place of Residence ........ 930 § 434. Actions on Immaterial Rights. Actions to compel the Performance of Official Acts. Proof of Facts on which Jurisdiction is founded. Accessory Prestations ....... 931 § 435. Appendix. Extent of the Operation of a Judgment. (Grounds of Judgment.) Reduction of a Judgment {res judicati) by a Declarator of jSTuUity only, or Incidentally ...... 932 Note YY ou §§ 417-425. Leading Grounds of Jurisdiction in England and Scotland ...... 934 (6) Execution of Foreign Judgments. § 436. Distinction between the Execution of Foreign Judgments on the one Hand, and Mes Judicati on the Other ..... 940 § 437. Divergent Theories. Execution on the Ground of Comitas. The Judg- ment as Foundation of an Obligatio ..... 942 § 438. Conditions of Execution. Competency of the Court in which the Process depended. Composite States ..... 943 § 439. Enquiry into the Jurisdiction of the Court that has given Judgment over the Particular Matter ....... 945 § 440. Foreign Judgments may demand Execution though not iinal. Positive Provisions to the Contrary. Criticism of these .... 947 §§441,442. Execution of Judgments pronounced ire COTitemacCTH. . . . 950 §443. Execution of Provisional Decrees ...... 952 §§ 444, 445. Refusal of Execution because of the Contents of the Judgment. Errors in Relation to International Law ; in Relation to the Law of the State in which Execution is demanded ; Conflict with res /w^'cato . 95.5 § 446. Judgments at Variance with the jus publicum of the State in which Execution is demanded -....., 955 § 447. Judgments against Natural Justice. Obviously unjust Judgments. Judgments obtained by Fraud ...... 959. § 448. Defective Grounds of Judgment ...... 962 CONTENTS. XXVii in. Procedure in the Court of the Leading Jurisdiction sahmitted to the Consideration of a Foreign Court — continued. § 449. Adequate Opportunity of being heard. Citation in the Country in which Execution is demanded ; Citation by Consular Courts. Representation in the Process ...... § 450. Objections competent before the Court of Execution § 451. Method of Execution. Means available for Execution § 452. What Courts are Courts of this Country ? Consular Courts § 453. Effect of the Acquisition or Cession or Military Occupation of a Territory on Judgments that have been pronounced § 454. If the Court which gave Judgment is situated in another Part of a Composite State ...... §§ 455, 456. The Condition of Eeoiprocity. Commentary § 457. Value of Treaties dealing with the Execution of Judgments § 458. Restriction of Execution to Judgments of certain specified States §459. Operation, of Treaties. Retrospective Effect § 460. Judgment awarding exequatur. Requisitions by the other Court. Actions for obtaining exequatur § 461. Ko Counter Action admissible in the Process which is instituted to obtain Execution ....... § 462. Original Claim excluded. Possibility of advancing it in the end § 463. Consideration of possible Legislation on the Process of exequatur. Terri' torial Scope of the es^equatur § 464. Incorrect Conceptions. Expenses of the Process § 465. Jurisdiction of the State to which Application is made for exequatur to entertain such an Application even where Foreigners are concerned, Auxiliary Jurisdiction to afiErm the original Ground of Action § 466. Form of Enquiry in Applications for exequatur. (Averments of the Pursuer and Defences for the Defender. Objections.) Enquiry ex parte judicis § 467. Any Enquiry into the Merits irreconcilable with the Recognition and Execution of the Judgment. System of Revision on the Merits § 468-470. Awards by Arbiters in a Foreign Country § 471. Execution of Judgments pronounced in Matters of Voluntary Jurisdiction 1001 § 472. Review of the Principles adopted in a Number of leading States . . 1002 § 473. The Plea of lis alibi pendens where the other Action is in a Foreign Country . . . . . . . . . 1005 iVb^e ZZ on § 473. Lis alibi pendens ..... 1008 §474. Appendix. International Courts of Arbitration when Execution is refused 1010 962 964 968 970 970 973 974 980 981 983 984 986 987 989 992 995 997 998 ^toelfth f xrok. Law of Bankruptcy. I. §§ 475-477. Introduction. The different Theories. Universal Operation of Sequestration ........ 1011 II. Systematic Exposition according to the Principles of Positive Law — § 478. A. The Principle : Bankruptcy a general Execution of Diligence. Award of Sequestration a General Arrestment . , . . • 1017 § 479. B. Conclusions : Power of the Bankrupt to deal with Foreign Property. Legal Position of the Tnistee. Collection of Foreign Property by the Trustee . . . . . ■ ■ • 1018 § 480. Opposition to the Withdrawal of Property in this Country with a View to place it under a Foreign Bankruptcy Process . . • ■ 1021 XXVIU CONTENTS. II. Systematic Exposition according to the Principles of Positive Law — continued. § 481. Possibility of a Plurality of Bankruptcies. Several Business Centres or Trading Establishments. Shares in Public Trading Companies. Plur- ality of Domiciles ........ 1023 § 482. Eelations of the Courts inter se where there is a Plurality of Bankruptcies. Position of the Creditors. Special Agreements .... 1025 § 483. Moveable and Immoveable Property. Formalities of Realisation. Opera- tion of the modern Jurisdictions in respect of Property which have been capriciously set up, or at least extended. Obligation to make the Surplus of any special Process forthcoming ..... 1028 § 484. Right of Secured Creditors and of Persons entitled to retain, on the one hand. Right of the Trustee over Property belonging to Third Parties . 1029 § 485^ Preferences and Evidence to support Claims in Bankruptcy . . 1030 § 486. Right to reclaim Goods that have been sent away ; Stoppage in transitu. Articles that continue to belong to the Bankrupt . . . 1031 §§ 487, 488. Challenge of Acts already done {Actio Pwutiana). Retrospective Effect of Bankruptcy . . . . . . .1032 § 489. Right of Compensation {set off). Assignation made with the View of rearing up Compensation ....... 1035 § 490-493. Beneficium Competentioe. Discharge of the Debtor in the Process of Bankruptcy. Operation of a Composition Contract (Cowcortiaf) • • 1036 § 494. Delays granted to the Bankrupt. Sist of Diligence an initial Rule in Bankruptcy ........ 1040 § 495. Subseq^uent Change of Domicile by the Bankrupt. Obligation of the Cautioner ......... 1040 § 496. Claims that are excluded. Challenge of Discharges or of Compositions . 1041 § 497. Effect on the Legal Capacity of the Bankrupt. His Rehabilitation . 1042 § 498. Effect of a Bankruptcy in a Foreign Country on subsequent Acquisitions of Property . . . . . . . . 1043 Note AAA on §§ 475-498. Law of International Bankruptcy in Scot- land and England ....... 1044 §§ 499, 500. Final Observations. The Universality of Bankruptcy as a Matter to be dealt with by Legislation and by Treaties .... 1050 §501. Resolutions of the Italian International Congress of Jurists, 1880. Pro- visions of the Franco-Swiss Treaty of 1869. The earlier German Statute of 1869 ......... 1054 I. Limits of the Territory of the State in Questions of Private International Law. Narrow Waters. Inland Lakes — § 502. Introduction. Exercise of Voluntary Jurisdiction according to Pappafava 1059 §503. The English Territorial Waters Act of 1878 .... io60 § 504. The Ruling Principle. The Right of the Maritime State not a complete Sovereign Right ........ 1061 § 505. Logical Inferences. Right of Free Passage. Incident passing exclusively on Board of Ships. Criminal Offences with direct Results beyond the Limits of the Ship. Maritime Collisions .... 1063 § 506. Voluntary Jurisdiction on Board of Merchant Ships within Territorial Waters ......... 1066 § 507. Result if the Place of the Ship at the Time of the Event in question cannot be exactly ascertained ....... 1067 § 508. Landlocked Lakes ........ 1067 Note BBB on §§ 502-508. Territorial Waters . . . 1068 CONTENTS. XXIX II. Extra-territoriality of Ambassadors in Matters of Private Law, and in Questions of Process — § 509. Introductory. Erroneous Attempts to find the Foundation for the Plea of Extra-territoriality ....... 1069 § 510. Immunity of the Ambassador as the Source of the Privilege of Extra- territoriality . . . . . • • .1070 § 511. Grotius, Bynkershoek, Vattel ...... 1072 § 512. Views of the more Modern Jurists ; Immunity from all Jurisdictions in the Territory ........ 1073 § 513. The true Principle ; the Immunity an Immunity from Compulsitors only {imperium). Indirect Effect of this on Jurisdiction in the Narrower Sense ; no Domicile for the Ambassador in the State which receives him 1077 § 514. Theories of more Modern Authors, who adopt the Principle of Immunity from Legal Compulsitors only, or approach this result . § 515. Special Questions ....... § 516. Special Questions. Citation. Obligation to give Evidence § 517. Special Questions. Subjection to the Court in Matters of Diligence § 518. Special Questions. Actions connected with Removal from the Ambas sador's House. Eight of his Landlord to retain and seize. Provisional Measures ....■•■• § 519. Special Questions. Application of the Rules of Substantive Private Law the Rule " ZocM« rcgfi* actem " in particular § 520. Beginning and End of the Ambassador's Immunity. Ambassadors accredited to another Country on their Journey to it § 521. Extra-territoriality, if the Ambassador belongs to the Country to which he is accredited . . • • • § 522. Exemption from Taxes and Duties . § 523. Jurisdiction belonging to Ambassadors themselves. § 524. Privileges of Consuls. Consular Archives . § 525. General Estimate of the Privilege of Extra-territoriality § 526. General Extension of the Exemption to Officials who are employed within a Foreign State .... Note CCC on §§ 509-526. Privileges of Ambassadors by the Law of England ...■■• III. Jurisdiction of Courts of Law over Foreign Sovereigns and States- § 527. Introductory. Older Theory (Bynkershoek) § 528. Influence of Modern Development of Constitutional Law § 529. The Modern View. Incompetency of Foreign Courts, as a Matter of Principle, except the formn rei sitce and the forum of Voluntary Prorogation. Traditions and communis opinio as they are represented to be, and as they really are . § 530. Arguments and Counter-Arguments § 531. The Correct Principle. Jurisdiction and "Want of Juri materice ..■•■• § 532. Jurisdiction based on Locality §533. Questions of Execution . . • • § 534. Criticism of Practice. Application of our Rules . § 535. Possibility of International Complicarions. Progress or Retrogression § 536. Particular Questions of Law ..-■•• § 537. Actions on Account of Injuries done by Warships Aoie DDD on §§ 527-537. Jurisdiction over Foreign Sovereigns or States . . . . ■ Index ...•■•■■ sdiction ratione 1078 1081 1085 1086 1088 1090 1091 1092 1094 1094 1095 1096 1098 1099 1101 1103 1106 1110 1111 1113 1115 1117 1118 1121 1123 1125 1131 LIST OF AUTHORITIES REFERRED TO. Abbot, A Treatise on the Law relating to Merchant Ships and Seamen. 12th edition, by S. Prentice, London, 1881. Actes du Congris comviercial international d'Anvers, puhlies par Us sains du secretariat. Brussels, 1886. Addison (C. G), A Treatise on the Law of Contracts. 9tli edition, London, 1892. Albericns de Eosate (oJ. 1356), Be Statutis. Alef, De diversorum statutorum coneursu eorumque conflictu dissertatio. 1740. Alexander Tartagnus, Imolensis (ob. circiter 1477), Oonsilia. 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Eivier, EUments de droit international privi ou du conflit des lois. Paris, 1884 (cited as Asser- Eivier). Atti del II congresso guiridico Italiano international tenuto in Torino I'anno 1880. Turin, 1881. Aubry et Ran, Cours de droit civil francais d'apris la mithode de Zacharie. 4th edition, 8 vols. Paris, 1869-1879. Avant Projet, see Laurent. Bard, Alph., Pricis de droit International, dr. pinal etprivL Paris, 1883. Beach Lawrence, Commentaire sur les iUments du droit international et sur I'histoire du , progris du droit des gens de Henry Wheaton. 4 vols. Leipzig, 1868-1874. Bekker (E, I.), Ueber die Couponsprocesse der besterreichischene Eisenbahngesellschaften und uber die intemafionalen Schuldverschreibtmgen. Weimar, 1881. Bell, Alexander Montgomerie, Lectures on Conveyancing. 3rd edition, Edinburgh, 1882. Bell, George Joseph, Principles of the Law of Scotland. 8th edition, Edinburgh, 1885. Blackstone, Commentaries on the Law of England. 4th edition, by E. M. Kerr, London, 1876. Blanc, Traits de la contrefacon. 4th edition, Paris, 1856. Blum, Urtheile und Annalen des Eeichsgerichts in Civilsachen. 3 vols. Berlin, 1885-1886. Bluntscbli (J. C), Das moderne Volkerrecht der cimlisirten Staaten als Beehtsbuch dargestellt, 3rd edition, Nbrdlingen, 1878. Bluntschli, Deutsche Naturalisation einer separirten Franzosin und wirJcungen der Naturalisa- tion. Heidelberg, 1876. Bohlau (A.), Mechlenburgisahes Landrecht. Vol. L Weimar, 1871. xxxu LIST OF AUTHORITJES. Bohm (Ferd.)i Handbueh des SecMshul/everfahrens im Deulsdien Eeiche uiid gegenilber dem Auslande in burgerlichen Rechtsslreitigkeiten und in Concurssachen. Erlangen, 1886. Bohm (Ferd.), Handbuch der Inleniationalen Nachlassbehandlung mil bcsonderer rucksicht auf das Deutsche Reich und die einzelnen Bundestaaten. Augsburg, 1881. Bolze, Die Praxis des Beichsgerichts in Civilsachen. Leipzig, 1886. Bonnier (E.), Traitides Preuves judidaires, 2 vols. Paris, 1862. 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Vol. I. Leipzig, 1887. V. Biilow und Hagemann, Praktische Erorterungen. Hannover, 1798. V. Bulmerincq (A.), Vbtkerrecht. From Vol. L of Marquanken's Eandbuch des offentlichen Rechts. Freiburg i. B., 1884. Burge, Commentaries on Colonial and Foreign Laws generally, and in their Conflict with each Other and with the Law of England. 4 vols. London, 1838. Burgundus (Nic), Ad consuetudines Flandrim tractatus controversiarum. Arnheim, 1670. V. Bynkershoek, De foro legatorum. (In his Opera Minora. Lugduni Batavorum. 1730, pp. 431-571). Calvo (Charles), Le droit international thiorique et pratique. 4th edition, 5 vols. Paris and Berlin, 1887 and 1888. V. Canstein, Lehrbuch der Geschichte und Theorie des aisterreichischen Civilprocessrechts. 2 vols. Berlin, 1879 and 1882. Carle (Guiseppe), La failliU dans le droit international prive. Translated and annotated by E. Dubois. Paris, 1875. Casanova, Lezioni del diritto internazionale. 3rd edition, with an introduction, and most copious notes by Em. Brusa. 2 vols. Florence, 1876-1878. Casaregis, Discursus de commercio. Chassat (Mailher de), Traiti des statuts, lois personelles et rielles et du droit international prive Paris, 1845. Chavegrin, De la tutelle des mineurs en droit International privi in the "Revue critique de Ugislation et de jurisprudence." Paris, 1883, pp. 497-523 and 573-687.- Christinseus (P.), (ob. 1631), Practica qtioestionum rerumque in supremis Belgarum curiis actarum et observationum Decision's. Antwerp, 1661. Cocoeji (Henr.), Disp. defundata in territorio alieno jurisdictions. (Among his Exercitationes Curiosce, i. pp. 680-745.) Lenigovise, 1722. Cogordan (George), La nationalite au point de vue des rapports iniernationaux. Paris 1879. Constant (Ch.), De I'execution des jugements Urangers dans les divers pays. Paris 1883. Contuzzi, La codificatione del diritto intemationale private, commento alii articoli 6-12 del codice civil. Naples, 1886. Copinger, The Law of Copyright. 2nd edition. London 1881. Curti (Eugen.), Der Staatsvertrag zwischen der Schweiz und Frankreich betreffend Gerichts- stand und Urtheilsvollziehung. Zurich, 1879. Daguin (Chr.), De I'autorite et de Vexicution des jugements Urangers en niatiire civile et commerdale, Paris, 1887. Daireaux, De la condition Ugale des etrangers dans la Republiqu^ Argentine, T. XIII. pp. 286- 298, and 414-424. LIST OF AUTHORITIES. XXXIU Dambach (0.)i Die Oesetzgebung des Norddeutschen Bundes beir. das Urheberrecht an Schrift- werken, Abbildungen, rrmsikaliscTien Gompositionem und dramatiscJien Werken, Berlin, 1871. Dambach (O.), Das ifusterschtUzgesetz vom 11, Jdnnar 1876. Berlin, 1876. Dambach (0.), Der Deutseh-Franzosische ZiterarvertTag vom 19, April 1883, Berlin, 1883. Dambach (O.), Das Patentgesetz/ur das Deutsche Reich, 1877. Darras (Ale), Du droit des aitteurs et des artistes dans les rapports internationally;. Paris, 1887. Demolombe (C.), Cours de Code Napoleon. Vol.1. Traits de la publication des effets , . . des lois en g^&ral. Paris, 1880. Dernburg (H.), Pandektm. "Vol. I. Berlin, 1882. Dernburg (H.), Das Vormundschaftsrecht der Preussischen Monarchic nach der Vormundschafts- ordnung vom 5th July 1876. 2nd edition, Berlin, 1871. Despagnet (Fr.), Precis du droit international prive. Paris, 1886. Dicey, The Daw of Domicile as a Branch of the Law of England. London, 1879. Dickson ("W. G.), Treatise on the Law of Evidence in Scotland. New edition, Edinburgh, 1887. 'DoVs.{W.), Intemaiionaal Privaairecht. I. Person^nrecM. Utrecht, 1880. Duguit (L. ), Des conflits des legislations rilatifs A la forme, des odes civils. Paris, 1882. Diinioulin (Molinseus, ob. 1566), Comm. in codicem. Hannover, 1603. Dnrand (L.), Essai de droit internatioruil privi. Paris, 1884. Eichhom, Deutsche Stoats- und Pechfsgeschichte. 5th edition, Gsttingen, 1843. Eichhom, Einleitung in das Deutsche Privatrecht. 5th edition, Gbttingen, 1845. Emerigon, Traiti des Assurances. 2 vols. Endemann (W. ), Die Eechtshiilfe im Norddeutschen Bund, Erlauterungen des Bwndesgesetz vom 21 Juni 1869. Berlin, 1869. Endemann ("W.), Das Gesetz belreffend das Urheberrecht an Schriftwerken vom 11 Juni 1870. Berlin, 1870. Entscheidungen des Norddeutschen Sundes-Oberhandelsgerichts, with the title, from the third volume onwards, of Entscheidungen des Deutschen Beiahsgerichts herausgegeben von den Bathen des Gerichthofes, 1871-1879. Entscheidungen des K'&niglichen Geh. Obertribunals zu Berlin. Published by authority, Berlin, 1840. Entscheidungen des Oberappettationsgerichts zu Liibeck in Bremischen Civilrechtssachen. Vols. I. and II. (1842-1850). Entscheidungen in Frankfurter Rechtssachen. Edited by Rbmer. Vols I. and II. Entscheidungen des Deutschen Beichsgerkhts in Civilsachen. Edited by members of the Court. Leipzig, 1880. Erskine (John), An Institute of the Law of Scotland. New edition, Edinburgh, 1871. Esperson (P.), Diritto cambiale internazionale. Florence, 1870. Everhardus (Nic, jun.), Consilia. 2 vols. Augustae Vindeli, 1603. Falcke, Ueber die gleichzeitige Staatsangehorigkeit in mehreren deutschen Bundesstaaten. Leipzig, 1888. Feigenwinter (E.), Darstellung und KrUik der Bundesrechtlichen Praxis in Concursfallen, wo der Fallit domicil in mehreren Cantonen hat. Basel, 1880. Feraud-Giraud, De la competence des tribunaux francais pour connaitre det contestations entre Grangers. Jour, de Droit Int. Pr., VII. pp. 137-173, 236-238. V. Feuerbach (Ans.), Themis oder Beitrage zur Gesetzgebung. Landshut, 1812. Field (Dudley), Outlines of an International Code. 3rd edition, New York and London, 1876. Fiore (Pasquale), Diritto internazionale privaio. 2nd edition, Florence, 1874. Fiore (Pasquale), Effeiti intemazionali delle sentenze e degli atti. First Part. Materia civile. Pisa, Eome, Turin, and Florence, 1875. Fiore (Pasquale), Del fallimento seeondo il diritto privato internazionale. Pisa, 1873. Fiore (Pasquale), Trattato di diritto internazionale pubblico. 2nd edition, 3 vols. Turin, 1879. Flimaux, Essai swr les droits des auteurs Grangers en France et des auteurs francais en pays itranger. Paris, 1879. C XXXI V LIST OF AUTHORITIES. Foelix, Train diL droit inUmaiional privi. 4tli edition, revised and enlarged by Ch. Deman- geat. 2 vols. Paris, 1866. Follevillfi (Dan.), TraiU thiorique et pratique de la naturalisation, ititdes de droit interriatiojial privi. Paris, 1880. Folleville (Dan.), Un mot sur le cas de Mine, la Princesse de Bauffremont, aujourdhui Princesse Bibesco. Paris, 1876. Foote (J. A.), A Concise Treatise on Private International Jurispriidence, based on the Becisimis of English Courts. 2nd edition, London, 1890. Fbrstcr (Franz), Theorie und Praxis des heutigen geineinen Prenssischen Privatreehts. 5th edition, by Ecciu.s. Vol. I. 1887. (Cited as Forster-Eccius. ) Francke (Wilh.), Die Entscheidungen ausldndischer Gerichte ilber bilrgerliche Bechtsstreitigkeiten, in ihrer wirksarnkeitnach Deutscliem Eeichsreeht in the Magazine for German Civil Procednre edited by Busch and Vierhaus. 8 vols. Berlin. Fraser (Lord), Treatise on the Law of Scotland relative to Parent and Child, and Guardian and Ward. Edinburgh, 1866. Fraser (Lord), Treatise on Husband and, Wife according to the Law of Scotland. Edinburgh, 1876. Fusinato (Guido), L'esecuzione delle senteme straniere in materia civile e commerciale. Rome, 1884. Fusinato (Guido), Introdusione a un corso di diritto intemazionale pubblico eprivato. Part II. Lanciano, 1885. (Cited as Fusinato, /?i ^'^ Serrschaft der Gcsetzc nach ihren rdumlicJien und zeitlichen Grenzen. Jena, 1863. Schulze (Herm.), Lehrbuch des Deutschen Staatsrechis. Vol. I. Leipzig, 1880. Schuster (E.), Die biirgerliche Reclitspflege in England. Berlin, 1887. Sebastian, The Law of Trade-Marks. 3rd edition, London, 1890. Seuffert (J. A.), Archiv filr Entscheidungen der dbersten GerichU m den Deutschen Staaten. Munich, 1874. Seuffert (J. A.), Oomm. iiber die Bayerische Oerichtsordnung. Erlangen, 1836. Seuffert (L.), Civilprocessordnang fUr das Deutsche Reich, erlautert. 4th edition, Nerdlingen, 1889. V. Sicherer (H.), PersmieTidstand und Ehcschliessung in Deutschland Erlaiiterung des Heichs- gesetzes v. 6 Febr. 1875. Erlangen, 1875. Simon and Strampff, Mechtsspruche der Preussischen Gerichtshofe. Berlin, 1828-1836, 4 vols. Sirey, Mecueil giniral des lois et des arrets en maiUre civile et criminelle. Paris, 1800. One fourth of a volume yearly. Smits(Th. G. TJ.), Internalionaal bswijsreeht in burgerlijke ZaJcen. Amsterdam, 1885. Stair (James, Viscount of, ob. 1695), The Institutions of the Law of Scotland. Ed. Brodie, Edinburgh, 1826. Ed. More, Edinburgh, 1832. Starr, Die Mechtshillfe in Osterreich gegenuber dem Auslande. Vienna, 1878. Stephen, Commentaries on the Law of England. 11th edition, London, 1890. Stobbe (Otto), Handbuch des Deutschen Privatrechts. Vol L 2nd edition, Berlin, 1882. Stockmanna {ob. 1671), Decisiones Brabantinx. Stolzel (Adolph.), Wiederverheirathung eines bestandig von Tiseh und Bett geschiedenen Eheg- aiten. Berlin, 1876. Stork (F.), OjMon und Flebiscit bei Eroberungen und Gebietabtretungen. Leipzig, 1879. Stork (F.), Das Seegebiet und die rechtlichen Grundlagen fiir den Intemationalen Verkehr zur. See in v. Holtzendorff's Sandb. des Volkerrechts, II. pp. 407-550. Stork (F.), Staatsunterthamen und Fremde in v. Holtzendorff's Handb. des Volkerrechts, vol. II. pp. 585-671. Story (Jos.), Commentaries on the Conflict of Laws. 7th edition, Boston, 1872. Strisower (L.), Die Italianische Schule des Intemationalen Privatrechts. Vienna, 1881. Struckmann (J., and Koch, W.), Die Civilprocessordnung filr das Deutsche Reich, erlaiitert. 5th edition, Berlin, 1887. Taylor, A Treatise on the Law of Evidence. 8th edition, London, 1885. Teichmann (Alb.), itude smr Vaffaire de Bauffremont. Basel and Paris, 1876. Teichmann (Alb.), Ueber die Wandelbarkeit und unwandelbarkeit des ehelichen Gilterrechts bei Wohnsitzwechsel. Basel, 1879. Testa (G. IT. E.), De Inhoudder overenkomsten in het internationaal Privaatrecht. Amsterdam, 1886. Thol, Einleitung in das Deutsche Privatreckt. Gottingen, 1851. Thol, Ausgewdhlte Entscheidungsgrunde des Oberappellationsgerichts der vier freien Stadte Deutschlands. Gottingen, 1857. Titius(G.), Juris privati Romano-Germaniei, Libri. XII. Leipzig, 1824. Torres Campos (M.), Principios de derecho intemacional privado. Madrid, 1883. linger (Jos.), System des CEsterreichischen Allgerminen Privatrechts. Vol. I. Vienna, 1853. Vattel (E.), Le droit des gens. Verger (Alb.), Des Mariages contracUes en pays itranger d^apres les principes du droit interna- tional et du droit civil. 2nd edition, Paris, 1883. Voet (J.), Commentarius ad Pandectas (particularly Lib. I. tit. 4, pars. 2, De Statutis). Voet (P.), De statutis eorumque concursu liber singularis. Amsterdam, 1661. V. Voldendorff, Die Concursordnung filr das Deutsche Reich, erlautert. 3 vols. 2ud edition, Erlangen, 1884-1885. Volkmar, Die Jurisprudenz des Rheinischen Cassationhof zu Berlin, 1819-1846. Berlin, 1848. LIST OF AUTHORITIES. XXXIX Wach (A.), Bandhuch des Deutschen Civilprocessrechts. Vol. I. Leipzig, 1885. V. Wachter (0. G.), Ueber die Collision der PrivatrecMsgesatze. In the Archiv fur die civilis- tische Praxis. Vol. XXIV. pp. 230-311 ; Vol. XXV. pp. 1-60, 161-200, 360-469. Wachter (Osk.), Das autorrecM nach dem gemeinen Deutschen Recht. Stuttgart, 1875. Wachter (0&\..), Das Urhehcrrecht an WerJcen der hildenden KUnste, photograpien und geweri- lichen Mustem, nach gemeinem Deutschen Mecht. Stuttgart, 1877. Wachter (Osk.), Das Wechselrecht des Deutschen Reiehes mit eingeJiender JBerilcJcsichiigung der neuen Gesetsgebungen von CEsterreich-Uhgam Belgien, etc. Stuttgart, 1883. Wagner (Rud.) Sandhuch des Seerechts. Vol. I. Leipzig, 1884. Walter, Deutsche Bechtsgeschichte. 2nd edition, Bonn, 1857. Walter, System des gemeinen Deutschen Privatrechts. Bonn, 1885. Woiss (Andre), Traiti iUmentaire de droit international privi. Paris, 1885. V. Wening-Ingenheim, Lehrhuch des gemeinen CimlrecMs. Munich, 1822. Wesel (Abrah. a), Commervtarius ad novellas constitution's Vltrajeetinas. Wesel (Abrah. a), Tractatus de connubiali bonorum societate. Westlake (John), A Treatise on Private International Law. 3rd edition, London, 1890. Westlake (John), Lehrbuch des internationalen Privatrechts mit besonderer Beriicksichtigung der Englischen Gerickts prams von Fr. v. BoltMndorff. Berlin, 1884. (Cited as Westlake- Holtzendor£F. ) Wetzell (G. W.) System des ordenilichen Civilprocesses. 3rd edition, Leipzig, 1878. Wharton (Francais), A Treatise on the Conflict of Laws, or Private International Law. Second edition, Philadelphia, 1881. (Cited as Wharton.) Wharton (Francais), A'Digest of the International' Law'of the United States. 3 vols. Washington, 1886. Appendix 1887. (Cited as Wharton, Z'ig'.). Wheaton (H. ), ^J^Uments du droit International. 2 vols. 2nd edition, Leipzig and Paris, 1852. V. Wilmowski, Deutsche Reichsconcursordnung. 3rd edition, Berlin, 1888. V. Wilmowski and Levi, Givilprocessordnung und Gerichtsverfassungsgesetz fur das Deutseh Reich mit Commentaren. 5th edition, 2 vols. Berlin, 1889. Witte, Die Rechtsverhaltnisse der Ausldnder in Russland. Dorpat, 1847. Windscheid (B.), Pandehten. 6th edition, Vol. I. Dusseldorf, 1887. Woolsey, Introduction to the Study of International Law. 4th edition, 1875. Zacharse (K. S.), HandbuA des Franzosischen Civilrechts. Ziegler, Dicastice, s. de judicis officio. Wittenberg, 1672. TABLE OF DECIDED CASES (British and American). Abd-ul-Messih v. Farra, 117. Adamson, Copin v., 649, 911. Aders, Goetzi;., 102, 104.5, 1047. Advocate, Lord, v. Clyde Navigation Trus- tees, 1068, 1069. Advocate, Lord, Granfelt v., 699-701. Advocate, Lord, Littledale's Trustees v., 261. Agnes Otto, 720. Ainslie v. Murrays, 550, 571. Albion Insurance Co. v. Mills, 592, 663. Alexander v. Badenach, 627. Alexander, Thomson's Trustees i;. , 102. Alloa, Pol. Comm. of. Virtue v., 94. Anderson, Boei;., 822, 832. Anderson's Trustees, Hart v. , 935. Apthorpe, Pommery v., 260. Armour, Todd v., 510, 515. Armstrong v. Stokes, 593. Att. Gen. , Brinkley v., 370. Att. Gen. v. Campbell, 260. Att. Gen. v. Coote, 259. Att. Gen. v. Lepine, 832. Att. Gen., Shaw v., 400. Att. Gen., SuUey v., 260. Att. Gen. v. Thomson, 260. Att. Gen., Wallace v., 260. Att. Gen. of New York, 241. Augusta V. Chilian, 718, 720. Austria, Em p. of, v. Day, 1128. Badenach, Alexander, v., 627. Baillie, Cooper v., 1048. Bain v. Whitehaven & Furness Ry. Co., 864. Balfour v. Scott, 803, 826. Bapty, 935, 937. Barber v. Lamb, 899. Barclay, Young v., 1009. Barios, Sottomayor »., 373. Barr v. Smith & Chamberlain, 937. Barry, Brbdier., 803. Beattie, Jshnstone v., 480, 481. Beaumont v. Oliveira, 822. Becquet v. M'Carthy, 953. Belker, People v., 400. Bell, Kennedy «., 828. xli Bender, Grimshaw v., 670. Bennet v. Inveresk Paper Co., 593. Bennie, Waygood & Co. v., 641, 935. Bertram v. Duhamel, 571. Best, Taylor u, 1085, 1100, 1101. Bethell v. Bethell & Hildyard, 370. Bingham, Ommaney v., 825. Birtwhistle v. Vardill, 440. Bloxam v. Favre, 814, 816. Blumenthal v. Tannenhole, 401. Bookwoldt, Peruvian Guano Co. v. 1008. Boe V. Anderson, 822, 832. Boosey, Jefferys v., 761, 762. Bos, Princess Eeuss v., 241. Beyer v. Dively, 373. Bra^o de Plata Printing Co. , Potter v., 774. Bradbury, 641. Bradford v. Young, 831. Branley v. S. E. Ry. Co., 239, 565. Brebner, St. Patrick Assurance Co. v., 586, 663. Bremer v. Freeman, 102. Bridges, Fordyce v., 936. Briggs, White v., 1047. Brinkley v. Att. Gen., 370. Bristow V. Sequeville, 290. Brodie v. Barry, 803. Brook V. Brook, 371. Brown, Collins Co. v., 790. Brown, Douglas ii., 103. Brown's Trustees, 830. Brunswick, D. of, v. King of Hanover, 1105, 1113, 1115, 1125, 1128. Buchan, Earl of, Vincent v., 120. Buchanan, Ferguson v., 1009. Bullock V. Caird, 240. Burohard v. Macfarlane, 858, 890. Burdekin, Robertson v., 694. Burgess, Gillow & Co. v. 686. Buseck, in re, 814. Bute, Marquis of, v. Lady Bute's Trs., 825. Caird, Bullock v., 240. Caldwell v. Van Vlissingen, 770. Californian Fig Syrup Co., 790. xlii TABLE OF DECIDED CASES. Cammell v. Sewell, 499, 699, 702. Campbell, Att. Gen. v., 260. Campbell v. Campbell (Breadalbane Case), 372. Campbell 1). Hannay, 571. Carbery, Freke v., 824, 826. Carron Company v. Maclaren, 240. Carswell v. Carswell, 114, 404. Cash V. Kennion, 571. Cassadinos, Linn v., 120, 935. Castrique v. Imrie, 699, 702. Cesena Sulphur Co. v. Nicholson, 256. Chalmers' Trs., Newlands v., 506. Charkieh, The, 1126. Chaudiere Gold Mining Co. v. Desbarats, 233. Chavasse, ex parte, 560. Chilian, Augusta v., 718, 720. Christison v. M'Bride, 565. Chun Teeong Toy, Musgrovev., 172, 220. Churchill, Eingeri;., 451. Clark, Kerslake v., 592. Clay V. Stephenson, 856. Claye, Elbinger Actien Gesellsohaft v., 593. Clegg V. Levy, 289. Clements v. Macaulay, 560, 886, 1009. Cloete, 1101. Clyde Navigation Trs., Lord Advocate v., 1068, 1069. Cochrane, 593. Cochrane v. Paul, 1008. Cohen, Scottish Provident Institution i). , 604. Cohen u S.E. Ey. Co., 549, 660. CoUett, Muiru., 240. Collins Co. V. Brown, 790. Collins Co. V. Cowen, 786. Colonial Bank, "Williams v., 656. Colquhoun, Werlei)., 256, 260. Concha v. Marietta, 102. Connell Trs. o. Connell, 817. Constitution, The, 1126. Cook V. Greenock Marine Insurance Co., 663, 734. Cooper V. Baillie, 1048. Cooper V. Cooper, 103, 310, 423. Coote, Att. Gen. v., 259. Copin V. Adamson, 649, 911. Cote, ex parte, 503. Cowen, Collins Co. v., 786. Crofton V. Crofton, 856. Cullen & Co. v. Philp, 559. Cunningham & Co. Ltd., 592. Curtis V. Hutton, 822. Dale V, Dumbarton Glass Co., 287. Davies, Mitchell & Baxter v., 556, 830. Davies, Wallace v., 605. Davies & Salt, Selkrig v., 1046. Day, Emp. of Austria ■!)., 1128. Delaurier v. Wyllie, 592. D'Ernesti v. D'Ernesti, 879. Desbarats, Chaudiere Gold Mining Co. v., 233. Detchegoyen, 402. Dewhurst, Price v., 960. Dickson, Submarine Telegraph Co. v., 639. Disbrow v. Mackintosh, 868. Dively, Boyer'W., 373. Don V. Lippmann, 519, 617, 625, 626. Donaldson v. Ord, 504, 604. Douglas V. Brown, 103. Dowie & Co. V. Tennant, 936. Downie v. Downie's Trs., 506. Dreyfus, Twycrossu., 1112. Drummond, 803. Duhamel, Bertram v., 571. Dumbarton Glass Co., Dale v., 287. Duncan's Trs. v. M'Craoken, 260. Dundas, 823. Dunlop & Collett, Gillon & Co. v., 938. Dutch West India Co. v. Moses, 230. Edinburgh and Glasgow Bank v., Ewan, 594. Edmonstone v. Edmonstone, 432. Egerton v. Forbes, 507. Ehmann, Roth -o., 376. Elbinger Actien Gesellsohaft v. Claye, 593. Elder v. Reel, 403. Emery v. Hill, 832. Enohin v. Wylie, 839. Erichsen v. Last, 256, 260. Ewen, Edin. and Glasgow Bank v., 594. Ewing, see Orr Ewing. Fairholme's Trs. v. Davies & Salt, 1046. Farina, 779, 790. Farnie, Harvey v., 353, 371, 385, 400. Farra, Abd-ul-Messih v. , 117. Favre, Bloxam u., 814, 816. Fenton v. Livingstone, 443. Ferguson v. Buchanan, 1009. Ferguson, Gilbertson v., 256. Ferguson v. Marjoribanks, 832. Fergusson, 482. Fergusson v. Fyffe, 586. Findlater, Sieger d., 791. Fisher v. Sztary, 856. Fitzjames, Meylan v., 281. Flynne, 880. Fogo, Simpson v., 953. Forbes, Egerton v., 507. Forbes, Mags, of Wick v., 938. Fordyce v. Bridges, 936. Forrester, Tennyson v., 762. Franconia, The, 641, 1066, 1068. Eraser, Sinclair v., 868. Freeman, Bremer v., 102. Freke v. Carbery, 824, 826. TABLE OF DECIDED CASES. xliii Fullertou, Einloch v., 627. Fyffe, Fergusson v. , 586. Gaetano & Maria, 712, 715. Gambier v. Gambier, 448, 449. Garbutt, Macartney!;., 1101. Garretty, Wincbilsea v., 803. Gee V. Pritchard, 761. Geiselbrecht, Eannreuther v., 1027. Gelot, Stewart v., 290, 560, 694. General Steam Navigation Co. u Guilloii, 241. Gilbertson v. Ferguson, 256. Gillon & Co. v. Dunlop & Collet, 938. Gillow & Co. V. Burgess, 586. Gladstone v. Musurus Bey, 1127. Gladstone v. Ottoman Bank, 1128. Glas, Palmer & Co. v., 586, 587. Goetze v. Aders, etc., 102, 1045, 1047. Gondal, Thakoor Sahih-of, Eosses v., 102, 455, 641, 1129. Gordon v. Earl of Stair, 332. Grabam v. Eibble, 586. Graham's Trs., Kibble v., 571. Granfelt v. Lord Advocate, 699, 701. Grant v. Healey, 629. Great Australia Mining Co. v. Martin, 925. Great Northern By. Co. v. Laing, 592. Greenock Marine Insurance Co., Cook v., 663, 734. Grimshaw v. Bender, 670. Groenings, Moul «. , 752. Gudin, 903, 924, 937. Guibert, Lloyds;., 595,712, 714, 715,726,727. GuUlemin, 478. Gnillou, General Steam Navigation Co. ■;;., 241. Gumm, Hooper v. 703, Guy Mannering, The, 720. Haddington, Richardson v., 626. Hall, 641. Halley, The, 718, 719. Hannay, Campbell v., 571. Hanover, King of, D. of Brunswick v., 1105, 1113, 1115, 1125, 1128. Harris v. Scaramanga, 732. Harrison v. Harrison, 803. Hart V. Anderson's Trs. , 935. Harvey v. Famie, 353, 371, 385, 400. Hawkins v. Wedderbum, 936. Head, Earl of Stair v., 422. Healey, Grant v., 629. Hellman, 829. Henderson v. Henderson, 960. Hendrick, 732. Hewitt's Trs. v. Lawson, 822, 823, 937. Highland 11311 way Co., Metzenburg v., 660. Hildyard, Bethell v. Bethell and, 370. Hill, Emery v., 832. Hirschfield v. Smith, 684. Hoffmann, Maitland v., 1045. Hog V. Lashley, 419, 828. Hooper v. Gmnm, 703. Hope, 479. Horn V. N.B. Ry. Co., 640, 660. Home V. Eouquette, 694. Hotchkiss, Kirtland v., 246. Huber v. Steiner, 625. Hullet & Widder, King of Spain v., 1113, 1127. Hunter 1). Palmer, 1047. Hutchison, Savage v., 855, 867. Hutton, Curtis v., 822. Immanuel, 727. Imrie, Castrique, v., 699, 702. Ingham v. Sachs, 388. Inglis V. Usherwood, 532. Inland Revenue, Solr. of, Lloyd v., 259. Inland Revenue, Solr. of, Rogers v., 259. Inveresk Paper Co., Bennett v., 593. Jack V. Jack, 402. Jefferys v. Boosey, 761, 762. Johnstone v. Seattle, 480, 481. "Jonge Classina," 120. Jopp V. "Wood, 117. Kaltenbach v. Lewis, 593. Eannreuther v. Geiselbrecht, 1027. Kellogg V. Miller, 582, 583. Kennedy, 938. Eennedy v. Bell, 828. Eennion, Cash v., 571. Ker V. Wauohope, 823. Kerslake v. Clark, 592. Keyn, Queen v., 641, 1066, 1068. .Kibble, Graham v., 586. Kibble v. Graham's Trs., 571. Kimball & Morton, Singer Manufacturing Co. v., 790. Kiuloch V. Fullerton, 627. Kirtland v. Hotchkiss, 246. Krupp, Vavasseur v., 1127. Laidlaw, 936. Laing, Gt. Northern Ry. Co. v., 592. Lamb, 465, 482. Lamb, Barber v., 899. Lariviere v. Morgan, 1127, 1128. Lashley, Hog v., 419, 828. Last, Erichsen v., 256, 260. Lawson, Hewitt's Trs. v., 822, 823. Lawson & Sons' Trs., Phosphate Sewage Co. v., 1045. Lawson's Trustees, 879. Lees V. Paterson, 940. Leon, The, 928. Lepine, Att. Gen. v., 832. xliv TABLE OF DECIDED CASES. Levanton, Union Bank v., 701. Levy, CleggD., 289. Lewis, Kaltenbach v., 593. Lewis, M'Henryu., 1008. Lindsay, Paterson ■»., 1047. Lindsay, Steel u, 113. Linn v. Casadinos, 120, 935. Lippmann, Don v., 519, 617, 625, 626. Littledale's Trs. v. Lord Advocate, 261. Livietta, The, 736. Livingstone, Fentoni)., 443. Lloyd V. Guibert, 595, 712, 714, 715, 726, 727. Lloyd D. Petitjean, 375. Lloyd v. Solicitor of Inland Eevenue, 259. Lloyd Generale Italiano, 241. LoUey, R. v., 90. London & County Banking Co., Picker v., 656. Longworth v. Yelverton, 373. Lord, Moortouse -o. , 114. Low V. Low, 114, 117, 385, 401, 402, 934. ^ Low, Routledge ■!)., 762. Lnhrs v. Times, 212. Macartney v. Garbutt, 1101. Macaulay, Clements v., 560, 886, 1009. Macbride, Christison v., 565. M'Carthy, Becquet v., 953. M'Cracken, Duncan's Trustees v., 260. Macdonald, Lord, 481. M'Dougle, Strachan a, 604. Macfarlane, Burchard^., 858, 890. M'GennisK. Kooney, 938. M 'Henry v. Lewis, 1008. Mackintosh, Disbrow ■»., 868. Maclaren, Carron Co. v., 240. M'Lartyt!. Steele, 640. Maovean, Kobertsan ■«., 826. Macvicar, Pattison v., 903, 904. Maddalena S.S. Co. v. Martin, 1083, 1100. Maitland v. Hoffman, 1045. Maitland v. Maitland, 857, 868. Mallac, Simonin v., 310, 373. Marjoribanks, Ferguson v., 832. Marseilles Extension Railway and Land Co., 693. Martin, Great Australian Mining Co. v., 926. Martin, Peters v., 938. Martin, Maddalena S.S. Co. «., 1083, 1100. Maspons Y. Hermano 'o. Mildred, 594. Mavro v. Ocean Marine Ass. Co., 728, 732. Melville, Preston v., 839, 840, 937. Merchant ■». Banking Co., 937. Metzenburg v. Highland Ey. Co., 660. Meyer v. Ralli, 104, 953. Meylan ■». Fitzjames, 281. Mildred, Maspons Y. Hermano v., 594. Millar v. Mitchell, 592. Miller, Kellogg v., 582, 583, Mills, Albion Insurance Co. v., 592, 663. Milne, "Welsh v., 102. Mingay, Snaith v., 670. Missouri S.S. Co., 660, 727. Mitchell, Miller ii., 592. Mitchell & Baxter -o. Davies, 556, 830. MoUeson, Phosphate Sewage Co. i)., 872. Monies, Wilkinson d. , 587. Monro v. Monro, 441. Monteith v. Monteith's Trustees, 506. Montgomerie, Southgate -y., 903. Moorhouse, Lord v., 114. Morgan, Larivi^re ii., 1127, 1128. Moses, Dutch West India Co. v., 230. Moul v. Groenings, 752. Moxham, The, 637, 639, 719. Muir V. CoUett, 240. Murrays, Ainslie -i)., 550, 571. Murrietta, Concha i7., 102. Musgrare v. Chun Teeong Toy, 172, 220. Musurus Bey, Gladstone ■»., 1127. Napier v. Napier, 372. New York, Att. Gen. of, 241. Newbattle, The, 1127. Newlands v. Chalmers' Trustees, 506. Niboyet, 402. Nicholson, Cesena Sulphur Co. v., 256. Nicholson, Robertson's Trustees, v. 938. N.B. Ry. Co., Horn v., 640, 660. N.E. Ry. Co., Williamson v., 1009. Ocean Marine Assurance Co. , Mavro v., 728. Oliphant, in re, 839. Oliveira, Beaumont v., 822. Oliver 1). Oliver, 761. Ommaney v. Bingham, 825. Ord, Donaldson v., 504, 604. Orleans, D. of, 839. Orr Ewing, 94, 832, 840, 937, 938, 939. Ottoman Bank, Gladstone i;., 1009, 1128. Overmann, Rouquette v., 684, 695. Palmer, Hunter v., 1047. Palmer & Co. v. Glas, 586, 587. Parken v. Royal Exchange Insurance Co., 662. Parlement Beige, 1100, 1126. Parnell v: Walter, 102, 935. Paterson, Lindsay v., 1047. Patrick v. Shedden, 904. Patterson, Lees v., 940. Pattisson v. M'Vicar, 903, 904. Paul, Cochrane v., 1008. Paul V. Roy, 904. P. & O. Company, Shand v., 660. People V. Belker, 400. Peruvian Guano Co. v. Bockwoldt, 1008. Petitjean, Lloyd v., 375. TABLE OF DECIDED CASES. xlv Peters v. Martin, 988. Philp, CuUen & Co. v., 559. Phosphate Sewage Co. v. Lawson & Sons' Trustees, 1045. Phosphate Sewage Co. v. MoUeson, 872. Picker v. London & County Banking Co., 656. Pitt V. Pitt, 402. Pommery v. Apthorpe, 260. Portugal, Queen of, Rothschild v., 1113. Potter V. Bra^o de Plata Printing Co., 774. Preston v. Melville, 839, 840, 937. Price & Logan v. Wise, 586. Price V. Dewhurst, 960. Pritchard, Gee v., 761. Purvis' Trustees v. Purvis' Exra., 287, 816. Queen v. Keyn, 641, 1066, 1068. Queensland Mercantile & Agency Co., 605- 607. Ralli, Meyer v., 104, 953. Eatcliff, 401. Bead, Strotheri)., 1045, 1046. Bedding v. Bedding, 118, 174, 385, 386, 403. Eeel, Elder v., 403. Beg. V. Lolley, 90. Bcuss, Princess, v. Bos, 241. Bichardson v. Countess of Haddington, 626. Ringer v. Churchill, 451. Robertson v. Burdekin, 694. Robertson v. Macvean, 826. Robertson, Wilson v., 904. Robertson's Trs. u. Nicholson, 938. Eobinow v. Marjoribanks, 732. Bobinow, Sim u., 1010. Robinson & Niven, Schulze v., 702. Eogers v. Solr. of Inland Revenue, 259. Booney, M'Gennis i)., 938. Rosses V. Thakoor Sahib of Gondal, 102, 455, 641, 1129. Both v. Ehmanii, 379. Rothschild, Queen of Portugal v., 1113. Eouquette, Home v., 694. Bouquette v. Overmann, 684, 695. Eouth, Walworth v., 625. Routledge ■;;. Low, 762. Roy, Paul v., 904. Eoyal Bank of Scotland v. Ass. of Stein, Smith & Co., 406, 1046, 1048. Eoyal Exchange Insurance Co., Parkeu v., 662. Sachs, Ingham v., 383. St Patrick Ass. Co. v. Brebner, 586, 663. Santos, 559. Saul V, his creditors, 307, 311. Savage v. Hutchison, 855, 867. Sawyer v. Sloan, 332. Scaramanga, Harris r., 732. Schulze V. Bobinson & Niven, 702. Scott, Balfour v., 803, 826. Scott, Tayler v., 288. Scott, Valery v., 288, 552, 561. Scottish Provident Institution v. Cohen, 604. Segredo, The, 715. Selkrig v. Davies & Salt, 1046. Sequeville, Bristowi;., 290. Sewell, Cammelli)., 499, 699, 702. Shand v. P. & O. Co., 660. Shaw V. Att. Gen., 400. Shedden, Patrick v., 904. Sieger v. Findlater, 791. Sim V. Eobinow, 1010. Simouin v. Mallac, 310, 373. Simpson v. Fogo, 953. Sinclair v. Fraser, 868. Singer Manufacturing Co. o. Kimball and Morton, 790. Sisters, The, 702. Sloan, Sawyer v., 332. Smith, in re, 641, 928, 940. Smith, Hirsehfeld v., 684. Smith V. Weguelin, 1112, 1127, 1128. Smith and Chamberlain, Barr v., 937. Smiths, 830. Snaith v. Mingay, 670. Sottomayor v. Barios, 373. S.E. Eailway Co., Branley v., 239, 565. S.E. Eailway Co., Cohen v., 549, 660. Southgate v. Montgomerie, 903. Spain, King of, v. HuUett & Widder, 1113, 1127. Stair, E. of, Gordon v., 332. Stair, E. of, v. Head, 422. Stavert v. Stavert, 114, 401, 402, 934. Steel V. Lindsay, 113. Steel V. Steel, 120. Steele, M'Larty u, 640. Steer, in re, 114. Stein, Smith & Co., Ass. of, -o. Eoyal Bank, 406, 1046, 1048. Steiner, Huher v., 625. Stephenson, Clay v., 856. Stettin, The, 727. Stewart, in re, 839. Stewart v. Gelot, 290, 560, 694. Stokes, Armstrong i;., 593. Strachan v. M'Dougle, 604. Strathmore, Countess of, 372. Strother v. Bead, 1045, 1046. Stuart V. Stuart, 94, 480. Submarine Telegraph Co. v. Dickson, 639. Sulleyy. Att. Gen., 260. Sztary, Fisher v., 856. Tannenhole, Blumenthal v., 401. Tayler v. Scott, 288, 6C4. Taylor i;. Best, 1085, 1100, 1101. Tennant, Dowie & Co. v., 936. xlvi TABLE OF DECIDED CASES. Tennyson v. Forrester, 762. Thompson, Whitehead u., 903. Thomson, Att. Gen. ■»., 260. Thomson's Trs. v. Alexander, 102. Times, Luhrs v., 212. Todd V. Armour, 510, 515. Trevelyan v. Trevelyan, 628. Trotter, 823. Twycross v. Dreyfus, 1112. Udny V. Udny, 117, 120, 199, 310, 441. Union Bank, Levanton v., 701. Usherwood, Inglis i)., 532. Valery v. Scott, 288, 552, 561. Van Vlissingen, Caldwell v., 770. Vardill, Birtwhistle «., 440. Vavasseur v. Krupp, 1127. Vignier, 790. Vincent v. Earl of Buchan, 120. Virtues). Pol. Commrs. of Alloa, 94. "Walker, etc., 937. Wallace v. Att.Gen., 260. Wallace v. Davies, 605. Walter, Parnell v., 102, 935. Walworth v. Kouth, 625. Warrender v. Warrender, 370, 401, 613. Watson, 904. Wauchope, Ker v., 823. Waygood & Co. v. Bennie, 641, 935. Wedderburn, Hawkins v., 936. Wedderburn v. Wedderburn, 1008. Weguelin, Smith ■»., 1112, 1127, 1128. Welsh V. Milne, 102. • Werle v. Colquhoun, 256, 260. White V. Briggs, 1047. Whitehaven and Furniss Ky. Co., Bain v., 864. Whitehead ■». Thompson, 903. Wiok, Mags, of, v. Forbes, 938. Wilkinson v. Monies, 587. Williams i;. Colonial Bank, 656. Williamsons. N.E. Ry. Co., 1010. Willoughby, 479. Wilson V. Robertson, 904. Wilson V. Wilson, 401. Winchilsea 1). Garetty, 803. Wise, Price and Logan v., 586. Witherington, 641. Wood, Jopp 1!., 117. Wylie, Enohin'K., 839. Wyllie, Delaurier 1). , 592. Yelverton, Longworth v., 373] Young V. Barclay, 1009. Young, Bradford I!., 831. EEEATA. Page 114, note 8. The reference to the case of Low v. Low is Ct. of Sess. Eeps., 4th ser. xix. 115. Page 117, note 23. Correct the reference to the case of Low v. Low as above. Page 212, note 12. First line, for " Timer" read " Times." Page 260. Fifth line from the foot of the page, for "E. & J. App." read " E. & I. App." Page 260. Third line from the foot of the page, after " Ct. of Sess. Eeps." insert - " 4th ser." Page 385, note 20. Third line from the foot of the page, after "4th ser.'' insert "xix." Page 402. Fourteenth line from the foot of the page, for " 75 " read " 78." Page 568. Twelfth line, for "premitentm" read " posnitentice.'' Page 597. First line of § 271, for "mandant" read " mandate." Page 607. At the beginning of the eleventh line insert a square bracket. Page 701. Fourteenth line, for " Lenanton " read " Levanton." Page 717. Second line of § 327, for "Anscglimg" read '^ Anseglung." Page 839. Seventeenth line from foot of the page, for " Enohim " read " Enohin." Page 1112. Twenty-ninth Hne, for "raiionce" read "ratione." INTER]^ATIO]N^AL LAW jfirst aBooft. THE OBJECT AND THE SCOPE OF PEIVATE INTEENA- TIONAL LAW: ITS HISTOEY AND GENEEAL THEOEY. I. THE OBJECT AND THE SCOPE OE PRIVATE INTER- NATIONAL LAW. § 1. As soon as the citizens of different States or communities^ begin a lawful traffic with each other, it must be determined in one way or another whether the rules of law^ which are recognised in one particular State or community are to be applied to their legal relations,^ and to what extent they are to be so applied. To find the answer to this group of questions is the task of private international law. It may also be said : Private inter- national law determines the limits of the application of the legal systems of different States in private legal relations ; and, again, as the jurisdiction of State authorities — courts or magistrates — which may trench upon private legal relations, depends upon the applicability of the legal system, it may be put still more clearly thus : Private international law determines- the applicability of the legal systems and the jurisdiction of the agencies — the courts and magistrates — of different States in private legal relations.* ' We say "or communities," because questions often arise as between provinces, cities, and even communes, whicli belong to one and the same State, but have different systems of law. '■^ We say "rules of law" advisedly, for assuredly it matters not whether we have to deal with statutory law or customary law. When we speak hereafter of the "laws" (Gesetze) of a State, that is understood to include customary law and the practice of the courts, which to some extent supplies the place of positive law. '^ A process or suit is a legal relation, and hence the international application of the maxims which belong to the law of process is part of the subject with which private international law deals. * We say " private legal relations," and not "legal relations of private persons," because we may have to deal with the legal relations of a State, in so far as a State enters into private legal relations ; while, on the other hand, a private person may have legal relations which must be exclusively determined on principles of public law, the law of nations in the narrower sense. A 2 bar's international law. [§ 1 It is plain that, if there is to be auy orderly and secure intercourse among the citizens of different States, an indiscriminate application of the native law of that State alone to which the court that happens to have to determine the suit belongs, would lead in many cases to a simple denial of the rights of the foreigner, and even of the native citizen himself, or in other words, would deprive international intercourse of all legality. Would that not be the case if a marriage contracted abroad between foreigners, or the acqiiisition in some foreign country of a thing that was situated there, should be refused recognition simply on the ground that our law requires different forms for the celebration of marriage and the acquisition of property from those which are prescribed abroad ? If we wish to secure persons and things in their intercourse with our country, we must to a certain extent — how far, need not in the meantime be discussed — allow these persons and things to come in among us with a certain legal character, i.e. with the legal character which the foreign law has given them. On the opposite view we should simply deny all virtue to the legal community to which these persons and things once belonged, or, in other words, deny that this foreign legal community was a legal community or a State at all. Private International Law and the Laws of particular States. § 2. These remarks have already shown that the rules of private international law cannot possibly be dependent merely upon the arbitrary determination of particular States. The State cannot assert the competency of its own legal system in absolute independence of other States, and in the face of their sovereign rights, which are of as much weight as its own. Such a claim will most assuredly be met by certain limitations belonging to the law of nations,^ e.g. by the proposition that no State can exercise a power of compulsion within the territory of another. The same considerations also prove private international law to be an independent department of law; it is not, as Lorimer® has recently of new af&rmed, merely a part of the domestic law of each State. In the abstract, every State can determine its own legislation as it pleases; the effect of its laws upon legal relations, which have any 5 Of. Bar, Milnchener Kritiiche VierleljahrssAriftfiir Gesetzgebung und RccUswlsscnschaft, 15 (1873), p. 1 d seq., also pp. 5, 6 ; and Stobbp, i. § 29 (i.), jip. 199, 200 ; Fiore, i. No. h\ Martens, ii. § 68. Brinz expresses himself most pointedly and cleverly as to this principle of the law of nations {Pandedeii, 3 Aufl. i. p. 23, i. p. 319 et seq.) ; in the same way Hiirrison J. de dr. 7, p. 417 et seq. See, too, Bard in his preface. " Lorimer's view (i. pp. 349 et seq.) seems all the more astonishing, as he admits that the separate treatment of private international law is to be recommended, and describes it as the "doctrine of jurisdiction," and as he very properly lays it down that the development of private international law is certainly not to be obtained exclusively by means of the courts of the various States through actual processes, but that its propositions of law of themselves regulate men's lives and commerce. Bard thinks that by means of treaties the principles of inter- national legal maxims belonging to the domestic law of each separate State may assume the § 2] RELATION TO MUNICIPAL SYSTEMS. connection with a foreign country, will he determined by the nature of the subject — i.e. by the requirements of an orderly and lawful intercourse, and by the respect which is due to the sovereign power of other States. The false impression that private international law is only the domestic law of each separate State, and that it is impossible for us to set up rules that are generally recognised for the intercourse that is nowadays carried on among civilised States, proceeds on the one hand simply from the fact that the courts of the different States, subject as they are to their own legislature, must follow the directions of that legislature as to their own jurisdiction, even when these are mistaken ; ' and arises on the other hand from the extraordinary difficulty and doubt that belong to very many of its questions. In particular cases which happen to fall under the jurisdiction of the courts of this or that State, these courts will recognise only that theory of jurisdiction in international questions', which is peculiar to the law of their State; and just because of the doubts and difficulties of particular cases, we find that many blunders and encroachments by this or that system of law, and this or that State authority, are acquiesced in in the intercourse of nations, that is to say, so far as public law is concerned. But if it can be shown that these mistaken decisions on jurisdiction are errors and blunders,^ then in the end the pressure of the general conviction on the subject, working along with the might of commercial intercourse, will force them out of the way. Besides, since the instructions of the legislatures of the different States as to the international application of their maxims of law are not, as a rule, very detailed or excessively distinct, there is, as a matter of fact, a very considerable field for the operation of a general theory of the proper determination of such questions of jurisdiction. If the independence of so-called private international law as against the laws of each particular State is denied,^ it follows that on the same ground the existence of a number of principles which unquestionably belong to public law, such as the extra-territoriality of sovereigns, ambassadors, etc., must be pronounced to be doubtful,^" because there may be some State that has adopted these character cf true internatioual law. This view falls with the theory that nothing is law which does not rest upon an express declaration of the legislative powers. Is that not also law, which necessarily corresponds to the nature of the subject ? Dicey, in his law of Domicile, Introduction iv. v., says that the propositions of so-called private international law are, in so far as inter- national, not law in its strict sense. ' Cf, the judgment of the old German Imperial Commercial Court, of 3rd January 1878 {Seuffert, 33, No. 184), which holds that the lex fori can alone prescribe the application of foreign or domestic law by the judge. ^ Cf. Wharton, § 1. "Private international law is binding not because it is enacted as a code . . . but because it is ascertained as a logical inference fi-om the conditions of each case. ^ In the most extreme cases, e.g. in cases where an undoubtedly perverse application of the law of any particular State would result in the direct spoliation of foreigners, it may be that the remedies of public law will be used against such stretches of competency. But this is not easily brought about, because, as Lorimer himself observes, the jurisdiction and the legal system of every State is entitled to the presumption of honest intention in these matters. ^^ Keinh. Schmid. p. 22, in the same way as Lorimer. 4 bar's international law. [§ 3 principles in its territorial law in a very faulty or fragmentary form, while, of course, its courts and officials are bound by that faulty form. Possibility of a General Theoky of Private International Law. § 3. It is not, of course, possible to set up a general theory of private international law in such a way that it shall not constantly require to be supplemented in view, on the one side, of the new propositions of law that are constantly arising in the various States, and on the other of the innumerable host of legal propositions that are now in existence side by side with each other. It is only a fraction of these, the applicability of which to international questions can be directly tested even in a compre- hensive work. But yet the task of private international law does not sink to that of a mere statistical treatise on law, and an incomplete treatise too. The applicability of territorial rules of law to international questions is measured by certain general and typical characteristics ; the international application of one proposition of law may be settled without further enquiry, if the application of a cognate rule is known; the difficulty frequently lies simply in testing a proposition of law with a view to seeing whether, in its international application, it is not to be broken up into more than one rule, one of which has an universal operation in international intercourse, while the other can affect only such things as are found in the territory of the power that made the rule of law. For example, the difficulty may be in testing whether a document, which in its own country at once gives rise to a real right, does not, in a foreign country at least, give rise to a personal obligation to provide the person who holds the document with a real right, in conformity with the forms that are recognised at the place where the thing is. The eye of the jurist, by long practice, of course grows keener to mark such applications of legal maxims by way of analogy, and to discover their various relations to the system of real or of personal rights prevailing in any particular territory, and to its police regulations or its public order, which must be maintained at all hazards. And thus, where at first nothin" was to be discovered but conflicts of legal systems and sovereign rights, amidst which it seemed that the security of commerce, and even the happi- ness and comfort of many individuals must suffer most grievously, there is often ascertained subsequently to be a complete harmony of legal system. We often ascertain, in such cases, that it cannot, for example, reasonably be held to be the view of one legal systein, that the case in question should fall to be governed by it, when it is already, in accordance with the expectations- of commerce, regulated by the other systems. It is not, however, meant that there are not real cases of conflict. They are, however less numerous than might be imagined upon a superficial view of our problem. The logic of jurisprudence has not, however, the same certainty as. § -1] POSSIBILITY OF A GENERAL THEORY. belongs to mathematical reasonings. Accordingly, a guarantee for the correctness of juristic arguments has long been found in the fact that tried authorities, writers, and tribunals have reached the same results. This respect for authority is, however, of special importance in the region of private international law ; for there, because of the very scarcity of legisla- tive utterances on the international application of legal propositions, and occasionally also because of their dubiety, we enjoy considerable freedom in forming deductions from the nature of the subject in hand, which have also a large possibility of error. It is, therefore, the authors of highest repute in the domain of private international law who have laid great weight upon the citation of other authorities.^^ On the other hand, writers who have set about their task with the a -pnori logical method alone, have undoubtedly missed the right road. Citations, carefully collected and critically examined,^^ are, in private international law, no pedantic display, but an absolute necessity, if any certain results are to be attained, and it is hardly possible to reach a tenable position by this means without considerable labour.^* On this ground,^* it is not advisable to set up a complete theory of private international law as an episode in working out some particular system of law which has not much comprehensiveness.^^ But, at the same time, there is no doubt that authors engaged in working out particular systems of law may do a real service to the development of private international law by bringing into view and illustrating some details.^® Eeal Validity of Private International Law. Law of Custom. § 4. It can be demonstrated that there is to a certain extent a real communis consensus of civilised States, a true law of custom.^^ That is ^ The deliverances of legislatures count as authorities. ■•^ Special care is nece.ssary in the nse of the decisions of courts, which, from their enormous bulk, are specially important. It often happens that the decision is arrived at in view of the peculiar circumstances of the case on some ratio, which is only dimly, if at all, to be found set forth in the formal grounds of judgment. '^ Fusinato (Iwtroduzione, pp. 7, 8) pleads in eloquent words for the independent treatment of private international law. He puts it that only in that way, and not by being discussed within the confines of the legal system of the particular State, can that commanding position be attained, from which the legal system of each State can have its proper place assigned to it, and those deplorable conflicts may be avoided, in consequence of which the same actual state f relations is recognised in one state as legal, in another is looked on as invalid. ^^ Thus e.g. the works of Th. Piitter Das praktische (!) Europaische Fremdenrecht (1846), and of L. Pfeiffer Dasprincip des Internationales Privatrechts (1851), are utterly worthless. " Thus, for example, even Bohlau, in his work on the land laws of Mecklenburg (1871), i. pp. 420 et seq., has missed the right path. See e.g. on pp. 435, 436, the authoritative disposal of the problems— which in truth are not so simple— of the treatment of Res Judicata, and the carrying out of civil judgments in international commerce. " There is, however, no objection to a summary exposition of private international law in a, handbook of common law. But it is dangerous on such an occasion to lay down in a couple of lines or pages a new theory, or enter upon a criticism that goes to the root of the subject. I' R. Schmid. (p. 24 et seq.), on very unsubstantial grounds, is for denying the possibility of such customary law. "Was the reception of the Roman law at the end of the Middle Ages limited in any sense by the boundaries of the individual States ? 6 bar's international law. [§ 5 e.g. distinctly the case with regard to the rule known to all, that a legal transaction, putting special exceptional cases aside, will be universally regarded as validly concluded so far as form is concerned, if it answers to the form which is required by the law of the place where the transaction takes place. Locus regit actum. Of course, every State has, in the abstract, the power of denying effect within its own territory to such a law of custom. But up to that limit the general law of custom, if it can really be shown to be such, will be recognised in the individual States. A law of custom is simply the instinctive development of right, tied down to no particular form, and this instinctive development does not draw its virtue from the will of the State. We cannot admit the objection, therefore, that there can be no such thing as a general law of custom, with reference to the rules of private law, for the whole of the civilised world. The boundary of the State has this significance merely, that it can deny effect to such universal propositions of customary law, a denial which, as a rule, will draw down upon itself and its citizens considerable disadvantages. Independent Treatment of Private International Law. § 5. As a matter of principle, no objection can be taken to the con- junction of private international law with public law. There are indeed subjects which are common to both— «.^. the doctrines of allegiance and extra-territoriality, and on this ground it might seem desirable to treat them together. But in that case, private international law could on no account be represented as an entirely subordinate division of public law.i^ It would be, as a matter of principle, correct to take up public law and private international law together, under the description " international law." But in that case a division must be made into — \st, the international law of States (public law) ; 2nd, the international law of private persons ; Zrd, inter- national criminal law ; and Wh, international law of process, both civil and criminal.i9 But there is this difficulty in the way of combining private international law and criminal law with public law, viz. that private international law (including in it criminal and process law) is in itself a most comprehensive subject, and for this reason may get rather scant justice in such an arrangement. Besides, it is not every one who is an authority on public law properly so-called, who has also a knowledge of 18 As, for instance, when private international law is disposed of in a brief chapter on the legal relations of foreigners. Phillimore discusses private international law as a special fourth part of his "International Law," and v. Bulmerincq deals with international law private criminal, and processual, under the title, "Die. Concessionen der Staaten zu Gunsten der Internationalen Rechtsgemeimchaft; " and Martens has recently discussed the same subjects in the second volume of his ' ' Public Law, " in the chapter, ' 'Die internationaU Verwaltunq imGebiete der rechtlichen Interesscn der Individuen imd Volker." These authors however give a com paratively comprehensive and thorough exposition. They cannot be chlrged with overlooking the practical importance of private international law. " To this would require to be added some common doctrines, e.g. the doctrine of allegiance. § 6] TITLES FOli THE SUBJECT. private law sufficient for the treatment of private international law, or has the necessary experience in dealing with disputed, points of private law. Different Titles for "Private International Law." § G. According to strict logical interpretation, the title " Private International Law" cannot be altogether approved, and has frequently been challenged. If would be more exact to call it, "The international legal treatment of private persons;" for "Private International Law" seems at first sight to point to the relations of different States or nations, as such, in matters of private law. But the expression, " The international legal treatment of private persons " (or, to be still more exact, " of legal relations in private law ") is somewhat cumbrous, while on the other hand a title which is not strictly correct does little harm, so soon as it is generally known what is to be understood by it. Other titles which have been given or suggested are either exposed to still graver objections, or have met with still less general approval. Thus, as Savigny (pp. 3 et seq. § 344, Guthrie, p. 48) has already pointed out, the title of " The Collision " or " Conflict " of laws or statutes which at one time was universally given to our subject, and in more recent times is still used by a section of English and North American jurists, gives rise to a rival but a mistaken conception of the subject. That title assumes that, so soon as a question as to the application of the laws of different States to the particular case comes up, these laws will always come into collision. Now it is quite possible that they should all be in harmony, and should all commit the decision to the same legal s}stem, and to the same tribunal. As a matter of fact this is what gene- rally happens, even in cases which are apparently the most complicated, as we shall perhaps be able to prove in the sequel. Collisions of law are, as Savigny pointedly remarks, in their nature secondary and subordinate questions. A conflict of laws is not caused by the difference of the laws which may possibly be applied to any particular case, but arises only when the legal systems of different States, differing among themselves, all claim that a particular case shall be submitted to their own jurisdiction. That, however, there are cases of this latter description we do not, as has been said, propose to deny. Savigny and numerous German writers following him^" use the ex- pression, " local limitations of the rules of law." But, if it is admitted tliat there are certain rules of law which accompany the person every- where — that the law of our State must, for instance, be frequently applied by a foreign judge, we have ground enough for holding that a title, which makes the scope of the operation of a rule of Jaw in international intercourse '" So Gerber, D. Privatr. § 32. Windscheitl, Pandekten, i. § 34. Unger, Oestcrr. Privatr. i. § 22. Stobbe, D. Privatr. i. § 29. (Dernburg, Pandnkten, i. § 45, has on the other hand, under the general division, "The scope of legal rules in time and place," the subdivision, "Private International Law.") 8 bar's international law. [§ 6 appear to be local, is not exactly appropriate. On the contrary, one would rather be disposed to speak of the movement of the rule of law with the person or thing to which it belongs into foreign states, so that, as a matter of fact, the place where the thing or the person may subsequently be found would be of no consequence. But, apart from- this, the expression is seen to be inadequate, if, as is the case with Savigny, domicile and allegiance are drawn into the circle of discussion, since the whole subject of these doctrines is the enquiry whether and to what extent a particular person, without regard to his local situation, belongs to the jurisdiction of this or of that State. In some treatises (e.g. Thol, Einl. in d. D. Frivatr. Eichhorn, D. Frivntr. §§34 et seq.) the subject is treated under the name, "Eelations of the sources of law " (more accurately, " of the co-ordinate sources of law"). This expression is no doubt correct, if the enquiry is coniined to substanl ive private law, and it is justified in the textbooks mentioned, because this is the restriction which they accept. But it is not suited for an enquiry wh ch embraces the law of process along with other subjects : for instance, i he subject of the execution of foreign judgments can not, it is certain, be brought under it. It cannot, besides, be left out of account, that this title, although it is quite intelligible as the heading of a chapter in a treatise on German private law, is exposed to much misconstruction, if it is used as the title of a monograph. Holland ^^ has recently proposed the title, " Extra-territorial recognition of rights," but as yet he has not gained any general approval for it. The expression hints too plainly at a particular theory of international law, which is much disputed — the theory of the recognition of vested rights ; and again, as we have said, in all such questions the point is not simply absolute correctness, but also handiness.^^ After all, we shall do best to stick to the expression, " Private Inter- national Law." "We know what we are to understand by it, and it undoubtedly prevails in the jurisprudence of France and Italy, while in the scientific literature of other nations it is upon the whole more used than any other.^^ We must, of course, remember that the questions, with which private international law is concerned, may come up in the relations of the systems of law in different provinces, towns, or localities of one and the same State. 21 Revue, xii. p. 574 [see also Holland's "Jurisprudence,- p. 288]. So, too, Torres Campo.s pp. 31,32. Theexpression proposed l)y Harrison, "international law," is altogether inadequate' See, in ciiticism of it, Holland ut cit. 22 Lomonaco and Laurent say, " Civil international law." See Asser Rivier p 4 note 1 against this, and generally on the different titles. The expression "civil law "'taken strictly' excludes commercial law and the law of process. ' ^ In this sense see also Fusinato, Introduzione, p. 9. § 7] EXISTEACE OF THE SCIENCE. Is THERE AT PRESENT A COMPREHENSIVE SCIENCE OF PRIVATE INTER- NATIONAL Law? Treaties dealing w^ith Questions of Private International Law. § 7. But there is a more important question than the question of title, ^•iz. the question whether we can speak of the existence of a science of private international law. If we were to believe the occasional deliverances of some authors,^* our science would be in a bad way. But, so soon as it is admitted that deductions from the nature of the subject in hand, although they are not specially enacted by the legislative power, are yet indeed law, we shall find that there is much that rests upon pretty firm founda- tions, and on close inspection it will often be discovered that, in the various decisions and opinions, the real difference is much slighter than it seemed from the inadequate or abrupt statement of the grounds on which they are rested. If we were to think of dating the origin of the existence of private internatioiial law, or the science of it, from the moment at which, by international treaties, everything should be so precisely regulated that we could deduce our decisions from them as from a complete code,^^ we should be forgetting that, in the most and weightiest questions, the lawgiver and the diplomatist can do for private international law little besides furnishing with statutory force ^^ the deductions which are drawn from the nature of the subjects dealt with. For there is no department of law in which caprice leads more easily to an absurdity than in the department of private international law, in which the power of the lawgiver comes into collision with certain barriers of public law. And although it is often possible by statute or by treaty to bar judicial decisions from wandering off the right path, on the other hand the mistakes of the legislator or the diplomatist are all the more fatal. A free practice and science correct their own errors much more easily in a region like this, where deductions from the nature of the subject in hand are the prevailing force. It would be no difficult matter to bring examples of this. Wharton ^'^ is right in declaring himself recently to be against the possibility and the profit of a comprehensive codification of private international law. On the other hand, some authors, chiefly French and Italian — but only a minority, be it understood — too much used ^ Thus Laurent, 1, § 3, declares that the existence of a private international law is very prohlematical. But to point to the discrepancy between different judgments on a single case, or even on several difficult cases, is not enough to justify his assertion. See, too, p. 40. " Notre science mcnt d, peitie de naire." ^ Cf., too. Beach Lawrence, 3, p. 65. " Le droit International privi n'en existepcs mains, quoique sur quelques points mi ne rencontre pas une conformity de vues parfaite. II en est de m^me dans le droit international public Mais parce qu'il n'y a pat un accord stir tous Us points, il ne s'en suit pas que la conformity ne scit itablie." 28 Daireaux lays down correctly (J. xiii. p. 418) that treaties on questions of private international law are often very useless. Besides, there are treaties with very indistinct, and therefore mischievous provisions. ^ Commentaries on law, Philadelphia 1884, p. 195, Note. lo bar's international law. [§ 7 to the leading strings of what professes to be a complete codification, and too much swayed by the abstract idea that judicial authority has nothing to do but to carry out the will of the legislator, which has some- how already been determined, seem unwilling to believe that there can be any real established law without such codification.^* We do not dispute the advantage of public treaties for certain points of private international law ; these are points in which the question is not as to deductions from the nature of the subject, starting from doctrines wliich have been already settled by the municipal laws concerned, but where there is a question as to taking up fresh points of departure altogether, as to which ' there is room for difference of opinion : an example would be the determination of the nationality or allegiance of a person. But in private international law it is specially necessary that the main work should be left to a free science. With every new law in each different State, new problems may emerge. Treaties and statute law would often be unable to give assistance before it was too late ; and, on the other hand, science, if she were too much confined by positive law and had forgotten her free move- ments, would only be able to do her work in a satisfactory manner now and again. Stimulated by Mancini, and partly under his direct guidance,^^ the kingdom of Italy has entered upon diplomatic negotiations since ISeT with a great number of States, in order to reach a comprehensive system of private international law as generally recognised as might be ; but as yet no appreciable result has been attained. The replies of the Ministers of Justice and Foreign Affairs in the most important and the majority of States recognise, it is true, the most praiseworthy exertions of the Italian Government, but by holding back they prove the truth of the opinion we have just pronounced as to the operation of international treaties in the region of private international law. In the year 1870, negotiations took place between Spain and France with a view to a comprehensive treaty for the regulation of private and process international law in these two States. The idea came from the Spanish minister of that day, Manuel Silvela, and was eagerly adopted by the French premier at the time, Ollivier, without, however, resulting in anything. In 1878 a congress of the jurists of Central and South America^CPeru, the Argentine Republic, Chili, Bolivia, Ecuador, Venezuela, and Costa Rica) at Lima worked out a comprehensive treaty for private international law -« Thus Laurent, i. p. 79, assigns in theory a much too narrow task to the science. Happily he has not allowed that to prevent him from giving us, from points of view most freely taken up, very valuable discussions, which he considers, in spite of his theory, to be immediately applicable. And, on the other hand, Laurent himself explains excellently the difficulty of concluding treaties on points of private international law in a comprehensive way » Cf. NegoziatidaGovemoItaliano . . . per norme convenzionali di dvritto internazionaU privato . . . Soma. Ttpografia del/a Camera dei deimtat. 1855, and Atti Parliamentarii LegUlatura xv. Uocimenti diplomatici, 1885. These publications of the Italian Government' which, as is well known, were liberally made available to scientific men, deserve at least the gratitude of all who are concerned with private international law. 8] ROMAN LA W. I I and legal remedies for the contracting States, which in many aspects deserves recognition. In particular, so far as the equality of foreigners and natives before the law is concerned, it rests on very liberal principles; but it contains nothing at all as to the acquisition and loss of citizenship, one of the most important subjects, and one that particularly stands in need of regulation by treaty. I am not aware whether, or to what extent, the treaty was definitely adopted and put in operation.^" TI. HISTOEY. a. roman law. The Authokities of Justinian. § 8. Many attempts used to be made to find, in the authorities of the Eoman law, general principles for the application of the laws of different countries, but with very scanty success. Commentators and authors of later times have hung discussions of their own on the conflict of laws upon isolated passages, especially 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 which they cite. The discussion, for example, instead of being appended, as was generally the case, to the words, " Cimctos popidos, quos clementiae nostrae regit imperium," might have taken place just as appropriately on any other passage. For nothing at all can be drawn from these words save that the emperor can only proclaim laws for the peoples whom he rules, a proposition for which we need not seek authority in the Corpus Juris. All that can be proved is as follows : — Original Outlawry of Poreignees, but recognition of the Legal Exist- ence OF Foreign Governments. Friendly States. Eecupeeatoees. § 9. Like the peoples of antiquity generally,^ so too the Eomans^ viewed their law as exclusively national. That is to say, it seems to them to be applicable only to their own countrymen, and on the other hand not to be applicable to things or to persons who, unless in the enjoyinent of such special privileges as ambassadors enjoyed, actually found themselves in the ^ The treaty, along with the report of tlie Peruvian plenipotentiary, Dr Antonio Arenas, is given in a German translation in the Zeitschrift fiir des ges. HanddsrccM, vol. 25 (1880), pp. 544 et seq. ; in an Italian translation in the Docwinent. Dipl. cited in the last note, p. 197. Of. Torres Campos, pp. 311 et scf. ^ As to the Jews, see Lomonaco, pp. 12 et seq. Durand, pp. 3 et seq. While the books of Moses require hospitality and friendly treatment for the individual foreigners, on the other hand they approve of wars of extermination against whole peoples. On Grecian law and customs, see e.g. K. F. Hermann, Lehrbuch der Griechischen PrivatalterthUmer, 2nd Ed. by Stark, 1870, §§ 52, 56, and 58. On the peoples of antiquity generally, see Pierantoni Trattato, vol. i. p. 1 and p. 348. 2 Cf. Padelletti Lehrb. d. rOm. Eechtsgeschiehte, German Ed. 1879, p. 164, and more specially Karlowa Bbm. Bechtsgesehichte, i. § 44, pp. 279 et seq. Laurent, i. pp. 667 et seq. 12 BAIi'S INTERNATIONAL LA IV. [§ 10 dominions of a foreign people,^ with whom the Eomans had no special friendly relations known as amicitia orfoedus. In strict law, therefore, the foreigner in the territory of another State is at first an outlaw, although custom and religion enjoin that a guest should be protected and respected.* "But at the same time the Eomans recognised that the religion, the State, and the law of the peregrini had the same validity in their own territory, and for the citizens who were subject to them, as the religion, the State, and the law of Eome had for the Eomans." Eoman law and the law of the peregrini faced each other, recognised as independent but mutually exclusive.^ But if there was with another nation amicitia, or even foedus, the citizens of this nation were no longer mere outlaws in Eoman territory, they were imhlico nomine tuti, could have certain limited legal intercourse with Eomans, and legal disputes between them and Eoman citizens were determined by special court (Becuperatorcs).^ In Sell's'^ opinion these courts were often controlled by special instructions as to the rules of law to be applied by them contained in public treaties, which were their true foundation, although much of course might be left to them to determine according to their discretion. The jus gentium of the Eomans and the jus civile. § 10. By degrees the subjects, speaking generally, of the States with which Eome was not at war, but with which she lived in peaceable inter- course, began to be recognised as capable of legal rights to a limited extent. This did not, however, go so far as to set foreigners on equal terms with the Eoman citizen as regarded private rights ; they were merely held to be capable of sharing in the institutions of Eoman law, in so far as this was required by their residence in Eoman territory, or by the intercourse of trade. For the purposes of trade only, those principles of law which Eoman jurists indicated by the title of jus gentium were necessary. These the Eomans characterised as a law " quod apiod omnes gentes perceque custoditur,'' so that it could never come into conflict with Eoman law.^ ' Cf. L. 5, § 2, D. de captivis, 49, 15. In this passage the ultimate inference is drawn that in that event the right of the foreign nation over persons or things, which up to that moment had been Roman, began. " Illorumfit." * As is well known, Greek authors especially frequently speak of this. 5 Karjowa, ut. sup. cit. Thus the Eomans were a long way removed from the absurdity which has often been maintained in modern times, that the native judge can only apply native rules of law, and must thus refuse to recognise the foreign legal system even in a domain which indisputably belongs to it. ^ Zimmern, Geschichte d. rom., Privatr. iii. § 17. ' Die Secuperatio der Rojner, pp. S18 et seq. 8 Although the source oi the. jus gentium is commonly found in international intercourse Karlowa (§ 69, p. 454) proposes to trace it to a Roman origin. Perhaps both theories are to some extent correct. Cf., however, Puchta Inst. ii. §§ 83-85. ^^^ ROMAN LAW. 13 Eoman rights of succession, family law and property in land (at least m Italy), continued to be denied as a rule to foreigners." The marriage of a Eoman with a foreign woman was not, according to Eoman law, for all purposes a valid marriage." A foreigner could not inherit under a Eoman testament, and even many forms of the transference of property were inapplicable to the acquisition of property by foreigners." Where a rule of law belonged to the j%is civile, it needed either a special legislative enactment to make it applicable to the relations of Eomans 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 therefore belonging to the jus civile, but yet at bottom merely the development of some rule belonging to the jus gentium, created the fiction that the dispute was between Eoman 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 Eoman citizens (Liv. XXXV. 7); an instance of the latter is the formula given in Gains (iv. 37) for extending the punishment of theft to cases occurring between Eoman citizens and foreigners.^^ That the law of the foreign country should be applied in those cases where the legal relations of foreigners fell to be considered as an incidental point before a Eoman tribunal, was the necessary result of any recognition of intercourse with foreigners as a legal intercourse. Otherwise, the Eoman who acquired any goods from a foreign country would have had no appeal to the right that lay in the foreigner who was his author, and 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 Eoman 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 Eoman tribunal by the law of the foreign country, in so far as it was of importance to determine it (Gains i. 92).^* None of the rules of Eoman law that had reference to succession could form matters of dispute except ' Cf. Rudorff, EoTii. Rechtsgeschichte i. § 1. ^^ It was no j'ustum matrimonium ; but yet certain legal effects of it were recognised. As an exceptional privilege, the connuMum was given to some foreign peoples. XJlp. Frag. V. 4, 8, 9. " Puchta, Inst. ii. §§ 217, 236. Walter, E&m. Jiechtsgeschichte i. (Srd ed.) § 115. '^ In the year 584 A.u.c. the right was specially gi-anted by the Senate to envoys from Gaul to buy ten horses in Italy and take them away with them ; Denorum equorum eis com- mereium esset, educendique ex Italia potestas fieret (Liv. xliii. 5, Puchta, Inst. ii. 197 not. 6). One may infer that without such permission foreigners could not buy horses. Perhaps the meaning of the division of things into res mancipi and res nee inaucipi 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 y.eve the very things which foreigners must at first have been forbidden to acquire. The fact that res mancipi could be acquired by injure cessio, goes all the further to show that this is the true explanation, since this form of acquiring property was only known among Roman citizens. 13 Cf. L. 6, § 2 ; D. 28, 5 ; L. 59, § 4, Cod. L. 1, C. 6, 24. 14 bar's international law. [§ ^1 between Roinan citizens, for there was no succession between Komans and foreigners. Again, in a question of succession as between foreigners, a question that could onl)' come before a Eoman court as an incidental point, the law of the foreign country alone could be applied, if indeed there was to be any recognition at all of succession as between foreigners. This is laid down by Ulpian {^rag. tit. xx. § 14) and by Gaius (iii. § 120) in so far as the testaments of foreigners and obligations transmitted by succes- sion are concerned. All this is simply explained by the fact that the Eomans, as a matter of principle, allowed the numerous nationalities which were subject to them to retain their own law and a certain measure of autonomy. i* The intermediate stages between a mere alliance and full incorporation were manifold, and the natural result was that foreigners who did not belong to the empire came to be treated on exactly the same principles as the citizens of the nationalities which had been drawn into the empire. Accordingly the jurists speak of them indiscriminately as Peregrini. The private law of property and rights was, therefore, as Wachter (i. p. 242) aptly describes it, treated among Eomans and foreigners as a special part of the law of status belonging to both, which followed the person wherever he went. This condition of things is especially clear in the days of the empire, when Eoman citizens lived in all quarters of its dominions, and always observed their own law, without regard to the place where they dwelt. Of course, however, in this state of things the jus gentium had the force of a common law as against the laws of the individual civitates, and the operation of the Imperium, which belonged to the Eoman provincial magistrates, was to make some of the peculiar forms of Eoman law (in particular the private testament of the Eoman citizens, so far as form was concerned) absolutely universal law.^^ Caeacalla's Innovation. The Invasion of German Tribes. § 11. When in later times Caracalla gave rights of Eoman citizenship to all the free inhabitants of the empire, the legal position of all became the same. 1^ And as by degrees barbarian and German tribes be^an to people more and more the soil of the Eoman Empire, to grow more and " Cf. specially Karlowa, p. 328. The subject city, too, as a rule retained its jurisdiction for disputes among its own citizens. As regards the Sicilians, cf. Cie. in Verrem ii. 2 c 13 ■" Sicuti hoc jure sunt, ut quod civis cum civc agat, domi certet suis legibus ; quod Siculus cum Siculonon ejusdam civitatis ut de co praetor judices ex P. llupelii decreto sortiatur," Cf too Cie. in Verrem, ii. 2, c. 37. On details see, too, 'Voigt the jus naturale . . . jus qcntium of the Eomans, vol. iv. pp. 317 et seq. ' " Karlowa, pp. 329-330. 1" It is Savigny's opinion (viii. § 357, Guthrie, p. 120) that the right of Roman citizenship which every citizen of a municipium had in addition to his own native rights of citizenshin' had nothing to do in determining his personal rights ; that, in determining these, no regard wa' paid except to the law of his own immediate home. This view is met by the prominent meaning given to Romap citizenship in relation to private rights in the latter days of th empire, and is completely answered by the well-known object of Carracalla's decree viz t §12] ROMAN LAW. jc more independent, and indeed to master that empire, there was found to be, in dealing with the relations of Eomans and Germans, no better or simpler way of treating their various laws than that which had been in use up to this time, and had prevailed among Eomans and the Peregrini. " The so-called system of personal law, of the earlier Middle Ages, is only a development of the system which the Eomans had already observed. It does as little violence as may be to the national peculiarities, and simplifies the combination of different tribes and nations into larger political unities. appendix. The Passages in the Eoman Authorities which seem to touch upon THE SO-CALLED CONFLICT OF LaWS. § 12. The object of the books of law compiled under Justinian 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 Eoman private law as a privilege of Eoman citizens, in contrast to those who had not all the rights of freemen, the Dediticii and the Latini Juniani, no customary laws had established themselves except in a few unimportant matters arising out of the interpretation of commercial instruments. In cases of this kind, however, matters could easily be adjusted with the aid of the principle of hona fides, which in later times was so much extended. On the one hand, then, this is an explanation of the scantiness 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. The following passages in particular are assigned to the subject of the conflict of laws : — (1.) L. 34, D. de div. reg. jur., 50, 17. The question discussed here is as to the interpretation of a contract. The passage says, that you must draw from foreigners as well as from Eoman citizens the taxes levied on succession. But how could the Eoman law of succession have been extended to the citizens of the municipia, if the laws of the family and legal and commercial capacity were not also regulated by Eoman law ? According to Savigiiy's view, cases of conflict between the laws of the different States and the law of Eome must have been most numerous, and the 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 Gellins, N. A. iv. c. 4, that when the right of Eoman citizenship was given to the Latin towns they lost their own marriage laws. " Cf. on that subject Duraud, pp. 38 et seq. i6 bar's international law. [§ 12 have recourse to the express 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 essentials of thejegal instrument, as has been frequently maintained ; ^^ the passage takes for cranted that the instrument 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 con- cluded 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 eviciione, 21, 1 ; L. 1, and L. 31, D. de Vysur., 22, 1. (See on the latter passage Savigny, § 374, Guthrie, p. 257.) (3.) Other passages treat of the rules of jurisdiction within the Eomaii State ; and it is plain that if, for example, in L. 20, D. de jurisdict., 2, 1, it is said " extra territorium jus dicenti impune non pccretur," this can only be made to refer, as the second sentence of the passage demonstrates, to the native Eoman judge. (See also L. 3, D. 1, 12 ; L. 16, D. de off. proc, 1, 16; and also Wachter, i. p. 250.) (4.) L. 65, D. dejudiciis, 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 Ejccording to the laws of their domicile, only speaks of the domicile as' the pkce in which an action for recovery of the Bos can be brought (Savigny, § 370, Guthrie, p. 209.) (5.) 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, 251). To take another instance, the rule that questions as to moveables are to be determined by the law of the domicile of their owner (Mevius ad Jus. Lub. Proleg. qucest. 6, n. 20 ; Hofseker, 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 the 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 18 See Wachter, i. p. 248 ; Savigny, § 356, Guthrie, pp. 117, 118. " See, e.g. Gliick, Fand. i. p. 290. =» §§ 372 and 374, Guthrie, pp. 226 and 245. §12] ROMAN LAW. \J Res Italiccc, the other for lies Provinciales, that belonged to their predecessor ? (6.) If the 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. de 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, quemadmodum test., L. 1, C. 8, 49, de emaneip. 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 " patrice tuce" must have reference to the law of the domicile of the heiress, and this deliverance could not possibly be correct in law. It is therefore to be understood 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 powers 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 question of a conflict between the laws of different cities, but merely of the different powers of officers of cities, depending, of course, on the pro- visions of the laws of these cities. (See Savigny, viii. § 382, Guthrie, p. 327.) 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 Eome, 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 civilisation, that questions of that nature could hardly arise. b. the middle ages. 1. System of Personal Laws. § 13. Custom and law were not so much separated from each other among the Germans as among the Romans. Accordingly we probably cannot assert B 1 8 bak's international law. [§ 13 the complete outlawry of the stranger among the Germans so strictly as we can among the Eomans.^ One reason of this is that the Germans, who did not shut themselves up in cities, could not maintain so exclusive an attitude against foreigners. Families, communities, district leagues and tribes, mixed with each other without any exact conditions ; and kindred tribes, who must have had all kinds of intercourse on their frontiers, could not well treat each other as outlaws.^ It must therefore, to begin with, be doubtful who were foreigners in the proper sense, who should be held to be outlaws. But, of course, the most important protection which the individual enjoyed was that which was secured to him by his family and his clanship ; this protection, of course, was not enjoyed by the foreigner. The rising power of the king, however, took foreigners under its protection.^ Mer- chants travelling from the south, which was much more advanced and developed, brought with them the valuable products of artistic industry ; and in particular the kings felt themselves bound to protect the pilgrims and envoys of the Church.* We have already noticed that the Germanic stocks, who came upon Eoman territory at first as allies, kept their law, and the Eoman subjects who were settled there kept theirs also. The allies became conquerors, but for all their pride, they could not conceive the idea of treating as slaves, or as in any sense beyond the law, the inhabitants of the Eoman provinces, who excelled them so much in culture. What made it more impossible was that the heads of the Germanic races gladly took up the dignities of the Eoman State, or climbed the throne of the Caesars as their successors. In this way the law of the different tribes and nations, united upon the same territory, became for each individual a special law of status ; and the general state of legal relations was distinguished from the relations of Eomans and Peregrini in older times in this respect only, that all those who belonged to the different tribes, except in so far as, by being slaves or on some other special ground, they were denied full rights or liberty by the tribe to which they belonged, were regarded as of full legal capacity for all legal relations. The distinc- 1 On this matter I have changed the view I expressed in my first edition. The general view certainly is that the foreigner was an outlaw. But see, on the other hand, Wilda, Das Strafrecht der Oermarien 1842, pp. 673-676, and now specially Stobbe, § 42, note 3. Brunner {Deutsche Bechtsgeschichte, i. § 85) assumes outlawry to have been the rule ; but in those coun- tries, which once belonged to the great kingdom of the Pranks, the rule of outlawry is, after this time, applied only to slaves and to non-Christians. Cf. Heusler. Instituiionen d. deutsch^n Privatrechts, i. § 34. 2 There is certainly a want of direct evidence from German legal sources, but we may appeal to the provisions of northern laws used by Wilda {ut sup. cit.). In these there are cases where the rules of punishment are graduated according to the closeness of the relations with the country of the man who has been slain. 3 Lex Bajuw. Tit. 3, c. 14, §§ 1 and 2. Cf., too, Waitz, Deutsche Verfassungsgeschiehte, 2 Aufl. iii. p. 323. * The law of Russia in the Middle Ages allowed foreigners not merely an equal legal capacity with native Russians, but gave them various advantages. On the Russian treaties of coninierce concluded in the Middle Ages, see the interesting papers of F. Witte. {Die EechtsverhaUnisse der Ausliinier in Russland, pp. 4-22.) 14] ORIGIN OF PERSONAL LAW. 19 tion between the/^s civile and the Jus gentium, which had in earlier times been so carefully developed, had fallen into oblivion. It would scarcely have suited the practical needs of the time, as the most various tribes at the time of the immigration were thrown confusedly together in many districts. § 14 In this wayS the so-called system of personal laws® arose, a system which, in the great kingdom of the Franks, necessarily became of much practical importance. " When," says Savigny, " a State extended its conquests, and cast other German races as well as Eomans under its sway, then the Germanic law that belonged to the conquered race obtained just as general a recognition in its dominions as the Eoman law had done ; and conversely, in every country that fell under 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 intro- duced all the various kinds of law that were recognised in their own country."' As a rule, every man 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 and the widow lived by the law of the husband's nation. It was for the first time by a capitulary of Lothair I., passed for Italy, that the widow fell back into the law in which she had been born. Marriage was celebrated under the law of the husband's nation. But the husband had to redeem the bride from her state of pupillage in accordance with her law, although his own law regulated the dower and the marriage present (Morgengabe)? The Church, as an institution which had come over from the Eoman Empire, enjoyed Eoman law. The individual priests lived among the Longobardi by the Eoman law also, but not so among the Franks.^ As no one could capriciously change his own rank, so it was forbidden to change the law under which he lived.^" Difficulties, however, arose when persons belonging to different tribes wished to conchide legal trans- ' Brunner wishes to trace back the system of personal laws exclusively to the endeavours of the Salic Pranks to establish, on a iirm footing, for themselves the enjoyment of their own tribal law, a principle which, in accordance with the law of reciprocity, might be extended to other tribes. ' Cf., on this subject, especially Savigny. Geschichte des Eomischen Eechts im Mittdalter, 2nd ed. pp. 118 etseq., Stobbein Bekker's and Muther's Jahrbilchem des gemeinen dentschen Eechts, vol. 6 (1863), pp. 24 et seq. Lain^, Le droit intern. piHvi dans ses rapports avee la tkiorie des statuts. (J. xii. p. 129). ' At the same time, it is quite possible that by this time these personal rights were recog- nised as well in the heart of Germany, where different peoples dwelt side by side, especially where there was some kinship. [A similar system now prevails in British India. Cf. West- lake, p. 11. The law there administered consists of: — (1) Enactments of the Indian Legis- lative Council ; (2) Statutes of the British Parliament applicable to India; (3) Hindoo or Mohammedan laws of inheritance, status and the like, in cases where Hindoos or Moham- medans are concerned ; and (4) the customary laws of particular castes and races. In cases of conflict, the law of the defender is preferred, as stated in the text.] ' Cf. Brunner, in note 47, pp. h\ et seq. ' Brunner, note 33. 1° On the so-called"Pro/csjreo legis, see §§ 41, 42, and the right view in Hegel, Geschichte der Stadtever/assung von Italien, Leipz. 1847, i. pp. 436 et seq. Brunner, § 34 ad fin. 20 BAK'S INTEkNATIONAL LAW. [§ 14 actions with each other, or when a process was to be decided, in which the parties belonged to different tribes. It was no doubt the fact that in such cases the procedure was not quite impartial ; it was only natural that the conquering tribes especially should enjoy privileges in the case of legal disputes.^1 The general rule, however, and the one that naturally sussested itself in the circumstances, was that the defender should defend himself in his own courts, and by his own law,^^ in which case a distinction between real and personal rights could scarcely be made, and that a man could only undertake personal obligations in accordance with his own law. In the transference of rights from others, and specially in the case of rights to landed property, the law of the seller was the basis.^* The transference was conceived as a renunciation by the lawful owner in favour of the person who was to acquire it, and thus in processes the decision was ruled by the law of the author from whom the possessor claimed to have acquired. Every man's succession was ruled by his own law ; so that, if a Eoman 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. Blood money and composition, however, were settled by the status of the person who had been killed or hurt. Both of these were simply the compu- tation of the value which the dead man had had for his family, or indirectly for his nation, and such a computation had to be settled by the place which each nation held in the whole kingdom. The ruling nation could not possibly allow the value of the lives of its members to be determined by the law of any subject race, nor could it sanction a higher rate of blood money for members of the subject race than it approved for those of its own stock.i* Some laws were good for all the subjects of the kingdom : such general laws make up the principal part of the capitularies. A condition of law similar to the so-called system of personal laws will always have an object to serve, and will as a matter of fact be found to prevail, in a greater or lesser degree, in countries where the subjects of natiops which are of widely different degrees of culture move in close intercourse within one territory. In this way, Europeans live in Asiatic ,Sta!;§s under their own laws : the law for Englishmen in India is as a rule their pwn native law, and so in Algeria the French, Mohammedan and Jewish laws are distinct.^^ So, too, within the territory of the United " Cf. Stobbe, ut sup. cit. p. 24. It may well be, as he says, that in the law of process Bom^n 'law was being gradually pushed aside. " - ^ By the 139th article of the Ed. Theod. the competency of the court was determined by tbfi status of the true defender, not by that of his surety (Savigny, § 104c). According to oii/ef passages, however, as far as material rights are concerned, there is no doubt that the law npder which the author lived is taken into consideration (Savigny, § 46. Brnnner, note 27). " Sometimes, in such transactions, the law of the person who was acquiring the right was flhaerved as well as the right of the person who was alienating. Cf. Siegel, Deutsche BechU- qanihicMe, 1886, § 9, note 5. " Savigny, GeschicMe i. § 47 : for further proofs, see Brunner, ut sup. cit. note 8. 1= Cf. Laine, 3. xii. p. 137. Beach-Lawrence, iii. p. 5, and, on Algeria, especially the appen- dix to Fcfclix by Demangeat, i. § 33, pp. 87 et seq. French decree of the Senate of 14th July 1865; " Sur VUat des personnes U la naturalisotiov, ev, Algirie" Art i, "L'indigine §15] STATUTE THEORY. 21 States of North America is the Indians live under their own law, but they are, for instance, if they reside beyond the limits of the so-called Eeserva- tions, which have been made over to them, subject also to certain laws of the United States. The whites, however, even in the reserved territories, are not subject to the law that rules the Indian tribes, unless in some special case of adoption into one of these tribes. There is a peculiar rule of law, that the Indians cannot transfer their lands to others. It is derived, however, not from any special statute, but from the theory of the occupation of the land by the settlers upon it. There is no doubt that, as a practical measure, it is to be commended. 2. The Later Middle Ages. The Statute Theory. § 15. In the later Middle Ages the system of personal laws has disappeared.^ But the change which ensued is by no means, as has been frequently assumed,^ the radical change of a system of personal laws being followed by a system of absolute territoriality. The changes which we remark at the time of the so-called books of law {Bschtslnlcher, especially the Sachsenspiegel) are merely as follows. After the break-up of the kingdom of the Franks, the different peoples no longer came into contact with each other so often or in such large bodies.^ Hence it became as a matter of fact impossible to keep the law of the individual steadily in view. The court was unacquainted with the personal law of the foreigners brought before it, and was therefore naturally constrained to apply its own law. This was the rule as to the law of evidence, which was so important in the Middle Ages.* Again, as a general rule, a man could only be sued for debt at the place where he lived, and so the law of the debtor's domicile decided claims of debt. There was therefore no longer any attention paid to a man's descent. There was another and an important change, viz.: — that tlie tribunal of the place where the property lay was the only tribunal recognised for landed estates, ^ and that on the whole real rights in land were determined by that law. musuVman est Francais ; n^tmmoius il contmuera d'Ure Hgi pas la hi musuhnane . . , Mpeut sur sa deikande, Ure admis (ijouir des droits de eitoyen francais ; dans ee cos, il est regi pas Us lois civiles de la France." The same enactment is made by Art ii. for the " Israilite indigene" in Algeria. w Cf. Wharton, § 9, 252 and Dig. 2, §§ 208-210. ' We follow here Stobbe's precise exposition ut sup. cit. pp. 43 ct seq. Compare too Savigny. Geschickte as cited, pp. 180 et seq. Eichhorn, Deutsche Staais-und BechtsgeschicMe, i. 5th ed. § 46. ^ Laurent, i. No. 178, seems to assume a radical change, with which he associates many thoughtful ideas. ' In many districts the pure system of so-called personal laws maintained itself longer, because the clansmen of different stocks were settled promiscuously in the same territories. This was the case in Istria, Trient, and afterwards too in the German Konigsgericht. * Cf. Landaws of Gbrlitz, 39, §"5. Sachsensp. iii. 79, § 2. Froni this latter passage we see • that a village community could certainly not apply its particular law against a foreigner, but must proceed according to the " Landrecht." ^ Cf. Sachs. Landr. iii. 33, § 5. Die honing sal ok richten uin egen nicht na des mannes reckte, wan na des landes dar'tvrme leget., iii. 79, § 2. 22 bar's INTERNATIONAL LAW. [§15 On the other hand, legal transactions, except no doubt such as had to do with the creation or the transference of real rights in immoveable property, began, as a general rule, to be recognised as valid in point of form, if they were concluded in the shape prescribed by the law of the place at which they were concluded. As regards succession in moveables,* the old rule, which left the determination of everything to the personal law of the deceased, continued to be followed. These rules might, of course, be broken in upon by special privileges given by the Emperor to individual States.^ We need only further explain at present (apart from the rule that the form of legal transactions depends for its validity on the place of execution, a rule which must be discussed hereafter) the law of the place of domicile and the law of the situs of a thing. There is no doubt that from an early period it had been possible, by special adoption into another national or clan-union, to assume the law of that union ; in later days, this adoption was discovered to exist in the acquisition of a domicile.^ Then, again, as Savigny has already pointed out, feudal vassalage and bondage trans- formed every nation from a mass of clan communities into a mass of feudal followers and retainers. " As among the former the law of the clan had been the recognised rule, so among the latter it was the law of service. This law of service or feudal law had drawn most of its contents from the law of the clan, but no distinction was made now according to a man's descent." Where bondage arose, the proverb, " the air makes property," was often recognised : that is to say, that a man became the bondsman of the owner of the land on which he had lived for a year and a day.^ This peculiar maxim is not much more than the complement of the other maxim, that residence for a year and a day in a town as a citizen gave freedom to those who had not been free. In both cases it was a question of adoption into a fellowhip ; in the first the fellowship was not free, in the second it was. As a consequence of the autonomy, which was claimed by the free communities and the over-lords in relation to their bondsmen, it seemed that it must be recognised that these autonomous communities and persons " were entitled to prescribe the fashion in which the landed ' Of. Pauli, Alhandlungen aus d. Imbischen Eechte. iii. p. 36. The law of succession in immoveables was determined by the Lex rei sitae. Sachs. Landr. i. 30. Goslar'sohe Statuten (ed. Gbschen), p. 30. ' Thus the citizens of Llibeck had received from the Emperor Frederick the First, in 1188 the privilege of being tried everywhere by their own law, and it was not uncommon that the law of a town should, by force of some privilege, extend to possessions acquired by her citizens beyond her own boundaries. 8 Of. Eichhorn, BechtsgeschichU ut sup. cit. note 1 . « Of. on the "faire seigneur" in France, Durand, pp. 105 et seq., and in the proverb cited in the text in later times, pp. 141 et seq. (Beaumanoir, Cout. de Beauvoisis, c. 45). The maxim was recognised in France, but not in the case of one noble residing in the domain of another. 1" In truth, the landlord constituted a community with his feudal vassals on the one side and with his bondsmen on the other (see Gierke, Das Deutsche Genossenschafts?-echt{iS69), § 15 and § 20). V. Wys, in his paper upon the conflict of laws according to Swiss legal views (Zeiisehriftfur Schweizer Eecht, vol. ii. pp. 34 and 45), has already directed attention to this origin of the territoriality of laws, but at the same time has pointed out that there could be uo 16] GROWTH OF LEX RHI SITyE. 23 property which lay at their disposal should be inherited, acquired and occupied. ^^ The Pkeponderance of Land Ownership. The lex rei sites. § 16. At the same time, all that has been asserted by the writers on the French customary laws, as to the territoriality of the different Coutumes in France, remains true.^^ Additional rights and duties were constantly being attached to the different kinds of property in land. Thus the person, putting towns out of consideration, seemed more and more the mere representative of a particular estate, and this view was all the more easily taken up, as the value of moveables was comparatively trifling. The customs and other rules of law seemed to be enacted not so much for men as for the land.^^ If it was prescribed how a tutory was to be conducted, or how the line of succession was to shape itself, the first matter of concern seemed always to be that the necessary feudal services or returns due from an estate should continue to be rendered after the death of the owner for the time. There was, at least apart from the towns, sufficient stability in husbandry to provide for the persons concerned, if only the estate from which they lived was kept in its proper legal position. At the same time, the whole system of the preponderance of landed property over the person had the way prepared for it by the custom of the Frankish kings, who required a special oath of allegiance from landed proprietors. Then, again, the subordinate landlords, and even the towns, required a special form of submission from all who desired to acquire landed property of any kind in their territory. The idea easily grew up, that one who acquired land in any district belonged to it with his person, and all his personal rights and obligations. We said already that Germanic law, from its earliest day, by no means entirely excluded foreigners from legal capacity." The union of manifold races in the great kingdom of the Franks, in which the Frankish stock had certainly a preponderance, but not a real supremacy, must have especially promoted the recognition of the legal capacity of foreigners ; so, too, must the idea of Christianity, which sees in every man a brother. 'But still, in the later Middle Ages, we find manifold limitations of this capacity. The explanation is this. The stronger the bonds of the different communities or associations grew, and the more the general legal union of idea of a completely exclusive territorial law to seize, as a matter of principle, upon all the persons and things found in its territory. AVys cites precise documentary evidence for this, as well as for the fact that frequently the acquisition in full and free property of a piece of ground by the citizen of a town, resulted in bringing that ground under the law of the town. 11 This autonomy, no doubt, is closely connected with the fact that in the Middle Ages there is no strict division of public from private law. 12 Cf. Laurent, i. § 193. ^ Cf. Wys, ut sup. eit. pp. 49-51. nc n a » Among the Gauls the position was no doubt much more like an outlawry. U. Diirand, p. 32. 24 liA/^'S INTERNATIONAL LAIV. [§ 16 the great kingdoms dwindled, so much the more did the legal status seem to be dependent on the employments, the wishes, and the strength of the different subordinate associations. So much the more was it held to be fair, if not to shut out foreigners altogether, at least to throw difficulties in the way of their sharing in the legal rights of the community or asso- ciation, or even enjoying any legal rights at all. In the midst of their many malicious wars and feuds, men cherished in the small circuit of the town walls, and sometimes too over whole districts, that spirit of exclusiveness and distrust, which rejoices in setting foreigners at a disadvantage, but never thinks that if these disadvantages and disabilities were mutually applied by all communities, the result must be that all should suffer. Exclusiveness of this kind sends its roots back into the old days when freedom was unknown : complete and free ^' connubium and commercmm existed only among those who shared manorial rights under one over- lord,!^ a state of things which left traces here and there for a long period. Thus, in very many places, it was impossible for foreigners ^^ to acquire land or real rights in land or securities, etc. In some places attempts were made to exclude them from trade by forbidding cellars or storerooms to be let to them. Moreover, very considerable duties were raised from moveable property which, in consequence of succession ^^ or emigration,!" was being taken out of the territory. Foreign creditors were, according to many systems, postponed to native creditors in bankruptcy, and foreigners generally were exposed to many disadvantages in matters of legal process : e.g. they were subject to the so-called "foreigner's arrestment," and as pursuers had to find caution for the expenses of process. A special mark of a falling back into barbarism was shown in the withdrawal from foreigners resident in the country of the right of succession.^" In this way the landlord or prince, as the case might be, held himself entitled to pocket the whole inheritance, or at least only bound to hand it over under a heavy deduction.^! ifi The landlord had to approve of any marriage with a member of another community before it could take place. i« Cf. Gierke, Genossenschaft, i. § 15, note 4, and the citations. " On these disabilities of foreigners, see specially Stobbe. D. privair. i. § 42. 1' Jics detractus. Deduction. 1° Gabella emigrationis. » In truth, the rights of the family, the Status UgUimus. Against this selfish and barbaric view, see the Informatio e specula Saxonico (Homeyer, in the Transactions of the Academy of Berlin, 1856, p. 640) ; cf. Stobbe, ut sup. cit. note 24. 2> Law of strangers (Jus alUnagii, Droit d'aubaine). See Stobbe, ut sup. cU. ; and on the special development of it in France, see Durand, pp. 123 et seq. The latter represents it in a less capricious and odious light. As Durand shows, tlie "aubain " was in France a Frenchman ; in a year and a day he had become bondsman or vassal of the " Seigneur." He could it is true be succeeded by the heirs of his body, but not by foreign collaterals, for, to use Durand's expression, intercourse with other countries was too scanty, or, to come nearer the truth the community was exclusive. (See note 15, supra.) The Emperor Frederick the Second, at thi.s time, in 1220, at Rome ordained, in a law which was to be pminulgatedper toium (cf. Auth, § 17] ORIGIN OF STATUTE THEORY. 2$ But the idea is uowhere to be found that strangers should be simply subjected to the law of the territory in all their legal relations.^^ Even in the later Middle Ages there was no such thing known as territoriality of law in this sense. Territoriality of the law in this sense is, in the first place, irreconcilable with the security of commerce anywhere, and postulates the idea of a complete and a strained sovereignty. The Middle Ages were a long way from any such notion. It was only by a voluntary subjection, so they thought, that the particular law could be applied to the foreigner ; no doubt they took up this idea of voluntary subjection in a very wide sense,^* and by means of legal fictions they trespassed even its bounds. But all this is evidence against the existence of an idea of an unlimited territorial sovereignty. Opposition of the Commentators on the Feench Coutumes to the later commentators. rise of the statute theory. § 17. The opposition of the customary laws of France and their comment- ators on the one side, to the Italian jurists of the Middle Ages on the other, in determining questions of private international law, is not by any means, as Laurent has asserted, absolute, but only relative. One must remember that the former had in view the rules and principles of German law, the latter rather those of the Eoman law. It is plain that very different conclusions must be drawn by them.^* Thus German law in the Middle Ages has not yet reached the idea, in the law of inheritance, of a universal succession completely covering the whole mass of a man's property, and in the French Coutumes we have often to deal, not with absolute property, but with the restricted rights of the feudal vassals or bondsmen. The result is a treatment of the case of an inheritance in a way quite distinct from that which is required by the principles of Eoman law. Thus it is by no means these later commentators, as the modern Italian school, and Omnes peregrini in God. 6, 59 and Pertz, Monum. Germanus Legum ii. pp. 243 et seq. (c. 8), that foreigners should be fully at liberty to test, and that, if they died intestate, their succession should be handed over to their heirs, and in particular that the Hospes should keep none of it. This would prove that intercourse with foreigners was not quite so unimportant, even if the fact were not otherwise certified, and that therefore the^MS albinagii had not been, as Durand thinks, almost justieed by its legal results. It was still a kind of robbery, as the rapacity of those in whose territory the foreigner resided, the " Eospites," shows. Soon after Frederick's ordinance, it was held permissible in Germany to make deductions {Abschoss, Gabella hereditaMs) cf Stobbe, ut sup. cit. ^ Laurent, i. § 201,; says, " Toute coutume Mail repuUe rielU, en ce sens qu'illc rigissait exelmivemmt 'les hommes et les elwses qui se trouvaient sur U territoire des seigneurs. This is an exaggeration. See the true view in Eivier (Asser.), p. 8, note 1. 23 The law of bondage mentioned above, § 15, or a portion of it, may no doubt also be traced back to a voluntary subjection. ^ Cf. on the individual Postglossatores, in particular Laurent, i. §§ 199-225 et seq., and Laine, J. xiv. pp. 21 et seq. 26 bar's international law. [§ 18 with them, e.g. Laurent, believe,^^ who have the credit of bringing the personality of the individual up to the point where the theory of the conflict of statutes begins. There is a simple explanation of the fact that they regarded the statutes, which propose to lay down rules for persons, and which seem therefore to adhere to persons even when they are in foreign countries, as of supreme consequence. In the law of Eome, which was recognised in Italy, the individual was not so much regarded merely as the representative of his land, as he was in France ; this difference made itself especially apparent in the rich commercial towns of Italy, which entered into the destinies of Italy in quite a different fashion from the French towns into those of France ; and then the well-known jurists were citizens, and highly favoured citizens, of these ruling towns.^^ The leading idea, from which these later commentators start, is simply that of the express or implied subjection of the person or the thing, or, at least, of the transaction to some statute differing from the common, i.e. the Eoman law. They had no conception as yet of an absolutely sovereign authority in the State, which could treat strangers as it pleased. They hold the theory of the universal supremacy of the Pope in spiritual affairs, and of the Emperor in worldly affairs,^'' a theory which, as regards the Emperor, did not by any means square with the fact. But yet they did not in truth ascribe to any territorial lord an entirely unlimited sovereignty, but merely an autonomy, which by fictions is set on a level with the more extensive power. This is the whole origin, combined with the tripartite division of legal relations according to persons, things, and transactions, which recommended itself to a superficial and scholastic logic, of the so-called statute theory — a theory which, for so long a time, dominated the doctrines of the conflict of laws and statutes, and to which in our own time the most modern Italian school has sought again to attach itself. Meaning of the Statute Theory. § 18. If, so runs the theory, a statute concerns a person, the operation of that statute cannot be extended to strangers or forenses, as the expres- sion was. Still more the subditus, even in a foreign country, remained continually subject to the laws of his home, in so far as their meaning did not show that they were intended merely to have a local application, as, for example, corn laws, laws as to exports and imports, and other police regulations. On the other hand, if the statute refers to a thing, the law of the place where it is situated must be applied ; it was understood, however. ^ Of. Laurent, i. pp. 200 et seq. Laurent can give no meaning to the opposition of the prin- ciples of German and of Roman law (cf. e.g. p. 296). He labours at certain mystic peculiarities of "Fendalismus " (Feodalite). ^^ Cf. Laine, J. xiii., pp. 149 et seq. ^ Cf. e.g. Barthol. de Saliceto, in L. 1, C. de S. Trim. No. 3, Bald. Ubald. in L. 1, C. cit. No. 20. Lanfranc de Oriano, De interpretcdimie staiut. in the Tract, ill. J. Ct. ii. fol. 391 p 2 Jason Mayn, in C. 1, C. de S. T. Bartolus, in Dig. L. Nov. 24, de capHvis. 3 1^] STATUTE THEORY. 27 generally that this rule applied only to immoveables, since questions as to moveables must be determined by the law of the place where the person— the owner or the possessor— had his home.^s At last it came to be recognised that strangers too might by their own acts, either by concluding a contract or committing a delict, subject themselves to the laws of a particular territory. The greatest difficulty lay in subjecting foreigners to the kws that have to do with contracts and delicts. But as the sovereignty of States became more fully developed, and trade became more complicated, the former became to a certain extent inevitable, the latter absolutely so. For this purpose the fiction of a voluntary subjection was used, 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 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 applied. Then there were developed the rules, which we shall afterwards have 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 recognised in the place where that transaction takes place. (" Mobilia personam sequiontur" or " Mobilia ossibus inhcercnt," and Locus regit actum.y 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 mixia,^^ although this name, and these technical descriptions of statutes as "personalia" and " realia," are first made use of in later times in the sixteenth century, after the days of Molinseus, Argen- trseus, 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 determin- ^ On this point, and generally on the extension of this doctrine, there is very great obscurity. Cf. infra, The law of things. ^ In the Middle Ages Jews were treated as foreigners. In disputes among Jews, the Jewish tribunals decided according to Jewish law. There were many remarkable particular rules of law with reference to legal relations between Jews and Christians. By the theory of the later Middle Ages Jews were outlaws, in so far as a special protection was not accorded to them, and practice often translated this theory into fact in a sufBciently capricious and horrible way. Cf. Stobbe, Die Juden in Deutschland wahrend des Mittelalter, 1866, particularly p. 103 ct seq. Heusler Instit. des. d. R. i. § 35. Brunner, i. § 35, 30 Cf. e.g. B. Barthol. de Saliceto ad C. i. 1 ; De. S. Trin., No. 14. '' On statuta mixta, see especially in later days Argentrasus, Comm. ad Brilt. leges, art. 218, 28 bar's international law. [§ 18 ing in cases where an offhand 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-born 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 latter scope, by inquiring whether the law said " primogenitus succedat" or " immobilia veniant 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 with things (Bartolus ad loc cit. 1. Cod. De Summa Trinitate). 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 introduced 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 acquisi- tion. 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 a testament was to be ruled. 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 refer- ence to the warrants and the competency of subordinate officials. Of course, discussions have often taken place upon these passages, just as upon the passage of the Eoman 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.*^ C. MODERN TIMES, UP TO THE BEGINNING OF THE NINETEENTH CENTURY. § 19. In practical results the views of the sixteenth, seventeenth, and eighteenth centuries differ little from that of the Middle Ages.^ The theory of statuta personalia realia and mixta (the last of which were not recognised by all writers) was, as we have shown, involved in the views '^ Cf. e.g. Bald. Ubald. in loc. cit. de Summd Trinitate, No. 57. ^ Cf. e.g. Clem. 2, de sent, 2, ]1, C. 2, de constit., In vi. 1, 2. ^ C. 1, X. de spans, 4,1. 5= Cf. Savigny, § 382, Guthrie, p. 327 ; Schaffner, p. 1^ 1 Extracts from the theories of the different authors of this time are to be found in Wachter's treatise, and in Laurent also. But neither Wachter's nor Laurent's conception and criticism § 19] DEVELOPMENT OF STATUTE THEORY. 29 of the later commentators and of the Italian jurists of the Middle Ages. It now for the first time acquired a distinct technical name. It is at the same time certainly true, as Laurent especially has pointed out,2 that in the course of time the so-called personal statutes gained ground more and more in theory upon the real statutes. This must not, however, be supposed to furnish any historical argument in support of the view maintained by Laurent, as well as by the modern Italian school, which regards all rules of law as being in principle personal statutes, and finds that in their territorial and international operation they have no other limit than the so-called laws of public order (prdre pnUic). The development we have noticed is better accounted for by the presence of Eoman legal maxims and Eoman legal ideas, which was constantly deepening and gaining ground ; in particular it is explained by the Eoman idea that the law of succession, and the law of the property of married persons, were not so much laws dealing with the acquisition and property of isolated things, as laws taking up the entire property of a person. But the gradually rising idea of a complete territorial sovereignty^ rendered a deeper foundation for the whole subject indispensable. The division of laws into those which concern persons, things, and transactions, had arisen in close connection with the autonomy of the communities and the free operation of the will of the individual. How was it possible, starting from the exclusive supremacy of the State authority, to bring it to pass that foreign laws should be allowed to have their course and to be recognised within the dominion of that State ? Two ways were proposed. Sometimes an attempt was made to regard the new theory as a necessary deduction from the limitation to a particular territory now imposed on the jurisdiction of each State, and from maxims of the Eoman law (cited, however, in ignorance of their true meaning), which confined the jurisdiction of a judge to a particular district. Some- times, again, and with greater accuracy, the application of foreign laws was regarded as a concession by the native lawgiver, starting from the assumption that all persons, although they were in the country for a merely temporary stay, were, so long as they remained there, completely subject to the legislative and executive authority of that country. Both views^-of which the first is represented by such men as Argentre and Hert,* the second by Huber and John Voet — are introduced under the are historically correct or fair ; both fail to remember that these authors, when they declare themselves to be for the reality or the personality of ,a statute, have frequently in view prin- ciples of law that are perfectly distinct in fact, although in name they may be identical, or very like each other. "2 Cf. i. §§ 245 et seq. ^ It is quite an inadequate account of the matter to attribute, as e.g. Laurent does, to feudalism the theory that the superior or landlord was unlimited lord in his own territory. In theory he could not alter laws, although in case of necessity the emperor or king could. The superior or landlord, as matter of fact, could only exclude the application of the common law by means of a treaty or by long continued usage, to which the same effect was ascribed. * Hertius, it is true, as far as the terms are concerned, throws aside the division into 30 bar's international la IV. [§ 19 most various modifications, and are frequently treated together by the same writers, according as the conception of the statutum personale and reale is determined ^ 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 applied 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 (Aregentr. No. 16, 22, Cf. J. Voet, §§ 2-4). Particular cases, too, are narrowly discussed. The works of Rodenburg, John Voet, and the more recent writings of Boullenois and Bouhier, 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 particular 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 dis- cussions 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 application 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 comprehensive principles to regulate the 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 native place. This territorial principle — or, as the custom was, with regard to Roman law, to express it, the principle "extra territorium jus dicenti impune Statuta personalia, realia, and mixta; his views, however, really contain precisely the snine theory. Cf. Wachter, i. p. 281. ^ See upon these definitions, P. Voet, De Siatuiis, cap. 2, No. 3. I 19] DEVELOPMENT OF STATUTE THEORY. 3I 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 considered necessary to postulate, but which could not be established 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 adherents 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 favorahilia and ocliosa, the latter being confined in their operation to their own territory, the former being allowed the like effect beyond it.^ But every refmlation of private law can be ranked under one of these categories as well as under the other. A statute by which women are excluded from succession to land by male relations is obviously odiosum for the women, but favorahile for the men ; and if a statute gives the rights of full age on attainment of the age of twenty-one, it is favorahile in comparison with the common law, in so far as people of full age can do many acts which minors have not the capacity to do, but it is odiosum in so far as it withdraws 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. Others writers reject the division into statuta 'personalia, realia, and mixta, but follow the principles of the division, as Heinrich v. Cocceii, Hert, and Hofacker. 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 trans- « Darthol. dc Saliceto, and after his time others, e.g. Dasselad conmlt. Zuneburgenses, c. 9. 7 Cf. Schaffner, § 16. 32 bar's international law. [§ 19 actions 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, property to the laws of the place where it is situated, and transactions to the laws of the place in which they are 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.^ 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. Oeumes, pp; 151, 152), although, upon the whole, he is inclined to follow the more superficial definition of D'Argentr^ : " Une, attention exade sur la nature, I'objet et le motif de chaque statut en particulier est souvent le moyen le plus propre pour determiner si c'est la realite ou la personalite qui y domine; s'il suit la personne ou sHl est renferme dans les homes du territoire." And again (Consult. 47, t. ii. p. 299): " Ce qui caracterise un statut personnel, c'est quand il concerne directement I'interit de la personne, et non pas la conservation de la chose, si ce n'est d'une maniere suhordonn^e et relative d la personne, il faut, que le motif, qui I'a introduit soil fonde principalement 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 instances, a distinction of the same kind is to be found taken by other authors, although it is not at all in keeping with the principles which they postulate. D' Argentr^, for instance, thus treats the question, whether the prohibition of donations between married persons is a real or a personal law, pronouncing it to be the latter so long as he is engaged with the prohibition of the Eoman law, and the former in connec- * Burgnndus, 1, i. u. 6. Necesse erit statutiim, quo minores immohiUa alienare vetantur, non jpersoTice, sed rebus ipsis injungi — conditio minoris non est in disposiiionc, sed tantum in D'Aguesseau, CEuvres, T. V. S., p. 281. Le vdritaile prineipe en cette maiUre est, qu'ilfaut distinguer, si le statut a directement Us Mens pour objet — ou si au contraire, toute I'aitention de la loi s'est portie vers la personne, pour dicider en giniral de son habiliti ou de sa capacity ginirale et absolue. This view is quite distinct ; but to demonstrate its falsity more clearly, take the version of the author of the French Repertory of Jurisprudence. Voce Autorisation Maritale, § 10, No. 2 : "Pourjuger, si un statut est riel ou personnel, il n^ faut pas en cormdirer les effets eloign6s, les consequences ultirieures : autreTnerU comme il n'y a pas de statut personnel, qui ne produise un effet guelcmique par rapport aux biens, ni de statut riel qui n'agisse par contre-coup sur les personnes, ilfaudrait dire, qu'il n'y ait point de statut, qui ne soil pas tout a lafois et personnel et riel ; ce qui serait absurde et tendrait d itablir une guerre ouverte entre les eoutumes : que faut il doncfaire ! Llfaut s'attacher A 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. § 19] STATUTE THEORY. 33 tion with the corresponding title of the " Coutumes." He says : " Finis prohihendaricm donationum conjtigalium hahct personales quasdam considera- tiones, quod Irgcs 1 and 2 D. dc donat. inter viruvi ct uxortm indicant, et quia divcrsi generis donationihus non ecedem leges positce sunt, sed GonsuetvdinaricB causa dc prohibendis his sumuntxir potius a rebus, gentili pecunia et propaga- tione familiarum, quae res reales sunt, non ut illce Juris Bomani a personis sumtce — cum disposiiio prohibitiva res potius respicit et hcereditm ceternam in immobilihus successionem." This distinction between the prohibition of these donations in Eoman law, which had for its object the purity of the married life, and the prohibition in German law of the alienation 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 Eoman 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 classification to take up. It is quite true that a conflict of laws occurs, because persons by virtue of their domicile belong to a particular jurisdic- tion ; that things, again, belong to a jurisdiction determined by their local situation ; and transactions 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 find their origin ; the principle of law that is to give rise to these rules has not been reached. The real and substantial principle can only be found by looking back upon the nature of the connection between a person, a thing, and transaction, on the one side, and a State and its laws, on the other. It was thought sufificient, 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 conclusions —were at bottom quite arbitrary, each author often fell into plain contradictions of his own determinations, as Wachter has clearly pointed out.9 Lastly, let it be remarked that, although the later Middle Ages often placed capricious limitations upon the legal capacities of foreigners, yet as time went on, and especially in the eighteenth century, the tendency to let these limitations more and more fall away is making itself felt. 9 Wiichter, i. § 270 ; Savigny, System viii. § 361, Guthrie, p. 142. C 34 BAI^S INTERNATIONAL LAW. [§ 20 Individual Writers of this Period. § 20. It will be useful to subject the difi'erent 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 will 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. Older French Jurists (Dumoulin, D'Argentre). Dumoulin (Molinfeus)/ (1500-1566), has exercised^ a considerable influence upon later French jurisprudence, although the subject of the conflict of laws is only taken up by him by the way, and is not dealt with in a large connected treatise. He is, however, pre-eminently a Eomanist, and is therefore under the influence of the Italian school. This explains his inclination to find personal statutes even in the provisions of the French Coutumes.^ But one must admit that he knows how to meet the traditions, which on this point are very often against him, and it is a point of novelty which we find in him, that he shows that the Eoman law is certainly not the common law of France, in the face of which one would have to regard the Coutumes as merely restrictive statutes, with no effect beyond their own territory. He shows, on the contrary, that, in so far as the conflict of laws is concerned, the Coutumes in comparison with the Eoman law are of an equal value, and are of just as much effect in questions beyond their own territory.* Another novelty with him is the energetic emphasis he lays on the intention of parties, the operation of which is not to be limited to any particular territory. This observation is in itself correct, but at the same time it leads him to see implied contracts, where the only question is a question of the direct operation of a statute, an operation which may no doubt be excluded or modified by an express arrangement of the parties. Thus Dumoulin certainly presents many points of contrast with the most modern French school. On this account Laurent holds him specially ' For sketches of tlie lives and writings of the principal authors who have occupied them- selves with private international law, see Asser Rivier, pp. 267-283. ^ See Molinseus in L. 1, C. de S. Trin and Go'/isilia, No. 53, 31, u. 5. Laurent, 1. § 245, criticises him thoroughly, but reproaches me undeservedly with having entirely overlooked Dumoulin in my first edition. I merely gave Dumoulin no place among the writers who are specially criticised. ^ Coquille in a later day, d. 1603, went even further in this direction in a logical fashion. See on him Laurent, i. § 285. * See Molinajus : de dignitatihis, inagistratibus et civibus Momajiis, n. 141-143. Comimntarii in consuet. Parisienses, i. u. 107, 108. § 20] OLDER FRENCH JURISTS. 35 worthy of notice ; but Laurent himself does not fail to notice the caprice of many of his arguments, and in particular the meaningless use of the distinction between the Statutum favorabih and the Statutum odiosum, a distinction which, however, was not invented by him. U. C. B. D'Argentre ri519-1590)5 stands in strong contrast with Molinaeus. He treats of the conHict of laws in his Commentary upon the Customs of Brittany, in connection with the 218th article of these customs, which runs as follows : — " Toute personne pourvue de sens pent dormer 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 " Coutumes de Bret'agne " are the rules which Argentr^ 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;® it follows, therefore, that Argentrd'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 conclusions on different isolated points will, in spite of the falsity that often affects his premises, be easily appreciated. Accord- ing to Argentr4, every legal relation of immoveables is determined by real statutes, the lex rei sitce ; but every rule, the whole of which affects a person, is a personal statute, and can only be applied in 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 statutum mixtum, which is treated by Argentre just as a real statute. . This definition, and the conclusion which he founds thereon, are undoubtedly general rules drawn by him from the particular case that is then under his notice — viz. the obligation, 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, Argentre follows the rule, " Moiilia ossibus inhcerent " (No. 31), and applies to move- ables the rules of law that hold good in the domicile of the owner. We can trace the origin of this theory in the way previously indicated. The legislator of the domicile of any person can, says Argentr^ make what provisions he pleases for that person, and, on account of the character so imposed upon him, that power of the legislature follows that person where- ^ On him see again Laurent, i. § 275. " 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, gl. 1, c.) ; the title of heir infers no universal succession (Art. 617-618) ; and in the Gloss, to Art. 277, No. 4, it is said: "Nam prcesumptio, immo necessitas mritatis habet, quod omnia feudalia sunt m Britannia." Laurent pays no heed to all this ; he criticises nothing but the abstract arguments of Argentre and of Dumoulin, whose positions are often disputed by Argentre, 36 ear's lATERNATlONAL LAW. [§ 20 ever 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 Argentre goes od 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 property 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 making law for anything but immoveables situated in his own country. It has already been remarked that the theory of personal and real statutes by no means follows from the principles which Argentr^ assumes (p. 30) ; it is obvious that it entirely ftiils to supply a principle for the divi- sion into statuta realia, pirsonalia, and mixta, the last of which are simply treated as real statutes. One cannot help, however, admiring the line practical sense with which, as we shall see in the sequel, Argentrd manages to hit the truth in particular cases in spite of his inadequate theory. Otherwise Argentrd occupies 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. Jurists of the Netherlands (Burgundus, Eodenburg, P. Voet, HuBER, J. Voet) the German Hert. Burgundus'' (1586-1649) is an adherent of the statute theory, which he rests on the same foundation as Argentre. It is not quite clear what general rule Burgundus means to lay down for distinguishing real and personal statutes. He rejects the well-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 considering whether the provisions of a statute with regard to the conditio of a person are laid down in dispositione or in enunciatione. 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 move- ables being determined by the domicile of the owner (i. §§ 40-43, 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 et seq.). Thus there follows this strange practical result, that you may have a person who, by the law of his domicile, is a minor, with full power to grant a good conveyance of landed estate that is situated in another country, by whose law he is of full age, while he is not able to undertake a personal obligation to execute such a conveyance.^ ' On Burgundus and the authors of the Netherlands in general, see again Laurent, i. § 293 et seq. * See, on the other hand, Abraham a Wesel, ad Nov. Consuet. Ultraj., Art. 13, No. 25 ; Merlin, Eep. Vo. Majorite, § 5, On Tie concevrajamms, comment une tradition faite sans titre et sans aucune cause peut Hre valable. § ^^] JURISTS OF THE NETHERLANDS. 37 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 contract : " Nam ut personce, quamdiu in territorio versantur, ejusdem legihus sunt obnoxice, ita et actus personales—citra meniem consuetudinis iniri non possunt. In two cases Burgundus reaches his determination by considering the scope of the statute; in treating of donation and succession between spouses, where he decides in agreement with Argentrteus (i. No. 40) ; and again, subsequently, in some discussions upon the law of obligation (ii. JSTos. 23, 24), where he attaches importance to the fact whether the statute yfa.s Tpassed in favoreni debitoris or creditoris. It is easy to see that this theory is entirely arbitrary and inconsequent. 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. Eodenburg, too (1618-1668), 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 persona 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 Kodenburg'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. Eodenburg defines the statutum 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 alienation of a minor's estate by the lex domicilii of the minor, instead of referring them, like Burgundus, to the lex rei sites. Upon the whole, Eodenburg holds to the words of the statute — " Quid in dispositionem statuti ceciderit" — without caring to con- sider, "qua ratione cujusve personam intuitu," the law may have been enacted; but yet he has a strong argument upon the intention of the legislator, and on the question whether he had persons or things in view (Tit. ii. p. 2, cap. 4, I 5). In this connection, Eodenburg lays down the proposition, "Mobilia personam sequuntur" (Tit. ii. p. 1, cap. 2, § 1 ; ii. p. 1, cap. 5, § 16), but without fully realising the consequences of this maxim, as will appear on consulting the passage last cited. Eodenburg's researches, which set out from a discussion of the rights ' of married persons, and are therefore principally directed to the ques- tions of the capacity, succession, and property of married persons, and have but little concern with the law of contracts, are yet sorely deficient, like those of Argentre and Burgundus, in a substantial and consecutive ground ' 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. 38 bar's international law. [§ 20 plan, although in many isolated points they are acute and subtle. For instance, Rodenburg carries out logically the distinction between personal and real grounds of action in the sphere of married persons' property, a distinction 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. The work of P. Voet (1619-1677) on the statutes deals with our subject in sections 4, 9, 11. Taking the division into statida personalia, realia, and mixta as fund- amental, he goes on to deduce from the independence of different territories this result — that a personal statute, strictly construed, will not affect 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 incapacity. From this it follows 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 liis 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 humanitas and comitas 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 relies, for these, on the contrary, may often be turned against him. With Huber (1636-1694), even more conspicuously than with Voet, 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 strictness 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 supre- macy 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 transaction 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 applies the lex rei sitm, not only to testate and intestate succession in immoveables, but even to contracts that have to do with immoveables. It is plain that Hubert's theory cannot be deduced from the principles which he postulates. The first principle has only a negative force, and 20] Jl/R/STS OF THE NETHERLANDS. 39 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 swpremce curice Frisice, he communicates to his readers cases that have actually been decided. All that need be said of the theory of Hert (1652-1710) has been said already. The validity 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 jus naturalc to settle some cases ; but it is not clear what he understands thereby as regards the rights of different territories. J. Voet (1647-1714) is conspicuous by a trenchant and logical adherence 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 as special exceptions have been accorded by the free permission 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 exceptions, 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 place 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 a universal practice. 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 themselves, is, from his own point of view, improper ; for, by his own theory, with the exception of the special cases sanctioned by usage, all laws are prohibitory, and if they permit in this or that legal relation any pacta that parties may desire, then, in the case of such a bargain, we are no longer concerned with the solution of a conflict of laws, but with the interpretation of the will of the parties. Voet, however, confounds the immediate statutory con- sequences of a transaction with the case of a tacit agreement, an inexact 40 BAk'S INTERNATIONAL LAW. [§20 manner of thought which enables him to escape from some consequences of his principles ; as, for instance, in the 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 Commentary on the Pandects, gives many other judgments on different points which certainly are often irreconcilable with the exclusion 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. Feench and German Authors of the Eighteenth Century (BOUHIER, BOULLENOIS, AlEF, HOF.ffiKER). In the works of Bouhier i" (1673-1746), the theory of real and personal statutes assumes a peculiar shape. 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 indivisible 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 personal to the effect described, which enacts formalities for a legal instrument (chap. 23, Nos. 14-39). All other statutes Bouhier regards as real, and only valid 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 indivisible 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 fund- amental error, his work is rich in valuable inquiries into details. The work of BouUenois^^ (1680-1768), which is very comprehensive and 1° On Bouhier see Laurent, i. § 351 et seq. 11 Of. Laurent, i. §§ 337 et sea. On the work of the French advocate Froland, Metrwires sur les statuts (1729), see Weiss, p. 503. Jrolanrl represents in particular the so-called personality of the statutes, for instance the determination of questions as to testaments according to the persona] law of the testator, not according to the lex rei sitce. § 20] AUTHORS OF THE EIGHTEENTH CENTURY. 4 1 IS entirely devoted to the conflict of laws, furnishes a continuous com- mentary upon Eodenburg's treatise, and gives in its adherence to the principles there laid down, which BouUenois subordinates to the leading principle of the common good of nations (i. p. 49). It is remarkable that although BouUenois, like Eodenburg, in classifying statutes lays stress upon the words of the enactments, he does not leave their motive out of sight. His accurate treatment of details, his comprehensive acquaintance with the various forms of French customs and usages, the delicate tests which he applies 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 Eodenburg, although, upon the whole, he adopts them, give BouUenois's work a permanent value : there is, however, often a discursive reasoning, losing itself in vague conclusions, that disturbs this favourable impression. Among the many dissertations devoted to our subject, or more or less connected with it, that of Alef (d. 1763, Prof, in Heidelberg) 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 will 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 ah 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 connection with these things. If these attacks upon the ordinary statute theory are clearly laid down, the same cannot be said of Alef's 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 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 will have effect given to them outside their own territory, since it is possible that an act valid by the laws of a foreign country may be by them declared invalid — 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 validity of the law of the domicile need not be invoked to maintain it. It is plain that this theqry is not only incomplete, for he has hardly 42 BAlfs INTERNATIONAL LAW. [§ 21 anything to say of rights of property, but rests entirely on arbitrary assumptions, the results of which 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 doctrines ; we need only mention that, according to Hofseker's treatise {Be Efficacia), 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 subsidiu7n,'he proposes to appeal to the Roman law. But, since Hofseker (1749-1793) 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. • D. THE NINETEENTH CENTURY. The Code Civil and the French Jurisprudence which rests on it. § 21. By the eighteenth century the statute theory was already in course of dissolution.^ One indication of this is the hesitation and doubt which the different authors have in deiining the classes of statutes, some defining them by their effects; some by considering whether in a particular case a statute should be applied as the native law of the person or the law of the thing, or the law of the transaction; some by the arrangement of the rules of law in the system of law under consideration; and some by the intention of the lawgiver. Another indication, however, is the circumstance that the decisions of authors on particular controversies are becoming more and more independent of the categories of this theory of the statutes. It is, however, conceivable that this theory, by the strength of tradition, even apart from its resuscitation by the most modern Italian school, for a time should still assert for itself a kind of continued existence. It is found in the works belonging to the jurisprudence of England and of the United States, but merely as an embellishment : ^ German jurisprudence was the first to get rid of it, and did so more completely than any other ; it is in French jurisprud- ence that it still has most real meaning. The explanation is that, although" the French legislator has not expressly adopted the theory of the statutes, the authors of the Code Civil certainly started from it in combination with earlier French jurisprudence. If we are to take the view that not merely the words of the law, but the theory by which the legislator has reached 1 Fusinato, Introduzione, p. 40, describes it as " micejis difficilis, late diffusa." ' Calvo, however, takes a more serious view of it, ii. §§ 921 et seq. (ii. §§ 706 et seq. of the 4th edition). § 21] FRENCH JURISPRUDENCE IN THE NINETEENTH CENTURY. 43 these words, are to have the force of law, then the statute theory is still recognised as law in France.^ Foelix (1791-1853) is -most closely allied to the writers who attach themselves to the theory of the statutes. He starts with this principle : that, in consequence of the sovereign power that belongs to each State, the application 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 reulia, 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 statv.ta personalia, realia, and mixta, as a starting-point, not because he considers that division exhaustive, but because it is practically useful, and, taken up as it was by earlier authors, has been of real use in the historical develop- ment of the view that is recognised by himself (i. §. 20) ; abandoning any attempt to define personalia and realia — for the definition which he gives, viz. that personal statutes are those that follow the individual wherever lie 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 Foelix'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 extraordinary care, which he cites, and the unanimity of authorities ' Brooher, i. § 45, proceeds upon this theory, which is certainly not ours, and also is not shared by several French authors. In French practice one often meets it. The foundatioii, too, of the work of Aubry and Eau on tlie Civil Law of France (4th edition, §§ 30, 31), is the old theory of the statutes. linger (§ 22, on note 34) expresses himself very trenchantly against this method. Science will have all the freer hand for the very reason that the adherents of tlie statute theory are not by any means at one. ■* Laurent, i. § 404, gives a sharp criticism of the principles on which Fcelix founds, if indeed they deserve that name, and should not rather be called a mixture of arbitrary and in part self-contradictory rules. But we must not forget that Fcelix was the first Frenchman who, after a long interval, treated of private international law in a great consecutive work, and that a diligent compiler need not be an original genius. 44 bar's INTEIiNATIONAL LAW. [§ 21 and of judicial determinations therein demonstrated. But if this unanimity, which Fcelix 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 judgment upon the particular case ; and besides that in such cases a more searching exam- ination will 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 deal with procedure and with crime, in which the public law of a sovereign State may be conspicuously exhibited, are treated under the inadequate conception of a consequence of men's deal- ings with each other, a conception which would include most things that are to be found in man's existence; and, in the second place, that it is much more difiicult to discover the true meaning of the author. Except in his treat- ment of the law of procedure, which is the most successful 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 Fcelix's artificial definitions any case must be reduced, before he can discover where he is to find a discussion of it.^ In spite of this defect, the work was at one time in many respects of the greatest value, owing to the numerous citations and decisions, and the positive enactments that are adduced — and there are here set out concisely and plainly the legal principles of almost all civilised States on private and criminal international law — and by his interpretation of positive enactments of French law in their international relations the author has done excellent service. Now, however, the work is out of date, although reference is still often made to it, and it need only be taken into particular account for the extensive and acute notes with which Demangeat, after the author's death, furnished the new editions.^ ^ Mass^ (1807-1881) proceeds similarly to Fcelix. In him we miss any general principle. He asserts that in each case convenience and justice ^ 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. ' About the same time as Fcelix's works there appeared in Italy the work of Rooco, Bell' uso e autorita dalle Uggi del regno delle due Sicilie cons, nelle relazioni con le persons e col territorio degli stranieri {Svd ed., Leghorn, 1859), a learned book, which was of service in its time, but one that has no sufficient foundation in principle. (Cf. on it Mohl Geschichte und literatur der Staatsiinssenschaften, i. p. 442, Fiore, § 35, the criticism of Pierantoni, Geschichte d. italien. Vollcerrechtsliteraiur trans, by Roncali, 1872, pp. 80 et seq. ) This work is now regarded as out of date. ' Spanish jurisprudence, down to the most recent times, has in substance followed the French, as Torres Oampos, p. 278, shows, and in a special manner the authority of Fcelix. In Spain, however, more than in France, a one-sided exaltation of the officials of the State, and an exaggerated respect for native laws, have been avoided, a direction taken by the older juris- prudence of France, but often protested against by the modern school. In Spain, an attempt has been made to stand side by side with the general science of the .subject ' ' without giving way to petty susceptibilities." Thus Torres Campos, p. 294. S 22] ENGLISH AND AMERICAN POSITIVISTS. 45 must determine the application of foreign law. He disputes at the same time the right of the State to exclude the application of foreign law from its territory, without, however, denying the force of express enactments to that effect (Nc 48). He takes for a foundation the well-known division of statutes in its ordinary acceptation, and, although he declares himself opposed to the class of statuta mixta, and to the rule mohilia persmiam seguuntur, his difficulty is purely verbal, and is not seriously argued out. It is, for instance, a petitio principii to say (No. 55), " II est manifeste, que la capacity d'un mdividu celle, qui derive de sa position, ne peut etre deter- minAe qur par les his de la society, dont il fait partie." His discussion of the law of obligations is disturbed by the definitions he adopts from Foelix, which are artificial, and in part, as we shall hereafter see, untenable ; as, for instance, the division of the results of a contract into foreseen and unforeseen, and of its form into external and internal, definitions and terms which even at the present day play an important part in French jurisprudence. On isolated points, however, his work, which is of considerable detail, and is most closely associated with French law, contains many valuable investigations, and especially in the subject of procedure, which is dis- cussed with interest and accuracy. The division that deals with th^ forms of process, a subject that is for the most part neglected by German authors, might in its day have been called remarkably good. The Positivists of England "and the United States. § 22. Authors in England and the United States, and in particular Wheaton, Burge, and Story, take their stand as much as Foelix, and even more, upon pure positivism. At the same time, the whole of this English and American school of jurisprudence is characterised by a manifold and conspicuous opposition to the jurisprudence of the European continent, and of those countries that lie under the influence of the French school. On the one side, the English and American jurisprudence gives a much wider extension to the application of the laic rei sitae in questions of family and succession law, in so far as immoveable property is involved in these questions. On the other hand, it is inclined, in dealing with the effects of a legal transaction, to allow the law of the place, where the transaction was entered into, to rule the question exclusively, and to leave out of account the law of the domicile of the persons concerned, even where their personal capacity may be in dispute. The former of these two points of opposition is connected with that feudal foundation for the law of real property, effects of which are still felt, although it is disappearing from day to day, and the result of which is gross falsity ; the latter of the two depends upon a certain exaggerated idea of territorial sovereignty. Alongside of these influences, a certain inclination to decide particular cases on grounds of expediency makes itself felt in countries where the 46 bar's international law. [§ 22 system of utilitarianism has its home. In this it is forgotten that these grounds of expediency, if they are viewed too much as the only grounds of decision, are treacherous in their very nature, and besides it is over- looked that a much greater evil for the intercourse of nations is often to be found in varying decisions upon the same persons and the same legal relations, than lies in a certain measure of concession in recognising tlie operation of foreign rules of law even within the territory of domestic law.i ^ Wheaton (1785-1848) dedicates but a small division of his work — about 50 pages — to international law; his plan is almost that of Foelix, except that he avoids attaching himself to the statute theory. A discussion so short, and one which evades questions of principle and proceeds upon a vague and flexible notion of comitas, has at the best little value.^ 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 (31) of particular rules (p. 25), but these propositions — mainly borrowed from BouUenois, and, although quite unconnected and founded upon many different theories, still assumed to be capable of immediate application — 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 comparison of the different systems of law that are recognised throughout the British Empire, is remarkable for the astounding 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 acuteness and great independence, and for many excellent discussions of d,iSerent 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 approbation.^ Story (d. 1845) 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, statutum personale, reale, ^ See Laurent's criticism (i. § 381 et seq.), which is keen, and in many respects excellent, but often too exaggerated. ^ There is observable, in the very most recent times, more approximation in England and the United States to the jurisprudence of the European continent. ^ For Beach-Lawrence's commentary on Wheaton, see below. ^ See, for example, the discussion on the conflict of laws on the question of marriage. ' See, for example, i. p. 132, and i. p. 210, where diflferent determinations are given upon the personal capacity for legal acts. ^ See, too, the declaration of Mittermaier in Mittermaier and Zacharia's Zeitschrift fur Bechtsw. and Oesetzgeb. des Auslandes, vol. ii. p. 283 ; v. Mohl, Staatsw, i. pp. 445, 446, STOHY'S CONFLICT OF LAWS. 47 and mixtum, to describe the effects of particular statutes; and as he developes the principle of the paramount supremacy of 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 universally 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 English Common Law in enunciating 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 m each. This is most conspicuous in his treatment 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 amore. 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 applied, as it thinks best. 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 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 will often be glad to test the case in baud 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 difBcult for a reader to say from Story's discussion of a subject that the decision must, on legal principle, be what he pronounces it to be, and none other. r 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. 48 bar's international law. [§ 23 The Leading Eules established by German Jurists. § 23. It is among German authors that we meet again for the first time the attempt to solve the question of private international law on an uniform general principle. On the other hand, the first want we feel is a want of monographs dedicated to the subject of private" international law : these are comparatively rare in German juristic literature, which in other departments is so rich. We must, therefore, first look at the treatises on Eoman civil law and German private law. Eichhorn (JD. Privatrecht, § 27), Thibaut {Pand. § 38), and Goschen (Cimlr. i. p. 111),^ hold that the law recognised in the native country of the person concerned supplies a general rule for him. 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 follow that he must' be judged according to these laws when he is brought 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 persons, 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, Eichhorn cannot carry out his principle consistently. By a second axiom (§ 36), that, in so far as the rights of an individual have their origin without his domicile, 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 certain conditions, his first axiom becomes indefinite, and cannot recover a definite meaning, as will shortly be shown, even although this additional rule be called in to its aid — viz. that vested rights are to be recognised everywhere.* This last principle, which had been taken up in the eighteenth century by e.g. Titius,* appears in the nineteenth century for the most part merely as a subsidiary principle, although one of some weight. Besides Eichhorn, Gliick (Pand. i. pp. 400, 401) and Maurenbrecher (B. Privatr. i. § 144) use it.^ ^ Further, Keysoher, Wilrtemb. Privatr. § 82. Mittermaier, too, before liim, D. Privatr. ■ 27. In his sixth edition, Mittermaier has taken up Wachter's principle. 2 Wachter, ii. 12 ; Sayigny, viii. § 345, Guthrie, p. 65. ^ The likeness between this view and that of the new Italian school will not be overlooked. *• Jur. priv. Bomani German, lib. xii. lib. i. tit. iv. p. ii. de statutis. ^ On other authors tending to the same point, see Wachter, ii. p. 2. At present Holland (Revue xii. p. 574, note 2) seems to declare for the theory of vested rights. § 23] MODERN GERMAN JURISTS. 49 It cannot, of course, be denied that the legal intercourse of persons belonging to different States is only possible, if it is admitted that persons and things must be recognised in a foreign country as the subjects and the objects of vested rights.^ But the proposition in this plain form yields us, it may well be said, no principle of practical use. In manifold aspects it is true that one State recognises and protects vested rights which have been acquired in another, but as Savigny (p. 132, § 361, Guthrie, p. 147) has observed, the answer to the question whether a right is truly a vested right, postulates that it is already determined by what law the acquisition or vesting is to be judged, and thus the principle so set out runs in a circle. The principle set up by Schaffner comes very close to that of the main- tenance of vested rights ; every legal relation, as a matter of right, and without any assistance from the so-called Gomitas} is to be determined by the laws of the place in which it has come into existence. Thus questions as to the legal capacity of a person are to be determined by the laws of his domicile, for the view of the law (which law ?) cannot possibly go this length, that the legal capacity or status is created by a mere temporary stay in any place. As Schaffner does not explain when it is that a legal relation comes into existence, and his principle has therefore no defined meaning, so his determination in particular cases cannot be deduced from it, and many of the illustrations which he adduces can be turned right round.^ For instance, he says (p. 51) that the question whether a bastard can be legitimated by the subsequent marriage of its parents, is to be determined by the laws of the place where it was born, because it was here that the birth of the child as a fact took place, and the legal relation came into existence. But it may be just as well maintained that the bastard at the time of its birth stood in no legal relation to its father, and that therefore the le^al relation had not at that time come into existence. Schaffner cannot help calling to his aid the spirit and tendency of the laws, the nature of the subject, and other principles (pp. 76, 65). In spite of the fact that the principle assumed by Schaffner is not in a position to solve the questions of international law, while, too, no foundation is laid for it, but it is simply postulated,^ yet we must not fail to notice that our author 6 On this subject, see below, § 32. ' Schaffner describes Oomitas as a haphazard and unlawyer-like principle, which proposes to decide legal questions on political considerations. G. Struve had, so far back as 1831, set up the principle that every legal relation is to be judged by the laws of the place in which it is to work itself out. This proposition might lead to a true principle (see below, § 32). But Struve himself had but a vague conception of it, and accordingly the further development of it, in his most unimportant little book, does not correspond with the start. Struve reaches the most curious results (cf. &.g. pp. 70 ct seq. 90, 116, and Mohl's criticism. GeschicMe und Lit. der Staatswissmschaften, i. p. 449). Struve, besides, proposes to work out his principle in ^o absolute a fashion as to deny the power of positive laws, which are at variance with it, to bind the "''^ s^See, on the other hand, Unger, Oesterr. Prwatr. i. p, 160 ; Wachter, ii. p. 32, 9 Wachter, ii. p. 32. D 50 BAI^S INTERNATIONAL LAVi>. [§ 23 in a concise way sets up a number of learned problems, and by his Icnowledge and the attention which he gives to the principles of English law, which often diverge widely from the common law, he is often led to excellent observations.^" The literature of the subject is very copiously used, but certainly not sufficiently thoroughly ; mistaken views of other writers he often combats with success. His last chapter contains a short exposition of the law of process, in which, however, he passes over the important subject of the execution of foreign judgments. Piitter and Pfeiffer propose in the most absolute way that the law of the judge, who is to determine any legal dispute that may have arisen, should rule. The former applies this principle so unreservedly that he is led to consequences that place the security of all international 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 argu- ment, that these have no clear conception of the relations of different countries in matters of public law, 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, for application 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 lawsuit 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, notwith- standing this, goes on, is, in Putter's view, proof that the rule stated above must be correct ; especially as the merchant who buys for sale, needs only to sell the goods he has bought to a third party, in order to escape all claims against him for recovery ! (p. 74.) As Piitter himself sometimes surrenders his principle entirely [e.g. §§ 14, 115, and 140), and has to have recourse to the assumption that the officials 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 under 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 his work, 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)." Pfeiffer's work, as the title shows, does not go into detail. The principle already 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 ^^ See, for iust-ance, his remarks on the law of succession, p. 16.5. 1' 111 the ArcMv. iiherdie civil. Praxis, vol. 37, p. 384, Piitter attempts to defend his theory in a special manner against Savigny's views. As against Savigny's doctrine of the friendly admission of foreign law, he takes up the j.osition that every State jealously guards its own supremacy. ^^] MODERN GERMAN JURISTS. 51 cases that fall within it, without respect to persons or things. Pfeiffer maintains this position on the ground that knowledge of foreign law is as a rule defective, and proposes to exclude its application even where it IS sought to further the intention of the parties by allowing them the assistance of a dispositive enactment recognised in some foreign country. 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 will the legal relations between him and the defender, by giving him the option of appealing at his own pleasure to one court or another— Pfeiffer 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 pleasure.^^ g^t 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 to embarrass us in either case. It is plain that the author will find just as little support for his theory in the unattainable assimilation of the laws of all States.^^ The equality of citizens and foreigners before the law, which Pfeiffer in the end appeals to, and which is, as he thinks, the only principle that can be consistently carried out along with the axiom already stated, becomes, if considered closely, in many cases a complete denial of legal rights to foreiguers,i* 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',? theory negatives the possibility of international intercourse.^^ The French writer 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 application of foreign laws, reduction of the judgment, in respect that no violence has been 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 12 p. 35. ' 13 p, 54_ " Savigny, § 348, Guthrie, p. 69. 1^ It would be well if both of these works were allowed to fall into oblivion. They are completely worthless. Putter as well as Pfeiffer wrote without any pains on a subject which he neither understood nor had tried to learn. The theory that sets the lex fori so much in the foreground, dates, as a matter of fact, back beyond the Middle Ages. The proposition that the litis decisoria, i.e. the determination of material questions of law, are independent of the lex fori, is old. Cf. e.g. Paul do Castr. ad Leg. 1. C. de S. Trin. No. 11. Bald Ubald in L. 1. 0. ne filius pro patre, No. 10. Curt. Kochus, De Statutis, sect. 9, §§ 38-42 ; Maseardus conol. 9, No. 8; Burgundns, 7, No. 5, Boullenois i. pp. 533 536 ; Hert. iv. 70 ; Merlin Kep. Vo. Preuve, T. vi. p. 620. 52 BAJi'S INTERNATIONAL LAW. [§ 24 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 enact- ments are inadequate for his end, combines therewith various propositions taken from the older statute theory (§§ 180, 181, 204-220), 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 Civil, 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 applied to his case — the book contains many details that deserve acknowledgment. Very many judgments of French courts are reported by him, and at great length. This view is modified in a peculiar fashion by Kori.^® He makes the substance of the judgment dependent upon the possibility of summary execution, and proposes that the form of a contract executed by a foreigner in our country, and the legal capacity of foreigners within our territory, should be determined by our law ; but, as a rule, to this eifect only, that the property of the foreigner which is within our country, but not any property beyond it, should be dealt with by the judgment which may be pronounced. 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 fall 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.^^ Fundamental Works. 1. V. Wachtee. § 24. We now come to those German authors who have given a new and lasting direction to the whole science of international law. v. Wachter, in his comprehensive work begun in 1841, sets himself as his immediate task that he shall submit the statute theory to the most 1^ This work is short, and does not enter much into detail. '" See "Wachter, vol. i. pp. 304 et seq. ^^ Brinz appears inclined (§ 23) to found modern private international law exclusively on the principle of the recognition of the legal capacity of foreigners. From this, it is said that the recognition of the vested rights of foreigners, and the rule '•'Locus regit cictum" follow. But this latter rule is set up in opposition to the principles of international law as an anomaly, and it is hardly possible, in deciding particular questions, to be satisfied with a completely abstract principle which ignores actual systems of law (see Brinz himself, p. 124, " That is ou 24] WACHTER. 53 searching examination with special regard to the German literature only on the subject. Although his criticism is not just to the historical development of the theory, in that it forgets that Eomanistic and Germanistic conceptions must often, and especially in the case of the so-called conflict of laws, lead to contradictory results, still he shows irresistibly the impossibility of holding the statute theory as it is usually conceived; at the same time, he shows that the other exclusive and abstract theories, with which the solution of the problem had, up to this time, been attempted, are equally untenable. Only two propositions^ seem to be left : — First, the proposition that any judge determining a lawsuit is uncon- ditionally bound by the law of his own territory, and. Second, the proposition, that our enquiry must be, whether that very law, in its true meaning and spirit, does not to a certain extent decline the decision of legal questions, which have reference to foreigners or a foreign country ,2 and commit it to one or other foreign legal system. The former of these two propositions is simply a consequence of the subordination of the judge to the law, but on the other side Wachter could not shut his eyes to this, that an unthinking application of native law alone would make orderly intercourse with foreign countries impossible and would be at variance with the most patent facts and requirements. Now, since statutes do not generally make any express provision as to their application or non-application in international relations (as we may phrase it, for shortness' sake), the only thing left was to extract from the meaning and spirit of the statutes the necessary rules for their application or non-application. In fact, both propositions are incontrovertible, and at the present day there is scarcely a thorough and reasoned judgment pronounced in any matter that touches on private international law, which does not make use of them in one direction or another. But there may be very various ideas as to the meaning and spirit of laws in reference to international intercourse ; the historical development of private international law itself shows this.^ The ancients interpreted longer a question of international law," he says of the question of the recognition of adoptions, marriages, etc., entered into by foreigners in a foreign country. Why not ?) 'Cf. i. pp. 236 et seq. and pp. 261 et seq. "Wachter always adhered to the principles which he here enunciated. Cf. Wachter, Pandekten, edited by 0. von Wjichter, i. (1880) § 31. ^For this second proposition there may no doubt, as we have already remarked, be found several points of connection in earlier literature, and even among those who represent the statute theory. Wachter himself calls attention to this (ii.'p. 16), .see, for instance, Maevius, ad jiis Liibec. Prolog, qu. iv. No. 26. Stryck, Diss, dejuriprineipis extra territorium, C. iii. No. 50) No. 148, No. 166. ^ The immediate foundation for the second of Wachter's propositions is, however, supplied from the point of view of the interpretation of particular territorial systems of law, by the pro- position, of which Wachter takes no notice, that a process cannot be meant to create new rights, but to declare rights which are already in existence. 54 bar's international law. [§ 25 their laws in this aspect differently from the Middle Ages, and they again thought differently from the authorities of the present day. Thus an a priori enquiry as to the meaning and spirit of laws runs a risk of falling a victim to the caprice of the individual, unless some other fixed points can be reached. These fixed and positive points which general usage and recognition supply to us have, however, in many cases escaped Wachter. He is more alive to differences than to points of agreement, just because he goes to work too ex- clusively with Eomanistic conceptions : it is also a matter of some importance that non- German modern literature, and particularly that of England and the United States, finds no place in Wachter's enquiries. International law is just the science in which one-sidedness cannot be avoided, unless the conflict of opinions is viewed in a mirror set up in some territorial law which differs widely from our own. In this way, then, there is no doubt that, although Wachter, in this field as in others, has made himself conspicuous by a subtle and at the same time practical juristic instinct, his decisions on particular points are not infrequently assailable in details. It is also true that a large part of the merit which he has shown in the general theoretical regions of private international law, has been lost again by the proposition which, in despair with the vagueness of any interpretation that can be put upon the phrase, " meaning and spirit of the law," he has called in aid, viz. that in doubt the judge, to whom application is made to decide the case, has to apply the law of his own territory.* This is the explanation, apart from the obvious influence of a famous name, of the fact that Wachter's laborious work has so quickly and completely receded into the background behind the brilliant exposition and more philosophic conception of Saviguy, and is generally in foreign countries less respected. 2. V. Savigny. § 25. Savigny, too, does not fail to recognise that the judge must primarily be referred to the laws of his own territory. But he does not appeal to the supplementary proposition of Wachter which we have just mentioned. Instead of that, be holds it as a mere accident and immaterial which court — the court of the State A or of the State E — has to determine the dispute. His ground of decision is that States at this time of day all stand together in a ^ Against this last proposition, see Savigny himself (p. 126, § 361, Guthrie, p. 143), "the proposition is said to apply in every case, except when the authority of another local law can be completely established. Thus the conclusiveness of the principle appears to be assumed in advance for the numerous cases in which plausible reasons, weighty authorities, or decisions of courts, can be adduced for one side or the other. Here, therefore, the method of the civil pro- cedure, in wliich every one on whom the burden of proof lies loses his cause, if ho does not succeed in his proof, is to some extent adopted." Wachter besides, in following his principle, has fallen into a difficult position in cases where he has not to deal with the laws of different States, but with the divergent laws of provinces of the same State. For this he has promised a solution, but has not given one. (Cf. ii. pp. 3 and 20, note 208. PandeUen, § 31 ad fin.) § 25] SAVIGNY. 55 great community of trade and legality. The natural result of this is not a jealous and one-sided advancement of their own territorial sovereignty, but a friendly recognition, resting upon the nature of the subject, and not therefore merely capricious, of the legal systems of other countries in reference to those legal relations which in their nature belong to these other systems. We can, then, at once retain the first proposition, by which the judge even in private international law must show obedience to the laws of his own territory, and at the same time say, also in accordance with Savigny's conception, that private international law in a practical view is simply a question as to the interpretation of the laws of different States. But this interpretation must proceed as may be demanded by the existence of that general mutual recognition of each other by the legal systems of different countries, within the limits of their jurisdiction, which limits again are fixed by the nature of the subject — i.e. the general intercourse of nations. If, then, it must be admitted that there is an opposition between the con- ceptions of Wachter and Savigny, it is however not so important as, for instance, Keinh. Schmid has assumed. For, if "Wachter's particular discussions are followed out, it will be observed that he too, like Savigny, starts from a recognition of the operation of the foreign l^w in the region to which it belongs ; only "Wachter is not so fully conscious of what he is doing, and his work is not so comprehensive ; besides, he is often disturbed by the influence of that erroneous proposition, which prescribes the application of the native law of the judge in cases of doubt. He is often, too, disturbed by the mistaken belief that all those conclusions which Savigny, in accordance with his fundamental idea, could draw most freely from the nature of the subject, and could set up as law already recognised, are to begin with mere conclusions de lege ferenda, which belong to the region of mere expediency, and may be taken up according to his good pleasure by the lawgiver of any territory, but, also just as much at his good pleasure, may be rejected by him.^ On the other hand, in ray first edition I have declared myself against the much admired formula, which is so often quoted, in which Savigny attempted to explain his principle in more picturesque fashion. You must, says Savigny, seek that domain of law to which the particular legal relation in its nature belongs, in which it has its seat. I have 1 See "Wachter, i. p. 240. Ko one, however, could assert with certainty that it is never on any account permissible to interpret an existing law by grounds of expediency : all that may be said is that the limits to be observed in such oases cannot be fixed a prion. On the other hand, every State, as we have already said, has the power of withdrawing itself from the general rule, for the most part to the loss of its own people; the rule, therefore as Puohta notices, must have exceptions. The safe juristic sense of Thbl (§ 113) recognised this and saw that in private international law no sufficient foundation for general principles coUld be laid without an exact enquiry into details (pp. 175, 176) ; this enquiry could not take place in the introduction to German private law [which was his subject], and therefore Thol went too far in rejecting general principles, and fell short of the proper points of view, which, however, as details are further mastered, are exhibited with certainty. The subtle, but, I am sorry to say, too short remarks of my honoured teacher, and subsequently my colleague, 1 shall notice as I come to the particular questions with which he deals. 56 bar's international law. [§ 25 already said, in my first edition [p. 59 of translation], that this proposition, admitting as it does of the most various meanings, required for its applica- tion to particular chapters of law a further development, which is often to be desiderated in Savigny. What, for instance, would hinder us from assigning the legal relation to the State whose judge had to decide upon it, or generally to the territory on which it makes its appearance, and so, under certain circumstances, to a great number of different territories ? Savigny, accordingly, can do no more than postulate (p. 134, § 365, Guthrie, p. 166) the application of the laws of the domicile to determine the legal capacity and status of the person. 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 voluntarily, for this single legal relation, to the local law that prevails in that territory." Now, upon this it is to be remarked, that in this sense all laws touching pro- perty rest upon voluntary subjection. Eenounce the property in question, and you are no longer subject to the law. But it is nowhere demonstrated why these laws, which are valid in the place where the property is, should demand this vgluntary, or more correctly, this necessary subjection in relation to questions connected with them. We shall show, again, that Savigny 's proposition is not merely an 'indistinct figure,^ but contains a really erroneous conception. A legal relation, as a general rule, with regard to which we can raise the question whether this or that territorial law should be applied, never belongs exclusively either to the one or the other domain. It may, if we wish to use an image, have its roots or its stem in one, while its branches stretch out into the other. In spite of this error, in spite of his not infrequent failure to work out details with care, without which no certainty is to be reached in the domain of private international law ; in spite, too, of this, that he is not quite just to the opposition of Eoman and Germanic legal principles and conceptions in private international law,^ Savigny's merit stands undimin- ished. That merit is to have been the first to take up with full conscious- ness his starting-point in the idea of an international community of law which restricts all territorial laws, and defines their competency, and in thinkin", not of a conflict of legal systems, but of a harmonious combination of all.* 2 See, on the other hand, Walter, D. Frivatr. § 43 ; Brinz. Pand. i. p. 102, note 8 ; Devnburg. Pand. i. § 45, note 6 ; Torres Campos, p. 306. Thbl also, p. 168, although upon the whole he follows Savigny's views, seems not to have been pleased with the indistinct figure. He conceives the question (agreeing rather with "Waohter) as one of the interpretation of statutes or laws. Every statutory provision as to this conflict of laws is a provision as to the interpretation of laws. Accordingly, in every doubtful case, one must enquire under the supremacy of which law it falls, i.e. which law regulates it. But Thol's conception implies in one relation certainly, as we have said, a step back from Savigny's position. 2 Cf., for instance, what he says as to succession in peasant properties (p. 306, § 376, Guthrie, p. 279). This rests not upon economic conclusions, but is a remnant of German' succession law. * Cf. especially p. 29, § 348, Guthrie, p. 72. T,nurent, i. § 408, gives a peculiar criticism of Savigny's principle. We shall return to it later, in estimating the modern Italian school. § -^] FOLLOWERS OF SAVIGNY. 57 German Literature following on Savigny : Modifications of Savigny's Principle ; Attacks on it ; Respect paid to it in other Countries, ESPECIALLY IN ENGLAND AND THE UNITED STATES. § 26. In order, however, to be able to treat the principles of Wachter and Savigny as in reality at one, it is certainly necessarv to put altogether aside that subsidiary principle of Wachter, which confuses his whole theory, according to which the lex fori is in case of doubt to be applied. I mean that it must be put aside not merely if one proceeds from the notion of a certain common bond among the different territorial systems of law— which possibly was in his time not yet recognised— but even if one starts from the point of any one of the territorial systems.^ I attempted that in my first edition, by pointing to the principle, which is recognised among all civilised peoples, according to which the suit is meant, not to create new rights, but to clear rights which are already in existence. If the law of the court that is to give judgment were, in every case, or even in cases of doubt only,^ to pronounce 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. But the issue cannot, in accordance with that generally accepted principle, 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 serious practical results of a theory which makes the import of a legal relation depend on the Ux 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 country, in bargaining about subjects situated there, should follow the law of the place. If, then, the application of foreign law seems, under certain circum- stances, 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 reality, I further remarked, such a distinction between objective and subjective demonstration does not exist. But if the principles that are postulated for the various branches of ^ This inference has recently been followed by Martens, ii. p. 289. ^ In my first edition, it is true that I did not add "or even in cases of doubt only." At that time my argument was mainly directed against Pfeiffer and others ; but it holds equally against Wachter's subsidiary principle. I had not at tliat time seen the criticisms of Reinhold Sclimid, which will be discussed immediately: as has been said, he discerns a difference between Wachter and Savigny that goes very deep. 3 P. 71. 58 bar's international law. [§ 2f) our subject are in harmony, with each other, and if these principles crai 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 the view adopted by 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 believes that he will have pointed out an objective truth; and, even although our jurisprudence shall concern itself with one particular territorial system only, we can arrive at no greater certainty, at least not in any of those cases in which there is the slightest possibility of a doubt. Eeinhold Schmid, who- treats of private international law in one part of a monograph which is not very comprehensive, has taken objection to this way of dealing with the subject. One of his objections we have already considered in paragraph 4. He derives his second from the difference between Wachter and Savigny, according to . his erroneous conception of that difference. A third and last objection is directed against Savigny's view and mine alike. "We have not hitherto mentioned that Savigny indicated the existence of a particular class of laws, which, in his view, do not find their origin or object in the pure domain of law, but rather rest on moral grounds, or grounds of public advantage, puhlica utilitas. He calls these coercitive {Zwingende) laws, and is of opinion that, in so far as such laws are concerned, every State stands out completely separate and distinct ; that here, therefore, the legal community of States, recognised though it be in other matters, ceases, or, as one might equally well say, is proclaimed to be excluded from the particular State in ques- tion. The judge, then, or the territory in question — and Savigny has not thought out this alternative quite clearly — excludes the application of all foreign rules of law that differ from his or its own.* Eeinhold Schmid has used this idea — which in itself is certainly not quite clear, and to which we shall return again below, because the modern Italian school has attached itself to it — as the basis for a far-reaching attack on Savigny's detailed enquiries, and also, if I may say so, on my own. The attack, however, is also made against much that has beeft adopted by general consent at least all over the Continent of Europe. J?rom this exclusion of foreign law by positive, coercitive statutes, lie draws the conclusion that the application of foreign rules of law must as a general rule be rejected if it would disturb or unsettle the native legal order. Schmid does not, of course, fail to recognise that the application of foreign rules of law in every country necessarily introduces a certain disturbance into the uniformity of legal decisions, but that this disadvantage is generally more than counterbalanced by the advantage of an orderly international intercourse. In all cases, however, in which this does not happen, in which the disadvantage outweighs the advantage, the preference, says * See Savigny, p. 32, § 349, Guthrie, p. 78. § 26] FOLLOWERS OF SAVJGA Y. 59 Schmid, must be given to the native law over the foreign law, be the former a coercitive law or be it not. Now, although we cannot in private inter- national law dismiss this last deliverance quite offhand, still in most cases it will lead to a certain amount of arbitrary or capricious conclusions. This caprice discloses itself pretty frequently in Schmid's observations on particular cases, which in many other respects deserve to be highly valued. Nothing but a careful study and use of literature, and of the practice that has disposed of particular cases, can protect one from this caprice in private international law, since theories of international law cannot fairly be charged with the duty of creating law anew. Discussions which are purely general, and which avoid any such laborious enquiry into details, have clearly no value to speak of.^ On the one hand, many points, as we have already noticed, are better established in practice than a superficial consideration might lead us to suppose ; and, on the other, the author who gives himself up entirely to general observations, fails to notice to what conclusions these will lead him in particular cases. Schmid's work, which does not extend to the law of process, closes the series of German monographs which treat of private international law as a whole. We have only further to mention the wonderfully careful and valuable exposition of international law, as recognised in Germany, which is to be found in Stobbe's Deutsches Privatrecht (i. pp. 198-254, 309-326),« and also the short sketch of international law in general, also very careful and very rich in positive information, which A. V. Bulmerincq gave in Marquardsen's handbook of public law, ii. 2, pp. 208-241. I too, in 1882, published a short sketch of private international law for the fourth edition of Holtzendorft's Encyclopaedia of Jurisprudence (pp. 674-718). Bulmer- incq's sketch pays more attention to positive details, while in my sketch I have rather turned my attention to the exposition and criticism of the rules depending on the principles of the science, a method in accordance with the plan of the Encyclopsedia. German literature has little to say on particular questions of private international law. The French law of respite or delay in payment {moratorium), passed during the French and German war, then the case of De Bauffremont, and the dispute which arose with the managers of the Austrian railways in consequence of the demonetiza- tion of silver, much excited German literature from time to time. In the department of the law of process, apart from a work of Francke's on the operation of foreign judgments in the German Empire, which belongs more to the positive law of German process, the paper by Lammasch (Innsbruck), entitled, "Staatsvertrdge, hetreffend BechtsMllfe undAuslieferuvg," in HoltzendorfPs "ffandbuch des Volkerrechts," vol. iii., must be mentioned as ^ As against Sohmitl, see Stobbe's apposite remark, § 29, note 12. ^ Bbhlaii, MecMenburgiscJies Privatrecht, i. pp. 420 et seq., endeavoured to deduce the principle of private international law from the equality of foreigners and natives in the eye of the law, but did not win much reputation thereby. (See, on the other hand, Winscheid, Pand. i. § 34, note 6, and my notes in the Munchener Krit. FierteljahrssArift fur Gesetigebung, vol. 15, pp. M et seq.) 6o bar's international law. [§ 27 a valuable work. The doctrine of allegiance has been specially cultivated in Germany by v. Martitz.'' Savigny's theory, however, may unhesitatingly be described as the prevailing theory ; it is followed, although not perhaps in all its particulars, by the most eminent authors^ upon Eoman and German private law.^ And in the decisions of courts there are many references made to this theory. It is no other than Savigny's theory which Bucher puts forward in his " nmiveau traiti de droit international privd au double point de vue de la thiorie et de la pratique" (1876),^" since his conception of private international law is the determination of the competency of the legislatures of the individual States, the foundations for that competency being to be found in the nature of the subject matter, in the interests which constitute the basis of all law,^^ in the nature of sovereignty, which is at once a personal and in another direction a territorial bond.^^ Johann Vesque v. Piittlingen's Handbook of Private International Law, as it is recognised in Austria-Hungary, is at least under the influence of Savigny's theory, and is remarkable besides for an accurate investigation of details. The author, however, is of the opinion that the provisions of Austrian law, although they may not all approach closer to the modern scientific standpoint, yet contain special regulations, or regulations based upon sound principle, for most cases of private international law ; as a rule, this makes it unnecessary to go back upon what is represented to be the deliverances of " the law of nature." The most Eecent Literature of England and the United States; (Phillimore, "Westlake, Beach-Laweence, Wharton), and its rela- tions TO Savigny's Theory. The Netherlands, Belgium, Eussia (ASSER ElVIER AND V. MARTENS). § 27. While Vesque v. Piittlingen, therefore, rather takes his stand on the ground of pure positivism, but in doing so confuses the " law of nature " and " the nature of the subject matter," Phillimore fully recognises ' Stoerk's new work in Holtzendorfifs Vollcerr. vol. ii., must be mentioned in relation to allegiance. 8 So Walter, Deulsclies Privatr. §§ 140 et seq.; Gerber, D. Privatr. § 32 ; Winscheid, Pand. i. § 34 ; Beseler, 1). Privatr. i. § 38 ; Fr. Mommsen, Archiv. fur d. Ciml. Praxis, 61, p. 149. ' V. Martens, ii. p. 286, may also be called an adherent of this theory. 1° The introduction is printed in the Bevue, viii. pp. 35 et seq. (An earlier paper of Brocher is in the Eevue in 1871.) ^'^ See, on this subject, the critical notice of Westlake in the Revue, ix. pp. 606 et seq., with which I am certainly not altogether in accord. 12 In his comprehensive work, " Cours de droit international privi suivant les principes consaeripas le droit positif francais (3 vols.), Brocher (see above, § 21, note 2) thought himself bound to take the statute theory as his basis, because the authors of the Code Civil started from it. All Brocher's works are remarkable for their consideration of the subject from all points : Brocher does not easily forget that everything has more than one side, and any one who proposes to set up a new view on a question of private international law, would do well to see if Brocher has not expressed himself upon it. It is his great caution which in many cases damages the results at which Brocher himself arrives ; one not unfrequently desiderates clear- ness, and in formulating his own views, Brocher Is not very successful. Brocher is averse to all hasty and revolutionary theories, but yet he pursues a certain ideal and scientific course. ^'^] RECENT ENGLISH LITERATURE, ETC. 6 1 and respects Savigny's principle as such, and its inliuence is unmistakably to be met -svith in the works of Westlake, Beach-Lawrence/ and Wharton. All these most meritorious works, of which Westlake's and Phillimore's belong to England, Beach-Lawrence's and Wharton's to the United States, pay more regard to the modern literature of the European continent than the older works of the English and American jurisprudence did. This is more especially the case with the most comprehensive and richest of these works, that of the learned American, Wharton, who at the same time always takes the trouble to enter into the views of the jurisprudence of other countries where it differs from that of his own country, and to be just to it. As a matter of fact, there is no doubt that the jurisprudence of the United States rests upon its old traditions to a greater degree than that of the most modern English school. The active intercourse with the con- tinent of Europe makes itself felt even in the jurisprudence of England. The works of the Belgian jurist Asser, and of the Eussian lecturer on public law, Fr. v. Martens, rest also upon Savigny's principle, although they do not take it expressly for their foundation. Asser's work,^ although it has not a very wide scope, is distinguished by a fine practical instinct, and devotes particular attention to commercial law. In the French edition, its value is materially enhanced by the frequent critical notes of Eivier, which take into account the more modern literature. The chapters of v. Marten's work on public law, given up to private international law, count among the shorter works on the subject ; but the author, so far as he could within his narrow limits, has considered and criticised the most modern literature without prejudice or partiality, and the necessities of legal intercourse find themselves appreciated most practically by this aiithor. Despagnet, the most recent of French writers, attaches himself to Savigny's theory. The new Italian School and its Adherents in Belgium and Feance. Mancini, Esperson, Fiore ; Laurent, Durand, Weiss. § 28. On the other hand, the new Italian school^ stands in real opposition to the German doctrine based on Savigny, although happily the practical results to which it attains do not differ so considerably from those of the German school, as might be expected from the way in which ^ Westlake's private international law is shorter and more positive, but it rests upon a thorough acquaintance with foreign legal publications and literature. In Beach-Lawrence we have a most careful review of foreign literature and legal systems, while the author himself frequently fails to express his own opinion, or merely hints at it. 2 German translation of Asser's original work, by G. Cohn (Conrad), Berlin 1880. ^ Brusa, however, in his excellent notes to the third edition of Casanova, Lezioni del diritto internazionale, ii. pp. 325 et seq. — Casanova having merely repeated the maxims enunciated by Rocco — defends Savigny's point of view against the Italian school with great breadth and impartiality. In the same way, the Spanish jurist Torres Campos, in his remarkable treatise, " Pririeipios de dereeho mternatim«l privado" has attached himself rather to the German school (of., especially, p. 306), 62 bar's international law. [§ 28 it formulates its principles. In spite of this opposition, there are points of connection between them, and Laurent goes so far as to say that it was due to nothing but the influence of the political circumstances of Germany, which showed themselves to be unfavourable at the time to the develop- ment of Savigny's leading idea, that Savigny himself did not reach the principles of the modern Italian school. Like Savigny, the modern Italian school ^ starts from the principle of the legal community of nations. Savigny, however, deduces from that no more than a certain limitation of territorial sovereignty, which in the abstract is unlimited,^ a limitation the character of which must be determined by the "nature of the subject," so as to fit this or that particular legal relation which may be in question. The Italian juris- prudence proposes to substitute for this limitation of territorial sovereignty an abstract rule which shall be universally applicable, and it finds this rule by dividing all systems of law into two parts. The one is merely an expression of personality, or, since personality is in its turn determined by nationality, an expression of nationality ; * the other takes its rise from public order, the necessary respect that must be had for the whole as distinguished from the individual, for public welfare and for public order. If, then, personality in its national character is to be recognised in foreign countries, the next inference is that the national law of this personality must be also recognised ; the one cannot be separated from the other.^ But the territorial laws of public order of the community must not suffer. These must always, in case of conflict, be preferred to the individual. Thus, in the view of the Italian school, the same principle which determines, or should determine, the native law of every State, holds good also in international law. The freedom of the individual is the principle, but this must always give way when public order, the welfare of the whole, peremptorily demands that it should do so. But the instance which they prefer to use, in order to make it clear that the laws, which are to follow the individual into a foreign country, are in truth merely an expression of the natural (or national) personality, which depends on 'the race of the ^ Bi'ocher, in the Be.mie. for 1880, pp. 531 e,t seq., gives a temperate but not altogether approving review of the new Italian school (cf. Brocher again, Nouv. traiii, pp. 52 et seq. L. Strisower, in Nos. 20-26, of the Wiener GericMshalle, 1881, has a sharper but most opposite review of the school, which has appeared separately under the title, " Die Italiemische Schule des Intemationalen PrivairecMs. ^ See especially Mancini, the founder of the school, in J. i. p. 228. To regard foreign law is described as the "devoir stride" of the State, Laurent i. § 402 (p. 593), La comiti n'a rien de commun avec le droit ; elle en est au contraire la negation. * Mancini, ut sup. cit. p. 285, whei'e the recognition of the individual's nationality is traced back to the recognition of the individual's freedom, by which others are not to be injured. Laurent appeals immediately to God's appointment, by which personality was created (cf. e.g. i. §§ 26, 6, 221. See, on the other hand, Brocher, Mev. 13, pp. 537 et seq.) ^ The proposition is also stated in this way : every sovereign power may exercise its rights even beyond its own territory, in so far as it does not thereby trespass on the rights of another sovereign power. In this way the possible operation of the law outside the territory of the lawgiver is made parallel with the freedom of the individual, which finds its limitations only in being forbidden to trespass on the rights of others. Su Fiore, § 26, ' § -8] THE NEW ITALIAN SCHOOL. 63 individual, is that of personal capacity ^ for legal acts, and in particular that of minority and majority. There is no doubt that the lawgiver desires to place immature persons under tutory, and to allow mature persons to act independently. Jkit maturity is a natural condition of the individual, determined by the race and the climate to which he belongs, and in which he has grown up. The national law in this case merely follows nature, and is an expression of that which lies in the nature of the person. In this way the legislator of a foreign territory, if he recognises the personality of our countrymen as such at all, cannot help recognising it as minor or major, according as the domestic law of the individual may lay down. Personal law is itself the personality ; it is, as Laurent says, like the blood which fills the veins, the marrow and the bones.'^ And since all private rights are recognised for the sake of the persons to whom they belong, so private international law as a whole recognises no other law than the domestic law of the persons® concerned, limited only by the territorial laws of public order.^ But, again, the will of the individual in itself is not tied to any territorial limits ; individuals may expressly or by implication subject themselves to a foreign law, and this subjection in its turn must be recognised everywhere, in so far as the territorial law of public order is not thereby infringed. These general rules, which were for the first time set up in a famous introductory lecture by Mancini^" in 1851, and were repeated and further developed, especially by Esperson, apart from the brilliant and talented rhetoric and dialectic in which they were set out, necessarily awakened all the louder echo in Italy, as the young kingdom had just established her unity, and taken her place in the family of European States under the motto, " Nationality and Freedom." These principles have become in Italy almost an article of faith in jurisprudence ; ^^ and, as Italian juristic science began to treat international law, and private international law particularly, with special zeal, and in its details did much, as must be confessed, that merits the highest recognition, working always in a liberal spirit for the service of trade and intercourse in general, the principles of the Italian school have gained many adherents in France.^^ It makes it all the more impos- " Laurent, i, § 370. " Laurent, i. §§ 409, 428. Cf. Manoini, Eapport, travaux prilim. de la Session, de la Eaye, de Vint, de dr. intern. {Bemie vii. p. 329, and particularly p. 349 ; Esperson, Jour. viii. p. 248). ^ Esperson, Jour. viii. p. 209. " Toutes les lois itant personelles." Laurent, i. § 126. ' Mancini, Rapport in Revue, vii. p. 353. ^^ Delia nazioruilita comefondamento de Diritto delle gente. " Cf. e.g. B. Gianzana, i. No. 29 et seq. This enthusiasm leads, as may be understood, to unjust conclusions as to other systems. Thus Gianzana (i. No. 26) is of opinion that the English system of territoriality is a negation of human personality, and robs men of the capacity of travelling over the world and subjecting themselves to other laws. English jurists arc of opinion that the English principle of domicile, as distinguished from that of nationality, is the very thing to create the possibility of unlimited travelling, and unlimited subjection of oneself to the laws of other countries. 12 So, for instance, Durand (cf. especially § 120, p. 238), Weiss, p. 232. Weiss, in place of the word "nationality of law," uses tbe title, "personality of law." 64 bar's international law. [§ 28 sible to pass them over in silence in Germany, that that most comprehen- sive work, which concludes private international law, the work of Laurent. that Belgian law professor who is so much respected in the whole French and Eomanistic world, takes them up with enthusiasm. The theory, too, seems to recommend itself to notice from a historical point of view, for we believe that a connection is to be established between it and the statute theory .^^ We saw that in Prance and Germany the supremacy of the lex domicilii, or, as it was afterwards called, the statutum personate, which had been heralded by the later commentators with a certain amount of predilection, had in the course of centuries gained more and more ground as against the lex rei sitce or statutum personale, in con- sequence of the increasing force of the conceptions of the Eoman law. The Italian school and Laurent felt themselves justified in proclaiming the goal of historical development to be that theory which, as a matter of principle, looked upon all private law and rights as an appendage of the personality of the individual, and as subject to the personal statute which was everywhere supreme. And although they could not deny the exclusive authority of the lex rei sitce in certain cases — e.g. in true questions as to immoveable subjects, this exception seemed to them to be merely a special application of the restraining force of the laws, whose object it is to protect public order.i* The new Italian doctrine might therefore be counted as a logical development of the doctrine of the later commentators, and this seemed to have all the stronger foundation, if the new doctrine of the operation of the wishes of the parties, which must be recognised every- where, were set up as a parallel to the old category of the statutum mixtum. The new Italian school has, besides these, still closer points of connection. It does not much concern this branch of the subject that Mailher de Chassat set up, so long ago as 1845, a doctrine which resembled this theory in many aspects, but which, so confused was it, did not obtain much respect.i^ '^ Of. e.g. Manoini, Bemie, vii. p. 354 ; Laurent, i. §§ 200 and 344. It is certainly true that in the statute theory, as time went on, a wider field was assigned to the so-called personal statute. The cause lies simply in the advance of the idea of the Roman universal succession in the law of inheritance, in the operation of this idea upon the law of the property of spouses, and in the decline and disappearance of feudal law, and the institutions which were analogous and akin to it. ^"' Laurent consistently calls these ' ' statuts riels. " " He wishes to have a foreigner recognised in the new international intercourse — which in his view rests on the principles of intelligence, humanity, and nationality — as the repre- sentative of the- nation to which he belongs ; private international law is to him simply the law of one nationality within the domains of another, and is to he distinguished in his view from the conflicts of the old statutes, which were, as he thinks, merely the products of egotism and the feudal system (§§ 53, 337). The conflict, according to him, resolves itself into a conflict of the different sovereign powers. Mailher thinks that in this proposition he has discovered the solution of the question, while at the same time he invokes the assistance of a second proposi- tion, viz. the independence of nations. It is not clear how these two propositions, the free development of foreign nationality in other countries and its limitation by the laws of these countries— to use Mailher's own expressions (pp. 323, 324) — are to be reconciled with eauh other. § 29] MODERN ITALIAN SCHOOL. 65 Criticism of the Modeen Italian School ; (Steisower) ; Defence AND Modification of its Doctrines by Fusinato. § 29. It is, however, worth remarking that Savigny (pp. 35, 36, § 349, Guthrie, p. 78) as a matter of fact distinguishes two classes of laws' to this effect, that he regards the one class as enacted for the sake of persons who are the possessors of rights — the purely legal enactments in his view- while he assigns to the other class an end and object beyond the province of pure law, an object that belongs to morality or 'pullica utilitas. This division has an unmistakable resemblance to that upon which the principles of the modern Italian school rest. That Savigny only used it by the way, in order to found upon it the exception to the rule of international community in law, to justify the special treatment of the so- called prohibitive laws, is not so much to be accounted for, as Laurent (i. § 419) thinks, by supposing that Savigny was deficient in philosophic sense, or was still trammelled by the bonds of feudalism, as by the fact that this idea did not seem to him to be clear enough to found an entire system upon.i As a fact, all rules of law have an end and object which lies outside of the pure domain of law, although that object may not have been consciously present to the framers of the law, and although it may frequently be a mistake to assign certain perfectly definite objects to this or that rule of law. Eules of law always serve, or ought to serve, the welfare of individuals, i.e. the welfare of the preponderating majority of individuals, and thus the welfare of the whole commonwealth. In this sense, the motto on v. Ihering's work, " The end and object of law " {Der Zweck im Eechte) says truly, " The end of law is in truth that which creates it." No one, after the proof adduced by Ihering in his " Geist des Edmischen Eechts," can ever again believe that rules of law were brought into existence for the mere pleasure of drawing logical conclusions, and still less that they were so brought into existence for the mere pleasure of completing the steps of a precise dialectic. In truth, Savigny believed nothing of the kind, as is shown by the many expositions which his system of Eoman law contains, all pointing at the real objects of rules of law. The distinction mentioned above was only used by Savigny as a means of giving the class of prohibitive laws, in the presence of which international community of law is said to come to an end, a wider scope than truly belongs to it. Savigny, however, required this wider scope, to enable him to preserve many of his propositions which otherwise would have been too universally stated, and he required it specially on the ground that he was still too much occupied with Eomanistic conceptions to be able to do justice to the principles of German law, which require quite a different treatment in private international law. It is true that, owing to the far- reaching differences in the moral conceptions of different nations and States, there must be gaps in the international community of law. Our legal 1 In tliis sense, see Brnsa on Casanova, 2, p. 364. E 66 bar's international law. [§ 29 system can never hold out its hand to help in realising within its territory a legal relation, which from our point of view must be regarded as immoral. But this class of laws must not be further extended. Savigny, however, proposes to reckon among their number, first, all laws in which we can find a politico-economical object ; and, secondly, all cases in which our laws do not recognise at all some legal institution of another State. But almost every rule of law belongs to the former of these classes, and thus we should make an end of that community of law on which Savigny has so strongly insisted. An example will make that quite plain. Savigny himself has most energetically maintained that, because the law of inheritance is that of an universal succession to the whole estate, it must be regulated exclusively by the law of the domicile of the deceased, and cannot be subject at once to all the different laws that prevail in the territories through which the different items of the estate are scattered. But politico-economical objects may very well be protected by a diametri- cally opposite rule of succession.^ A different economical effect, for instance, is produced according as you prefer one child of the deceased, say the eldest son, to the inheritance, or allow it to go in equal shares among all his children. Quite different economical results are produced by the Eoman order of succession in more distant degrees, according to which the nearness of degree confers a preference, and by a simple ranking of children as in their parents' right, an arrangement which, it is said, may reduce the whole estate to atoms. Indeed, different economical results must be produced according as the term of majority is earlier or later, and the possibility of independent trading thus advanced or retarded ; and the same may be said of differences in the conditions of emancipation from a father's authority. In this way we should have to deal with prohibitive laws in questions of inheritance, capacity, and so on, and the application of personal laws would thus be excluded from these subjects ; and what would there be left for the legal community of States, or for the extra-territorial operation of personal statutes, to work upon ? But as far as the second case, the case of what may be called implicit prohibitive laws, is concerned, it may be that it is intended to take the title of the legal institution in question as the determining point. But to do so would obviously be wrong ; for the same title, e.g. property in a human being, might be used in two different States to denote legal institutions of such a thoroughly different legal character, that we could not consent to allow the operation of the foreign conditions of things to take place on our territory, as being contradictory to our views of morality. On the other hand, the same legal institution might have different titles in different States. In truth, then, we must always ha,ve appeal to the rules of law themselves ; it matters not whether we can or will speak of an identity in the legal insti- tutions in question or not. In fact, the whole doctrine of prohibitive or coercitive laws, as Savigny ' Gf. in tlii-" sense Ecnault, Journal, ii. p. :;33, § 29] MODERN ITALIAN SCHOOL. 6y has set it up, is a mere device by which he seeks to deliver himself from the uncomfortable and untenable consequences of what we must call — without doing any violence to the genius of his general conceptions — the very unsatisfactory and untenable deductions which we find in the details of his work.* The attempt, therefore, of the Italian school to found private inter- national law upon a division of the different rules of law, which does not advance us a step beyond Savigny's division into prohibitive and non- prohibitive laws, must prove a failure in spite of the difficulty of find- ing the logical flaws, which permeate the foundations of this doctrine, through the dazzling rhetorical polish that covers them. Fusinato has recently given the best defence of the more modern Italian school, and it can certainly be said that his judgment is more unbiassed than that of any of his countrymen, except Brusa. He is not blind to several of its weak points. In the first place — as Fusinato, too, recognises {M principio della scuola Italiana nel dir. priv. internaz) — nationality, as a fact in nature, and allegiance to a particular State are, not always nowadays identical conceptions. As the law of the person is to be held to be merely the legal expression of natural facts, e.p. of his maturity or his capacity to act, as the case may be, so the same assertion , may be made of nationality in the strictest sense, i.e. which rests upon descent, but it cannot be made of Nationalita in its juristic sense. For, on the one hand, any man may by naturalisation, which is an artificial means, come to belong to a State with which he has no connection by descent; and, on the other hand, the boundaries of States are in many cases not coincident with those of nationality, so that people belonging to various nationalities are united under the same State - authority and legislation. The Italian jurisprudence, however, applies all that it thinks it has proved of nationalities in the natural sense, nationalities resting on the basis of descent, to that nationality in the juristic sense, which is so widely different a thing, i.e. the fact of belonging to a particular State.* If it had proposed to take nationality in its natural sense, it would simply be proceeding upon a theory which would be contradictory of existing public law, and purely revolutionary. It does not desire to be guilty of this mistake : but, in avoiding it, it falls into the logical error of confusing its definitions. Strisower, then, was the first to meet Mancini on this point, Esperson and Laurent carried the opposition further, and Fusinato expounded it still further, in an impartial and valuable fashion. Their point is that in our 3 See, for instance, what Savigny has said on the law of pledge, p. 167, § 368, Guthrie, p. 192. See, on the other hand, Lehr. Journal, ix. p. 262, who very properly expounds the view that, if the institution of adoption does not exist in one country, an adoption which has taken place in another country is not on tliat account to be declared to be without any legal effect, as being opposed to public order. , , • ■ * Fiore DinttopuMico internazionaU, ii. § 878. Esperson (according to the quotation given, by Fusinato) and Fusinato (p. 28) have protested vigorously against the possibility of 68 BA^S INTERNATIONAL LAH'. [§ 29 time even those laws which most immediately concern the person, e.g. determine his personality, are not in any way dependent on the natural conditions of his development, especially of climate, but are rather the product of considerations of expediency of the most various kinds, or frequently of accidental majorities in the legislative assemblies. Thus Fusinato (p. 50) comes to the correct conclusion, that in the present time even the so-called personal statutes in many cases do not answer to the views of the individual who is under their dominion, as no doubt they did in the old times, when law was allowed to grow and develop quite naturally ; and that it may even be the case that in that relation the law of a foreign State may answer the views and the individuality of the citizen far better than his own. Thus he resolutely casts away from him the broken crutch which is pieced together out of the alleged natural identity of the person and the law that controls the person (the law of personal status), and deduces the necessity for the general recognition of the so-called personal status, in accordance with the law of the home of the person, from the necessities of a legal trade and commerce, which require that the status of the person must be uniform, and that it shall not transform itself every time that the person crosses the frontier of another State. But, in doing this, Fusinato has unwittingly abandoned the principles of the Italian school : he deduces his principle for the so-called personal statutes from the necessities of commerce, that is, from the nature of the subject. Fusinato, then (pp. 60 et seq.), expressly declares himself against the high-sounding principle of liberty (Laurent, ii. § 422), by which the law of contracts is said to be ruled. In the sketch of private international law which I prepared for Holtzendorff's Encyclopaedia, I declared myself in agreement with the principles which I laid down in the former edition of this book (§§ 66 and 69), and in agreement also with Strisower's excellent expositions, as against the conception adopted by the Italian school and also by Laurent, which pays no real heed in the law of obligations except to the individual will of the parties, which is to be sought out by the judge, or inferred from the circumstances of the particular case. In most cases in the law of obligations, which come up for discussion, the limits assigned by the law to the will of the parties are not in dispute, because there is no doubt that parties have kept themselves within them. But yet, as a matter of scientific principle, the first question is not. What did the parties de facto intend ? but. What was it within their power to intend in accordance with the law ? — i.e. to intend in the sense that the law will attach to their inten- tion the legal consequences of a lawful operation of the will, that is, the legal consequences of a compulsitor in one way or another (although not taking the ma(&7MZi;te of the Italian school in that natural meaning. Laurent, ii. p. 109, has certainly strayed in the same direction, when he brings the principle, which has lieretofore prevailed in Prussia, that personal status should not depend on allegiance but on domicile uto connection with the condition of the Poles in Prussia. As if the same principle did not nlso prevail over the greater part of Germany— except, for instance, in the kingdom of Saxony— and had prevailed there before the partition of Poland. § 30] LA tVS OF PUBLIC ORDER. 69 • calways precisely by way of granting decree in an action). The Italian school, and with it Laurent, help themselves over this difficulty by that appeal to the territoriality of the laws of public order, which lies always ready to their hand: we ghall come to the discussion of those laws immediately. But this simple juristic error is left standing, viz. that they confuse the so-called dispositive laws, with which we are most largely concerned in the law of obligations, with the intention of the individual parties to any case. "We can only say that, if the parties thought reasonably upon the matter, they would recognise as a general rule as right what the law so recognises, in default of a contrary declaration of intention. We may say, more shortly and more clearly : the so-called dispositive law is that which according to the opinion of the legislator, follows from the nature of the subject, and the result is that, on the one hand, very many consequences attach themselves to a legal transaction, of which the parties never dreamed — what would be the result, if a legal transaction had no other consequences than what the parties meant and wished ? ^ — and, on the other hand, that the regulation of the dispositive law for the individual case may possibly be highly unreasonable (inappropriate)." But if, on the other hand, it were the duty of the law to enquire what in each individual case suited the parties, such a process would mean the end of jurisprudence, and the beginning of simple caprice. It is, then, no trifling matter to confuse the intention of parties in the particular case, although it may not be expressed in words, but may be tacitly understood, with dispositive law. Laws of Public Order, for which the Principle of Territoriality is SAID TO give the Eule : Beocher's Definition of the Laws of Ordre Public International. I 30. But the new school finds its greatest difficulty in exactly specify- ing those laws which embody the territorial sovereign power, and limit the law which in other respects is recognised as the accessorium of the individual. Fusinato remarks most truly that this specification is all the more impor- tant for the Italian school, as it is in this matter dealing with one of its main principles, and not, as in other systems of private international law, e.(/. that of Savigny, with an exception to these principles. Fusinato, in the first place, recognises that Savigny's definition is faulty and unpractical (see above, p. 65). But he describes, with as much truth as frankness (p. 74), the expression, " laws which concern public order, ordre public," as ^ E.g. Non-lawyers, in concluding one of the commonest of transactions, a sale, never think of the question, Who shall bear the periculv/ni of the thing sold before the transaction is com- pleted ? and even if their attention is drawn to it. they answer simply that it does not often happen that things are damaged or destroyed, for instance, m transitu. In this case, there is no such thing present as an individual intention. But, according to Laurent, the freedom of the individual will is the only thing that can decide. See Strisower's excellent remarks, p. 32. 70 nAK's INTERNATIONAL LAW. [§ 30 highly inappropriate and ambiguous. ^ Pailes of law which belong to jus publicum include all such laws as do not give way to the will of the parties ( jus publimm quod privatorum pactis viutari nonpotest), include, for instance, all laws that are concerned with status. By a definition like this, we should arrive at the exclusion of all laws that touched on status, and of the majority of those that are concerned with the law of the family. Fusinato, again, is of opinion, and justly, that the definition of the class as consisting of all laws -which touch or concern morality or good manners, is quite as uncertain. All laws which deal with the relations of parents and children, with impediments to marriage, with contracts between spouses, and so on, belong to this class, and thus we come again to an exclusion of foreign rules of law so complete as pretty well to extinguish the vaunted principle of the ubiquity of the recognition of personal laws.^ Laurent finally speaks of social . law in contrast with private law. But this expression is no better than the other, although Laurent most solemnly guards himself against identifying the " Droit social " with the mere interests of society. With such a vague expression as the "interests of society" to use, you might assert as complete a supremacy for the law of the territory as you pleased, for it is always uncomfortable, and in some measure prejudicial, if judges and residents in any State have now and again to inform themselves as to foreign law. But, as Fusinato very truly says (p. 84), if one once gets beyond the region of purely positive law, no distinction can any longer be made between the interests and the laws of- society. He gives a complete bouquet of logical self-deceptions,^ by which Laurent, as it suits him, now assumes and now negatives a law of society. Thus Fusinato comes to almost the same conclusion as I reached in HoltzendorfFs " Encyclopaedia," that this whole principle is as yielding as wax and as elastic as india-rubber, and that you can by it prove everything and nothing.* Besides Fusinato, there is no lack of important authorities who have ^ In his opinion, in -which we concur, the phrase used by the Institute for international law in the so-called Oxford resolutions (of. Annuaire, 5, p. 57), -viz. "lois . . . en opposition avec le droit public ou avec I'ordre public, " is no better. ^ Fiore, § 168, in fact sets up the proposition that all la-ws which are intended to preserve morality and discipline in the family are applicable to strangers as -well as to natives. But in that case, what is left for the so-called personal statute ? (See, on the other hand, Fusinato, p. 76.) * One of the most remarkable examples is his frequent assumption (cf. Laurent, iii. pp. 208- 511) that if the domestic legislature has carried out a change in a matter of principle in any branch of the law, it has thereby recognised that there is no question of social law or ordre public in the matter. Thus if, as was the case in France in 1816, the State abolishes divorce (of course as an immoral institution) in a country where it had formerly existed, it thereby recognises that it is not dealing with public order — a thing that must be maintained inviolate. But the case, as a general rule, is exactly the reverse ; we make up our minds to a thorough change in the law because we consider the former state of things socially dangerous, and con- trary to the laws of society. * For instance, in vol. viii. p. 160, the territoriality of laws dealing with public instruction is assumed, the I'esult of which is that the State .can compel a foreigner, who is in the country on a mere passing visit, to send his children to a State school. Without further limitations, this is erroneous. See Fusinato, p. 85. § 30] LAIVS OF PUBLIC ORDER. 7T declared themselves at variance with the principle of ordre 'public as one of the main principles of the science.^ In the note « the reader will find a small additional selection of specimens of the Proteus-like nature of this prmciple of " ordre public," which is so accommodating and convenient, that is, in cases where, but for it, the juristic inference would certainly be open to doubt. In truth it cannot be otherwise ; for each and every law has some relation to the common weal : it is never the case that they exclusively consult the welfare of the individual. Fusinato (p. 86) finally decides to adopt this formula : he speaks of laws which obviously and mainly {evidentemcnte e principalmente) have as their object morality or political, social, or politico-economical interests. But it is not clear that this formula advances us a step. The laws, for instance, which deal with the equal or unequal division of an inheritance among the children of a deceased parent, or give him a more or less extensive power of dividing the estate which he leaves, have, as their obvious object, politico-economical interests as well. Indeed, it is quite possible that these interests stand in the very first rank, since it is quite conceivable that statutory regulations of this kind were passed for the very object, it may ^ Thus Asser, Revue, vii. p. 389, says, "Mien de phcs vague en effet que Vidie d'ordre public, de morale puMique, de droit public nan icrit." Clunet, Jour. vii. p. 187, " Cet ordre public si peu difini et d'ailleurs si difficile a difinir, cet intirU assez vague derniire lequel ou pourrait abriter le refus de reconnaitre V effet diuee loi itrangire queleo-nque. " Clunet goes on to explain that very often there is a prejudice, which declares some particular rule as to a legal relation to be the only one that is consistent with good morals. Duguit, Jour. xii. p. 371, " Nous rencontrous ainsi a eliaque pas cette notion vague et flottante de V ordre public et des bonnes mceurs. On est souvantporU ci Vexagirer." Vavasseur (Jour. ii. p. 9) asks, "Qu'est ce quel' ordre public? Chose assez variable. Vaniti national! " Cf. Folleville, Naturalisation, p. 472. Even Laurent, 3, No. 378, says, "Cest un amalgam de priiicipes qui se lieurteTii et se combattent. " And Weiss, p. 517, remarks, ' ' Za notion d'ordre public est par elle inline si obscure, si ncertaine." ^ E.g. a judgment of the French Court of Cassation of 5th Feb. 1873 (Jour. p. 300), postulates that certain rules as to the invalidity of testaments that have defects of form, belong to " Ordre Public," and must therefore unconditionally be applied to testaments even where they have been executed abroad. A judgment of the tribunal of Boulogne, of 20th July 1870 (Jour. i. p. 309), lays it down that a clause attached to a foreign contract, regarding the exclusion of responsibilty for lost luggage, is opposed to French " Ordre Public," and therefore, although the contract was concluded in another country, is absolutely to be disregarded. The Court of Martinique, in a judgment of 18th May 1878 (Jour. v. p. 507), counts among the provisions of " Ordre Public" the law of succession ab intestato, in so far as this is concerned with immoveables. A judgment of the tribunal of the Seine, of 26th July 1877, affirmed by the Cour de Paris on 7th March 1878 (Jour. v. p. 606), uses the conception of "Ordre Public" to negative the universal or extra-territorial operation of bank- ruptcy. Again, an appeal to this " Ordre Public" proves that a Frenchwoman in France must have the right of guardianship over her son who belongs to the Austrian Empire (Trib. Seine, 5th Ap. 188+ ; see on this Lehr. Rev. 16, p. 247) ; and again, the English rule of law by which there can be no legitimation of bastards, has been counted as a rule of " Ordre Public " in the exclusive sense (Alexander, Jour. vi. p. 524), as the immutability of the law of the property of married persons (Code Civ. 1394, 1395) has also been. Cf. Jour. xi. p. 42. Glasson (Jour. viii. p. 126) holds the law of bankruptcy to be a law of "Ordre Public,' and in a sense he is right. He goes so far as to describe it as a law of police and public security, but at the same time he desires to claim the character of unity for bankruptcies in iuternational questions. 72 bar's IMTERNATIOMAL LAW. [§ 30 be, of protecting the authority of the father, or of preventing too minute a subdivision of property as a general rule, and not merely to guard against the partition of particular estates. Again, no one, for instance, will doubt that the forms of acquiring property in land are exclusively deter- mined by the Ux rci sitcc, and even in cases which concern moveables this is now the prevailing opinion. Is there any better ground for speaking of moral or politico-economical interests in these cases than iu those which deal the regulation of succession ? Fusinato takes advantage of this general discussion to enter upon a criticism and an interpretation of the 12th Article of the Statute Book for Italian citizens, which is not very happily expressed. He very properly expresses the opinion that in formulating a principle for a statute book one must be very cautious. That which pleases him most (p. 89) is that which was recently enunciated by Fr. Mommsen (Archiv. f. d. Civile Praxis, 61, p. 202, § 19), viz. "Foreign law is not to be applied if its application is excluded by native law, either by the express letter of the same or by its end and object." ^ But in making an application of this formula, Fusinato passes over on to the ground of the German theory : it is the end and object of the law, i.e. the nature of the subject that is to determine.^ More satisfactory than Fusinato's attempt to define exactly the idea of those laws that stand in a hostile attitude to all foreign laws is Brocher's attempt in the same direction.^ He proposes to make a distinction between the law of Ordre Public Interne and that of Ordre Public Inter- national. It is only the latter that is to bear the exclusive character of which we have spoken, whereas the former is to give place to foreign law when it is at variance with it, and is to apply only to the subjects of its own State, but is to accompany these subjects even when they go abroad. It is true that Brocher has omitted to define with any exactness the criteria by which his distinction is to be tested. But it is undeniably correct, and, as numerous examples given by Brocher himself show, it leads inevitably ^^ ' This maxim, which may be sufficient for Mommsen, is not nearly adequate for the Italian theory. For Fusinato could never, for instance, deduce from it the supremacy of the lex rei sitae in the law of things. * Fusinato, at the close of the paper we have cited, points at a new theory which is diver- gent from that of the Italian school. He proposes to start with the principle of territorial sovereignty, but to admit the citizen of another State into his territory with the quality, with the legal outfit {" veste legale") with which he was furnished by his home State. According to this suggestion, the time has not yet come when it is possible to give a satisfactory deter- mination of the question. » Brocher, Nouv. Tr. No. 141 et seq. Olivi too, Eevue, xv, p. 215, says that there are provisions of " ordre public " which show a power of operating extra-territorially. " "Weiss, pp. 516 etseq., has attached himself to Brocher's view; but as Fiore (§ 28) had already done, he deprecates a more thorough characterisation of the law of Ordre Public Interna- tional, but much prefers to leave the decision to the discretion of the judge. But that is a decla- ration of the bankruptcy of the whole concern. It is quite permissible, in setting up a theory, to leave the details once in a way to the discretion of the judge, but tlie leading principle cannot be so treated. The formula enunciated by Brocher (Nouv. Tr. No. 143, p. 348) is too vague, viz. " II se peut que des necessitis internes, ou certains principes d'un ordre swpirieur, s'opposent a ce qu'on laisse cette loi itrangire pi-olmiger son autorile sur le terriloire." What is the meaning of I 31] HESV/^TS OP ITALIAN SCHOOL. 73 to a careful consideration of the end and object of the law — whetlier that object can as a general rule be attained in the case of foreigners ; whether it is prudent to strive to attain it in a question with foreigners ; whether legal transactions concluded abroad, or that have to be implemented there, fall under its sway or not ; and whether legal procedure as such shall be con- trolled by the end and object of the coercitive law ; whether, for instancie, every action arising out of some legal transaction concluded among foreigners in a foreign country must, in accordance with the spirit and aim of the law, be declined by our tribunal. In other words, Brocher's dis- tinction is simply an application of the theory of the German school, which rests on Wachter and Savigny, not very clearly expounded. Practical Achievements of the Italian School (Italian Statute Book). The most recent Italian, Belgian, and French Literature. (Criticism of Particular Works) — Periodicals — Associations for THE Promotion of International Law. § 81. Although we cannot affirm that the principles^ of the new Italian school are tenable and sufficient, we must, in agreement with Brocher, pay the greatest respect to it for the manifold practical achieve- ments which it has worked out. It is true that the foundation of the so-called personal statutes of nationality (allegiance) is to be found in the code civil, and partly too in the Austrian statute book ; and, again, the rule as to the equality of natives and foreigners before the law, in relations of private law, is by no means set up for the first time in the Italian statute book. But the former of these two propositions has been, in the hands of the Italian school, set upon a deeper foundation, and carried out more logically— perhaps, as we may hereafter discover, carried too far; and a nation must get much credit for its steady adherence to the latter proposi- tion, and for its championship of it, when we consider how long it suffered under the interference of foreigners in its political constitution. This credit is all the greater in respect that an offensive exaggeration of the idea of nationality, which in recent times has become customary in other quarters, preaches the doctrine of setting foreigners at a disadvantage, and excluding them from the country. Thus the Italian statute book, with its introductory provisions, which were conceived under Mancini's "prolonger sm effet sur un autre territoirc " ? He comes nearer a proper statement of the case when he says (p. 352), " S'agU-il . . . de droits isoles qu' on priiend exercer daiis un pays omls paraissent contraires d, I'ordre? on pent s'y opposer d'une maniireplus absolue.'' We need only put ' ' a^s isol6s " in place of ' ' droits isoUs," and it will be seen that we have to deal with the contrast between laws, which concern only the permanent subjects of a State, and those that are meant to bind the mbditi temporarii as well. 1 Against these, see also Padelletti, Revue, iii. p. 471, and Torres Campos., p. 306. J. he latter who sees the problem of private international law in the solution of the opposition between the personal and the territorial principles (cf. p. 302), comes very near to the principles of the Italian school, in spite of the controversy he has earned on against it elsewhere. 74 bar's international law. [§ '^\ auspices, generously and intelligently opens its country to foreigners, and even to foreign laws, without dejiarting in the least from the requisite appreciation of its own sovereignty. And so the rich and valuable litera- ture of private international law which we know has developed itself in Italy, Although of course it is not all equally valuable ; ^ we have to thank it for excellent general expositions of our subject, and at the same time for subtle and laborious investigations of particular points, all filled with the endeavour to reach impartially whatever is good, from whatever quarter it may present itself, all also free of any narrow spirit of nationality, and concerned to give the most impartial advancement to the general intercourse of nations, and to secure it on the basis of as wide a recognition of foreign law as possible. Finally, the kingdom of Italy has not only already concluded a series of treaties, which have furthered international inter- course, but it has taken special pains to put forward for negotiation more general treaties, with the same object. We may notice as general expositions of our subjects, apart on the one side from the works we have already mentioned, which are rather devoted to a discussion of principleSj^* and on the other from the various discussions on particular points,* which we shall mention hereafter, the following, viz : — (1.) Pasquale Fiore,^ Diritto Internazioiiale privato, 2nd ed. Pirenze, 1874 (643 pp. small octavo), a copious work, which makes a thorough use of foreign literature, and commends itself by its thoughtful judgments, and also by its practical views. These latter characteristics are also found in a clearly and concisely conceived work by (2.) Giovanni Lomonaco, Trattato di diritto internazionale privato, 1 vol. large octavo, 232 pages. The most comprehensive work ^ which we possess on international law, the work of the famous Belgian law professor Laurent,^ in eight volumes, adheres to the principles of the Italian school, and that in a most animated style. The learned author makes an extraordinarily copious use of the literature of the subject, especially that of France and of the Nether- lands, reviews the historical foundations of our subject, and undertakes the task of tracing to its foundation every single argument that is adduced for any particular view. This talented work is full of instruction in many 2 It is natural that when, as has heen the case in Italy with international law, a school of law begins to exercise quite a special power of attraction, a number of immature or borrowed works enlarge the tale of its literature, without in truth enriching it. But such works have their use ; they bear witness at least to the living interest of the nation, or at least of the cul- tured in the subjects which are so often treated. 5 We have also an enquiry by Esperson into the international law of exchange ; and a work by Fusinato, on the execution of foreign judgments. * Here, for instance, we may be reminded of the works of Carle, Norsa, Vidari, de Kossi, and others. ' Fiore is also the author of a more comprehensive work on the operation of foreign judgments, to the first part of which we shall often have occasion to refer again. ^ At the same time, this work does not contain the law of process. ' See Brocher's criticism on him in the Revue, xiii. p. 531 et seq. § 31] MODERN BELGIAN AND FRENCH WORKS. 75 directions ; it surprises one by its exposition of new points of view and of excellent arguments. It is in truth a marvellous work, and every one who proposes nowadays to take lip private international law in a comprehensive way must have respect for it, and esteem it sincerely. But, at the same time, the work is not without its dangers. The author, who in spite of his reading is often entangled in the bonds of the French statute book, some- times finds it difficult to be fair to other men's arguments « and points of view, and to be just in his historical judgment," and his criticisms are not free from prejudice and from political, national, and ecclesiastical anti- pathies. He is fond of compressing his arguments ^^ into certain compre- hensive expressions,^^ and then of working with these in a broad and an unexpected fashion, as e.g. with the words Feudalism (feodalit^) and Realism. The abundant store of clever and startling thoughts, which, however, are frequently not properly sifted, and look as if they had suddenly occurred to him, give the learned author not infrequent opportunities of confusing the problems which he states, and making their solution more doubtful than it really is,i^ or of struggling after absolutely new and surprising results, in place of the old and tried solutions. Then, again, the author thrusts in long political, social and ecclesiastical discussions, which can hardly be said to belong to the subject, and seems likely to lose himself in repetitions. If these discussions had been omitted, and the book taken a shorter and more concise form, the reading of it would have been less troublesome, and the work would have gained in value.^^ Durand's shorter work also follows the principles of the Italian school, but it avoids Laurent's exaggerations and condensed phraseology, and is further remarkable for the shortness and pregnancy of expression, as well as for its clearness of thought, and for a certain practical good sense, while Bard's " work does not propose to enter on a discussion of fundamental principles, but, taking its stand on certain recognised general rules, it supplies some excellent investigations in points of detail, which are sharply and clearly formulated. Weiss' work is a prominent treatise, resting again upon the principles of the Italian school, which is modestly described by its author as " Traite " Cf. e.g. his peculiar arguments, i. § 417, iv. § 215, vi. § 221. ' The estimate of the historical development of private international law, and the criticism of the English and North American jurisprudence, is a, perverted one On the other hand. Feudalism is described (i. p. 187) as the first source of international law. ^^ Cf. e.g. what ho says on the rule, " locus regit actum,'' and the forms of the marriage ceremony. ^^ Thus, for instance, the divergence of opinions on a very diiBcult and complicated case (the case of Bauffremont) is used as an argument (i. § 3) to show that there is no science of international law at all. '^ For example, the ceremony of marriage is to be absolutely considered, contrary to its history, as an acte solennel, that is to say, an act with public notification. '' On Laurent's writings cf. the obituary notice by Nys, in the Annuaire de Vlnstitut. 9th year, pp. 42-61. " Not to be confused with Barde ; TJieorie traditionelle des Statuts ouprincipes du statut reel et du statut personnel d'apres le droit civil frartAxm. Cf. on this subject Asser-Eivier, p. 21. ^() SAR^S WTERNATIONAL LAW. [§ 31 elenwntaire de droit international" in spite of its rich contents, which are to a considerable extent given over to a comparison of different systems of law. The special features of this work are a clear and concise conception of ideas, a thorough application of literature, and especially that of the French judicatures, practical good sense, and a healthy regard for the necessities of commerce. The most modern French literature ^^ is also very rich in detailed discussions ^^ on the problems of our subject. That most excellently edited Journal de droit International frivi}"^ which was founded in 1874, by Clunet, and is so rich in materials, has contributed in a most marked degree to this growth of literature. It contains original articles, literary notices, and reports of judgments from the courts of all civilised countries, all very practically arranged. It is impartial and international in the best sense. These latter characteristics one may justly claim to the same degree for the Bevue de droit International et de legislation comparee, which has appeared since 1869, founded by Asser, Westlake, and Eolin- Jaquemyns, and now edited by them along with Eivier. It must be admitted that it is not so rich in original papers and in reports of decided cases as the Journal de droit International prive, because it serves at the same time for the law of nations and for public law generally ; on the other hand, the literary criticisms and the notices which it supplies are very complete. There are also two scientific societies, which were both founded in 1873 at Brussels, which are occupied with private international law, viz. the Association pour la r&forme et la codification du droit des gens (open to all), which is in the custom of publishing annually in London a " Report of the Annual Conference ; " and the Institut de droit international, which consists only of a limited number of scientific brethren from different countries. Up to this time fApril 1888j, besides its original meeting at Ghent, held eleven meetings in different countries of Europe (Belgium, the Netherlands, Switzerland, Italy and the German Empire), and has published its works, deliberations, and resolutions in the Annuaire de I' Institut de droit International}^ i^ '^ Positivism is represented by the work of the Belgian jurist Haus, which in many respects is meritorious. He proposes to found private international law on the Droit des Gens, that is, on its traditions, and, in particular, on the results of the statute theory. However, we may often doubt whether in the conflict of opinions a trustworthy tradition can be found for us to accept. Haus often proceeds with some caprice in his use of the "Droit des Gens," and the operation of Savigny 's theory of the " seat of the legal relation " may be often noted in his work. ^^ Here Cogordan, Folleville, L. Renault, Lyon-Caen, Constant, and Moreau may be prin- cipally mentioned. But L. Renault should not be described as an adherent of the new school • he throws off the statute theory, and proposes to apply in every case " la loi eompUente d'api-is la nature des choses (see especially Jour. ii. pp. 334, 335). '' Clunet's short illustrative, and critical remarks on the reports of decided cases are worthy of the best attention. ^' Besides, the Bemce is the organ of the Institute. ^' Of. the statistical information in the Annuaire, vii. pp. 290 et seq. and ix. pp. 393 et seq. §32] PRINCIPLES OF PRIVATE INTERNATIONAL LAW. TJ The comparative science of law or jurisprudence is, of course, an important auxiliary study to that of private international law. The BidUtin de le SocieU de legislation comparie (Paris 1872, 16 vols, up to this date), and the Annuaire de legislation compar6e public par la SocieM de legislation compar4e (Paris 1872, et seq.), are the most important works for modern times. The periodical edited by Bernhoft, Oohn, and Kohler, which appears in Germany, treating of comparative jurisprudence (1879 et seq.), has, up to this time, paid less attention to the law of modern times. e. principles of the projected inquiry. Outline of Private International Law proceeding on these Principles. § 32. It is now possible and practical to sketch more .sharply the principles by which the enquiry that lies before us will be conducted. In the first place, we are, as we have already explained, of the opinion that to pay regard to foreign rules of law to a certain extent is the legal duty of every State, and is not a matter of mere caprice and goodwill — the duty of every State, that is, which wishes to maintain the commercial relations of civilised peoples. If now and again the word comitas is still used for the considerations on which the application of foreign rules of law ought to depend, that is rather a difference of expression than of real meaning. Private international law, then, as it is to be inferred from what has been already said, is not a product merely of the sovereign legal system of each particular State, but is a result of the nature of the subject itself, claiming recognition as in a sense necessary, a result of the requirements of commerce, and of the reciprocal recognition of their le^al systems by the different States. No doubt each individual State may to a certain extent permit itself to deviate from the rules of international law, and these deviations, however perverse they may be, are for the time positive law for that State, which can be carried out so far as the sphere of its power in fact extends.^ But capricious deviations of this kind generally bring great disadvantages in their train, even for the State which allows itself to practise them. They are not truly law, any more than the deviations from the law of nations in its technical sense, i.e. public international law, which a State may allow itself to practise, are law, although it may see that these deviations are carried out, so far as its own power extends, by its officials and official machinery against private persons. The material principle of private international law, as we have figured it, requires no further sanction from special statutes or international 1 The third proposition of Torres Campos' conclusions (p. 308) is intended to express this, viz.; "Every State has its own idea of law, and must have it, and can only apply force to protect what it so understands to be, the law," 78 bar's international law. [§ 32 treaties, because the nature of the subject, by its inherent reasonableness as a principle, will obtain recognition and prevail by its own strength. But that principle may no doubt be modified in many points by the law of custom and special treaties. The principle is simply the nature of the subject, in the sense in which we are assisted to recognise it by means of traditions and propositions of customary laws, which serve as landmarks and finger-posts. It is possible that without such assistance we should be left too much to grope about among uncertainties. But, fortunately, they are not altogether wanting; e.g. there is the proposition that foreigners, as a general rule, have full legal capacity in the relations of private law ; there is the rule locus regit actum ; and specially there is the proposition that legal process is not meant to create new rights or to destroy existing rights, but merely to declare rights which already exist : with the aid of this proposition, we ensure protection of vested rights. But in our enquiry we must not start from the idea of the "legal relation." To do so would be to proceed in a circle. For in order to know whether certain facts present or bring into existence a legal relation, we must measure them by some particular statute or rule of law as the regulative authority on the subject ; that is to say, we must know before- hand the rule of law or statute by which they are to be controlled, and that is precisely the thing which for the time we do not know. Accordingly, Savigny's much used proposition as to the seat of the legal relation, is in itself as wrong and as misleading as the theory of vested rights which he himself attacks. We must rather start from pure facts or from le^al relations, the existence of which does not depend on their being recognised by private international law, relations which are supplied to us by the law of nations in its narrower sense of public law. Now, if we start from that point — and it is a proposition of the law of nations that every State has a certain territory — the facts we require can only be, first, the actual place where a person is found ; and, second, the actual place where a thing is found in the territory : to these we add the legal relation of the law o^f nations, that persons stand to States not merely in that relation which is produced by their actual local situation, but also in a relation of permanent loyalty on their side, and a certain permanent protective care on the side of the State to which they belong : a relation which is not dissolved by a tem- porary or merely passing stay in another State. In other words, the local situation of a person or a thing, and the citizenship or domicile ^ of a person (which of these two relations is to be decisive, we leave undetermined at present), are the only criteria on which the determination of the questions with which we are here concerned can be founded, if we wish to avoid falling into a circulus vitiosus. The idea of an " act " ^ is not at this point 2 The domicUe of a person is in the same way a condition of the possibility of a private international law, and not a consequence of it. 3 Torres Campos (p. 300) makes the solution of the question more difficult for himself from the fact that he takes the idea of the " act," as well as that of the " person " and of the " thing," as a starting-point. § 32] PRINCIPLES OF PRIVATE INTERNATIONAL LAW. 79 within our reach, and for this reason. We cannot determine a priori whether this or that sum of a man's movements — capable as it is of infinite sub-division, but also capable of being at pleasure considered as an unity, along with all its antecedent conditions and its consequences, which again in the same way may be united or divided at pleasure— is in a juristic sense an unity, or an act. We can only learn this by trying it by the test of some particular positive law or statute, and that is precisely the thing of which we are in search.* There is only one act ^ of which we make an exception, and it, by its very nature, is assigned to the territory of some particular State : that is procedure: procedure is truly an act of the court, and every court by public law belongs to a particular State and its sphere of law. The local situation and the citizenship (or domicile) of persons, the place of things and the place of legal procedure, or of the particular lawsuit, as the case may be, are then the facts on which alone the determination of the competency of the different legal systems or legal authorities can be made to depend. The fact that, as a general rule, a person or a thing, by changing his or its local situation, comes under the dominion of a different territorial system of law and legal authorities, by no means justifies us in inferring that he or it is subjected at once to all those various rules of law which are in force in this territory. That inference is no more legitimate than to suppose that it follows, from the ideal relation of subjection which is based upon the nature of a legal process, that the material law which prevails at the seat of the court must necessarily control the legal relation which is in debate before it. On the contrary, what we must say is this : the local situation has the effect of placing persons and things within the grasp of all those rules' of law, the object of which is to seize upon all persons and things that by any means whatever are found on their territory. There are certain rules of law which, no doubt, attach them- selves to all persons and things at once, the moment they enter upon their territory, as, for instance, the rules of law which concern the immediate protection of persons and things against crime, and those which are concerned with the maintenance of the state of possession in things, and so on. But, in the case of other rules of law, we should give them an absurd appHeation if we were to assert they are to be brought into force * If, as we proceed, we speak for shortness' sake of the law of the place where the act is done, that means the law of the place in which a person was when he spoke the words that are alleged to be decisive, or wrote them, and so on. 5 Whereas the local situation of the person or the thing exemplifies a real relation of suhjeotion to a, particular territorial system of law, we might say that a, process is merely an ideal relation for the purpose of enquiry. As a fact, every court which aflSrms its own competency, and does not in any measure decline the decision of the case, necessarily proceeds upon the view, that the persons who appear as parties, or the things with which it is to deal, are, in so far as this legal issue is concerned, under its power. This view may be incorrect, if the court has no real power of compulsitor because the persons an 1 things are in another xonntry, and that other country will not lend its compulsory powers for the execution of the judgment. 8o bar's international law. [§ 32 simply because the persons or things, as the case may be, have come into the territory. In such cases we must rather assume that the legal relations which were established by their former local situation, and the system of law that prevailed there, are to continue in spite of the change of locality. This is the true meaning of the theory of vested rights in private inter- national law, although, no doubt, it is a narrow meaning. We cannot exalt this theory to the rank of a fundamental principle, and we cannot go so far as to say that a legal relation is to be recognised and upheld every- where, even if we assume that its origin falls to be adjudicated upon by some particular system of law which approves of it. The contrary is proved by the familiar instance of the refusal of countries, in which slavery does not prevail, to recognise the relation of master and slave which has originated in another country. But this much is true : if we desire a regular intercourse with foreign countries, if we are minded to recognise the legal system of these countries within their own territory, we are barred from saying that, because a thing or a person which formerly was present in a foreign country, fell under or entered into some particular legal relation in accordance with the system of law which prevailed there, and because the same result would not have happened, or happened in the same way, in our own country, therefore we refuse to recognise that legal relation.^ We must, then, when we have to deal with some question of private international law, that is to say, with a case in which there may come to be a question as to the application of a foreign law, or of the laws of different territories, put the points more exactly, thus : First, what are the facts which can possibly be brought into consideration for the decision of the legal point ; and, second, in what territory the things or persons, as the case may be, with which the legal relation is concerned, were at those points of time at which each of these facts came into operation, or in the case of persons, to what territory they belonged at those points of time, either by virtue of their allegiance or of their domicile, as the case may be ? Thus it may no doubt happen that the legal relation which is brought up for decision is, in truth, the product of a whole series of influences each subject to a different territorial system of law.^ The chief difficulty in determining questions that belong to private international law lies in the separation of these successive influences one from the other and in the solution at the same time of all the difiiculties that have been created by the different systems of law, the last of which is presented by the " In so far as it is possible for the true theory as such to be laid down in a statute book this has been done in the revised statute book for Ziirioh of 1887, § 1. "The private law of Zurich binds, primarily and solely, persons, natives or foreigners, who live in the Canton of Zurich or are temporarily present there, or seek a legal remedy there ; and it controls all private relations which come into operation in the country, except in so far as the peculiar nature of the special legal relation requires either the application of a foreign law upon this territory, or the extension of the law of this territory to a foreign country." The first part of this paragraph would be better deleted. ' In this connection, see the excellent remarks of Torres Campos, p. 301. 32] PRINCIPLES OF PRIVATE INTERNATIONAL LAW. 8 1 institution of the process,^ or it may be the execution of the decree." For instance, a right of pledge is validly constituted over a thing which happens to be in territory A, according to the law of A; the thing is subsequently brought into the territory of State B, and here the owner, who lives in this State, be- comes bankrupt; the right of pledge itself is to be tested by the laws of State A, while the rights of preference in the bankruptcy are to be tested by the laws of State B. For, as regards these rights of preference, we have to deal with the effects which subsequent legal circumstances, developed after the thing came into State B, have had upon the right of pledge already constituted. And in every case that legal system, with all its effects, to which the thing by its actual local situation is subject in the later stages, or in the last, as the case may be, must be allowed the precedence. So that, in the ultimate resort — and on this point all are agreed — the result which the law of the tribunal really desires is that which must prevail.^" The reason of this is that, in every practical decision, the question is not about a right which once on a time existed, or at some future time may come to exist by some change of locality, but about a right which is or is not to be found in existence at the moment ; and so the law, under whose jurisdiction the question last falls, will always have a preponderating voice in its decision.^^ But, of course, it may be that the last change of locality, or many of the changes, are unimportant and inconsiderable because it cannot possibly be supposed that any circumstances of legal importance occurred subsequently to these changes. For instance, some one has acquired a thing in A, and then has simply carried it about with him on a journey, in the course of which there has been no change of possession, and has brought it back again with him to A or to X, where it is proposed to claim it from him. In this case the law of A or of X may be taken into account, but not the law of any one of the intermediate places. From all this it will be seen how inappropriate and confusing the figure, which Savigny uses, of the discovery of the seat of a legal relation, is. In very many ' A process does not, it is true, require the presence of the person or thing in the territory of the court ; but this exception simply rests upon the fact that by modern law the principle of the so-called direct representation is recognised. This is, in truth, a fiction, of which the older Eoman law knew nothing, since it treated the procurator as the party, and only in a roundabout way brought the results of the process back again to the true original parties. 9 Thus also Westlake, very truly, says, § 178 : What alone private international law gives or can give is a rule " depending on the total result obtained by appreciating each fact in the case according to the law appropriate to it." Westlake, in opposition to the prevailing doctrine of English jurisprudence, makes this very proper application of what he has said, that the question as to the legitimacy of a child is not to be determined by the lex rei sitce, because in the process the final question is as to an inheritance which is to be settled according to th.it law, but that even for this purpose the antecedent question of the legitimacy must be determined according to the personal statute of the child or of the father, as the case may be. '» See above, § 24. The law of the court that is to carry out the sentence may, however, to a certain degree take precedence of the law of the court that tries the case. ^ There is some agreement here with the conclusions of Torres Campos (p. 309), which in my opinion are not quite distinct. He lays stress upon the physical force of the one State or the other ; but then speaks of a greater and a less physical force affecting the legal relation in such a way that the former must prevail. F 82 bar's international law. [§ 32 cases, as we see, the legal relation has not an exclusive connection with one territorial law only, but with many.^^ and it is one of the greatest mistakes which can be committed, in solving the problems of private inter- national law, to refer the whole series of questions connected with any concrete legal problem to the law of the territory that governs the last of the series, for no better reason than that it is the last of the series that is so governed.i^ The following considerations may serve to clear up the great problem of private international law. In ancient times the legal authorities of the different States maintained a strictly exclusive attitude one to another, something like different spheres, which demolish everybody that passes into them from another sphere, or resolve it into its constituent atoms. As a matter of principle, they refused to recognise the legal stamp which a person or thing had acquired in another State. This is the view which lies at the bottom of the deliverances of the Eoman law as to persons or things that come into the power of "hostes." In modern times all this is changed. Men desire an orderly and peaceable intercourse with each other, and on that account, as a matter of principle, they recognise the legal stamp which a foreign country has impressed on a person or thing, while that person by his allegiance or his domicile, as the case may be, and the thing by its local situation, belonged to that foreign country. But this recognition, as matter of principle, of the legal stamp or character which has been impressed by the foreign law, does not of course prevent the person or thing in question from being subjected to the influence of the legal system of our country, if the conditions necessary for that subjection are present. In other words, what we have to ascertain is the effect to be given to each of the legal systems concerned, which shall correspond to the nature of the subject under consideration, in conformity with the local situation, or the domicile of the person in question (or it may be in conformity with his allegiance or the law of the tribunal that is trying the case).i* This principle of decision according to '^ Consider, too, this example, viz.: A, wlio, like his son, is a citizen of State X, finds him- self with his son in the territory of State Y ; the law of State X wOl decide whether A still has paternal authority over his son, but the law of State Y will decide whether in virtue of that authority he can throw his son into gaol. ^2 This mistake is committed by the older writers, and partly at the present day by the jurisprudence of England and North America, in cases where the final problem concerns a real right in an immoveable article. In this connection it is frequently committed by Haus, cf. e.g. § 146 ad fin. and § 147. " See, too, the just observation in a judgment of the Supreme Court of Austria, of 7th March 1883 (Collection of civil judgments, edited by Unger, Walther, and Pfaff, vol. xxi. No. 9338, p. 123) : " Legal transactions and contracts of all kinds, which are concluded by foreigners in a foreign country, are not, by that circumstance alone, withdrawn from the jurisdiction of our courts, but may in any particular case be subject to the determination of Austrian courts, if it is proposed that they shall exercise in Austria some legal effect, or if a decision seems to be demanded by considerations of public law." In accordance with this, the State can certainly, by virtue of its sovereign power, stamp on every person or thing found in its territory a legal character, and, strictly speaking, it does this invariably in certain relations although these relations do not always come into account. (For instance, the general duties and rights of a person to his fellows, and to the commonwealth, change at once so soon as he § 32] PRmClPLES OF PKIVATE INTEKNATIONAL LAW. 83 the nature of the subject is not any capricious discovery, and is no mere theory ; it is really recognised law, although perhaps in many cases it may be difficult to ascertain with certainty. Gould it possibly be said that a decision contrary to the nature of the subject — an exaggerated application of the native law, it may be, of the tribunal that has cognizance of the case, which should not correspond to the nature of the subject — was law, or better law than what we have proponed as the law ? "We can conceive how much mischief might be done by a system of law which should undertake to settle questions of international law by special enactments, not in accordance with the nature of the subjects with which it had to deal. We can also see how cautiously international treaties should be concluded, these treaties from which so many persons, accustomed exclusively to lean upon the crutch of positive enactments, expect that the true progress of private international law is to come. As soon as we pass beyond a few general, and therefore vague propositions, and out of the region of a few subjects, which lend themselves more easily to an arbitrary regulation {e.g. copyright, patent right, regulations as to citizenship, etc.), we discover how much harm may be brought about by an attempt to fix details upon a theory which is not clearly conceived, to say nothing of the case where the theory is entirely wrong. This will lead invariably to determinations contrary to the nature of the subject, that is to say, contrary to the logic of legal institutes, and directly opposed to the requirements of commerce. In truth, very few legal topics stand so little in need of detailed regulation by enactment as private international law. Those countries, in which it is committed in substance to the care of scientific jurisprudence and practice, have little cause to envy such countries as France, where jurisprudence and the practice of the courts have to maintain a fight in the interests of commerce, and even of the French legal system, against legislative enactments which in part are faulty. The Italian legislature, with a wise self-restraint, in many points rather hints at the principles than completely sketches them. Comparison of these Principles with those of the New Italian School. § 33. Our conception of private international law, we must admit, stands in opposition to some extent to that of the modern Italian school. There is perhaps an inclination to object that a theory, which proposes to treat persons and things according to the same principles, is not a worthy or a correct conception. But let it be observed that, even according to the theory maintained by us, this well-marked distinction exists, that in the case of the person it is not merely the actual local situation, but the sets foot on another territory.) We may, in truth, speak of a second or counter stamping. Hamaker in his treatise, ^^Da^ InUrmationaU PrivatrccM, seine Ursachen und Ziele" (p. 25), overlooks this, 84 bar's international law. [§ 33 allegiance (or domicile, as the case may be), which is already in existence, that has been described as possibly the decisive element in very many aspects. Again, it may well be that the legal systems which have to be taken into account, will with one voice describe the place of the thing or things with which we happen to be dealing as irrelevant for certain legal consequences, so that the things are, for instance, regarded as an annexum of the person, who up to a particular day was undoubtedly in right of them. Or it may be that, without regard to the place of the thing, they with one voice will pronounce the will of a particular person to be decisive as to the fate of the thing. In this way the preponderating force of the so-called personal statute will display itself. But truly this is not an inference from any abstract principle of international law, which cannot be proved to be true : it is a deduction from the meaning and the spirit of the particular territorial systems of law which are concerned. If this spirit changes, the practical results of private international law must change with it. If, for instance, the Italian statute boolc should again give up the principle of an universal succession in the law of inheritance, and should betake itself again to the principle of the older law of succession known to the German law, with a distinction between immoveable and moveable property, the new Italian doctrine wo\ild certainly not be able to prevent the lex rei sitce from asserting its supremacy in the determination of questions of succession in immoveable property in Italian practice. The principle of private international law must be so conceived that, assuming the recognition of foreign legal systems in their own domain as a funda- mental proposition, and assuming also the recognition of the legal capacity of foreigners, it shall be able to explain different historical developments, and even the possibility of contemporaneous divergencies in develop- ment, where the domestic legislation of a State differs widely from the usual rule, as, for instance, in the case of the law of England and of North America. But the Italian school fails in this, that it cuts the principle of international law too fine for the present state of those countries where the theory of the Eoman law is still supreme, and too fine sometimes even for the theory of the Code Oivil,^^ of which the Italian statute book presents a new edition, although it has been in many ways undoubtedly improved or modified. But in reality the division of the whole law into personal statutes and laws of public order is in many cases, where particular cases are investigated, a mere formula or fashion. The authors of the new school, who give us the more thorough discussions of the various subjects, make the true object of their investigation the meaning and the spirit of the particular laws which they have to consider. They ask themselves, for instance what would be the consequences, if the adjudicating court should or should not apply its own domestic law to some legal act done in another country — a marriage, for instance, or a divorce — that is to say, they decide '= E.g. in asserting tlie absolute necessity of an acte sohnnel for a marriage, §34] OUTLINE OF A THEORY. %(, according to the " nature of the subject." We find, then, in the most careful and thorough authors, that their results do not differ from those that will be attained by following our method. German jurisprudence is not infrequently led astray by Savigny's erroneous illustration of the " seat of the legal relation," by means of which, as has been said, we can prove everything and nothing.ie The new school of Italy, France, and Belgium, however, sometimes is exposed to the temptation of preferring an appeal to that formula which they have set up to a thorough and calm consideration of the whole subject. This is particularly the case with Laurent. Outline of a Theory of Private International Law. § 34. The following sketch of legal principles in their international aspects will serve to show clearly what are the problems of private inter- national law and the method of solving these, which we propose to follow. 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 outline cannot be directly employed to determine particular legal problems. This remark suggests a further observation, that in strict- ness 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. Our task must therefore be considered to have been exhausted if, in the course of the enquiry, 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 incapacity of certain persons to act,^ '^ Could we not, for instance, even go so far as to say that, where a suit is depending before a particular court, the seat of the legal relation is in that court ? Against this theory of "the seat of legal relations," see particularly Mancini, Journal, i. p. 287. ^ From this must be distinguished the laws that concern capacity to have legal rights ; on this point we accept the generally recognised rule — viz. that foreigners and natives, in relations of private law, have the same capacity to have legal rights. See below. 86 JBA/i'S INTERNATIONAL LAW. [§ iM have for their object merely to provide a permanent protection for these persons. In conformity, therefore, with the nature, of this subject and the object of the laws that are concerned with it, 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 country. 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 will 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. In the law of obligations, in so far as it deals with legal transactions, those rules of law, which will not give way to the desire of the parties to dispense with them, are to be distinguished from those which do not come upon the scene except when parties have failed to declare their desire to be otherwise, a thing which does not always require to be expressly done. The rules of law of the former kind have, as a general rule, the protection of the debtor as their object : thus as a rule we must assume that their object is. that they shall be applied to obligations, which have been undertaken by natives to foreigners even when in a foreign country. But this is only a general rule, which necessarily suffers very many exceptions. For it may be , that we should attribute a less absolute character to this measure of protection. We may have to say : other facts and circumstances exist in the foreign country, as to which the foreign system of law is the best judge, and an appeal to the restraining domestic law of our subject, as against an obligation which he has assumed in a foreign country, may possibly be contrary to the bona fides of the rules of commerce. In this way a judge even of our own country may sometimes come to the conclusion that an enactment of his own law, which so confines the desire of the parties, is not applicable to tlie case of a legal transaction on which a citizen has entered in a foreign country ; while it is quite reasonable to suppose that a foreign judge will come all the sooner to that conclusion, if there is no such restrictive provision in his own law. On the other hand, the character of a provision which so restrains the wills of ^ These logical conclusions are modified by a general consuetudinary law for the States of Europe, as we shall afterwards have to remark. § 34] OUTLINE OF A THEORY. 87 the parties may be so absolute that we are forced to declare that this provision has application to all obligations, wherever and between whom- soever they may be entered on, if any attempt is made to enforce them before our courts. As far as legal rules of the second kind are concerned, the parties may as a matter of bargain subject themselves to any territorial law they choose. If all such declaration is awanting — a declaration which may, no doiibt, be inferred from the actings of parties — then again the nature of the subject must decide. That is to say, we must enquire what law the parties would probably have had in view, if they had considered the matter reasonably. Obligations ex delictis arise from offences against public order in the proper sense ; this public order must rule in its own territory, without respect to any other considerations. These obligations, therefore, as a matter of principle, are subject to the place where the act was done. The aim which the law of the family has before it can only be attained if the subjects of our State, even when temporarily absent abroad, remain under its authority ; and conversely, it would never be attained if it were to be applied to persons that do not permanently belong to our State, and are only temporarily resident in it. The law of the home, therefore, claims authority in such questions. According to the axioms of Eoman law, the heir represents the person of his predecessor in all legal questions relating to his property. This entire personality, with all 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, or in the State to which he permanently belongs. 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 or the home of the predecessor. On the contrary, by the conception of English law, the law of succession, so far as immove- ables are concerned, is merely a special variety of the law of acquiring things ; and therefore by English law the lex rei sitm rules. The law of process prescribes the conditions and the forms under which the sovereign power of the State shall set itself in motion to ascertain and to vindicate private rights. And from this the converse follows, that the State will not set itself in motion under any other conditions or forms, and therefore, in questions of process, the law of the place where the tribunal is, is to be applied. appendix i. Laws of Independent States, and Particular Systems of Law WITHIN THE Boundaries of one State. 8 35 We have already noticed that private international law has also to concern itself with the fact of different territorial legislatures, and different systems of law, being recognised within the boundaries of one 88 bar's INTERNATIOMAL LAW. [§ 85 State. The question may be asked whether any problem requires a diifereut answer in such a case from the answer it will get in a case where the laws of different independent States are the subject for consideration. This question 1 is answered by the older authors almost without exception in the negative. Sometimes this is by implication, in respect that they take the examples which they select for use now from different particular systems of law in one and the same State, and again from the different laws of separate States, and decide both on the same principles.^ Sometimes they answer the question expressly;^ and in modern times the overwhelming majority of authors express themselves to the same effect.* Feuerbach,^ Puchta,^ Flitter,' Mailher de Chassat,^ and especially Wachter,^ demand an entirely different treatment for the particular laws of the same State, and the laws of different States. No reasons are for the most part given by the supporters of either the one opinion or the other. The supporters of the latter opinion do not, as a general rule, say wherein the difference consists ; only Puchta, Feuerbach, and Wachter express themselves somewhat more distinctly. Different particular systems of law may arise within one and the same State in three different ways : — First, A territory which formerly was independent, or belonged to another State, is incorporated with the State in question. Second, The State authority concedes autor.omy to a certain extent to a particular district. Third, The one State authority passes a law applicable only to a particular division of the country. In the case of the incorporation of an entire State or of a province, in tlie first place, the supreme administrative and legislative authority passes to the State which acquires it. The functions of those factors which have up to this time made up the supreme power of the incorporated State are extinguished with it, and, as a matter of public law, from this time onwards the incorporated territory is represented by the State which acquires it. No other changes, however, are matters of course ; they rather depend on 1 Many pass over the whole question, e.g. Schaflfner, Fcelix, and Story. We may conclude that these authors see no distinction between the two cases. 2 As early as Bartolus, in L. i. C. de S. Trin. ; Albert Brunus de Stat. art. 6, §§ 3-5 ; Argentraeus, art. 218, gl. 6. ' Burgundus, i. § 45 : " Necfacienda vis est quod Principis aiictoritas easdem leges firmaverit. " Huber, I.e. § 11 ; J. Voet. de statut. § 1 ad fin., Titius, i. c. 10, § 59 ; Meyius, Decis. ii. 185 ; Boullenois, i. p. 521. ■> Zacharia, in Elver's Themis, ii. p. 96 ; Hauss, p. 11 ; Merlin Rep. voc. autorisation maritale, § 10 ad fin. ; Reyscher, Wurtemb. Privatr. i. § 81 ; Philipps, D. PHvatr. i. § 23, p. 186 ; Beseler, § 38 ; Gerber, D. Privatr. § 32, note 3 ; and especially Savigny, p. 27, § 348 ; Guthrie, p. 70 ; Unger, § 22 ; Windscheid, § 34 ; Stobbe, § 29, p. 200 ; Muheim, p 98 5 Themis, p. 283. s Pandects, § 113. '■ P. 20, Archiv.f. d. civil praxis, vol. 37. " § 201 ad fin. 227 (p. 308). ° i. p. 274, note 80, ii. p. 3, and especially Pandects, i. § 31 (end). §35] DIFFERENT SYSTFm OF LAW IN ONE STATE. %g the provisions which the acquiring State has made— possibly, too, they may depend on the conditions under which the acquisition took place.i« This practice of pubhc law, which has been followed in the most recent times," allows the acquired territory to pass over into the possession of the State which has acquired it, for all the purposes of public law as a whole, with all Its legal system complete, although it does not by any means forbid a gradual approximation of the legal condition of the one State to that of the other. The opposite view could only be carried out in a case where the legal conditions of a country were in a very primitive state. Indeed it points at the acquisition of territory under public law being treated on the same principles as the acquisition of an estate under the rules of private law. If the same person acquires two estates, which up to that time belonged to different owners, the special legal relations, such as servitudes, which up to that time belonged to the one as against the other, are no doubt extinguished. But if, putting aside the supreme power of the constitution, the legal system of the incorporated State remains standing, while of course that of the incorporating State also does so, each must continue to possess the same force and meaning in its relations towards the, laws of other territories that differ from its own, for if it did not it would have suffered a change. Legal propositions which imply the rejection of all other legal systems, the so-called coercitive laws, such as the proposition that no compulsitor can be used to enforce an undertaking to marry, do not cease to have their full effect, either in the one territory or the other, merely because both territories are united under the same supreme authority. In the first case, then, which we have put, the theory which proposes to assign a peculiar treatment to the laws of the provinces of an empire, must be rejected as in contradiction of the proposition to which reference has just been made. In the second case, the case where an autonomy has been specially constituted, the particular district will be recognised by the supreme authority of the whole empire State as independent, in so far as the law in question is concerned. It follows, from this independence, that in the case in question a province will be regarded in the same light as an indepen- dent foreign State, and we must return the same answer to the question in this case as we did in the first case, and as we must do in the third case, the case, that is, where some particular law is enacted by the State as applicable to a particular district only. What looks like an exception must be recognised in the first case, viz. ^^ The subjects of the acquired territory, as a general rule, are no longer held to be foreigners in the State which acquires them, although even this consequence is not absolutely necessary, as we shall see below. (See the doctrine of Naturalisation.) '^ Extracts from a number of interesting judgments of the Italian courts, upon the questions here considered, are given by Norsa, Revue, vi. p. 254. A judgment of the Court of Cassation at Florence, on 20th June 1868, claims an vpso jure operation for political laws (i.e. laws that serve to carry out the constitution) and for international treaties in the newly acquired territories. Cf., too, the judgment of the Court of Cassation at Turin, of 30th Sep. 1875 {Jour. iii. p. 217, and the older French judgments there cited). 90 bar's international law. [§ 35 when the application of some rule of law is made to depend on the person whose rights are in question being a native or a foreigner. All the inhabitants of the newly acquired province are regarded as subjects of the State, and therefore, in the case in question, a different rule of law from that formerly applied comes into play. But this is no alteration of the rule itself, it is merely an alteration in the circumstances of the individual who is concerned. English practice offers numerous examples of the law of a dependent province or colony being treated on the same footing as the law of a foreign country.12 Judgments pronounced in Scotland, for instance, are not recog- nised in England as English judgments ;i^ and in a well-known case a married man, who had obtained a divorce from a Scottish court and after- wards had married again, was condemned for bigamy because the English court did not recognise that divorce.^* In the territories of the Eussian empire, too, various territorial systems of law are in force, but one does not observe that any distinction is taken between these various provincial systems of law and the laws of foreign States. ^^ In such matters, German practice recognises no distinction apart from the question as to the execution of decrees.^^ But on this subject of execution certain considerations of reciprocity and retaliation come into play, which are truly of the character of matters of public law.^^ The arguments against our view used by Putter and Mailher de Chassat are quite vague, particularly as neither of them ever points out in what the difference of treatment in the two classes of cases consists. ^^ An interesting decision of the Court of Cassation at Turin, on 27th March 1885, corres- ponding entirely with this view, is reported in the Journal, xiii. p. 617. [By the Judgment Extension Act of 1868 (31 and 32 Vict. c. 54), judgments of the Supreme Courts of one of Scot- land, England, or Ireland, will have the effect of judgments of the Supreme Courts of the other two if duly registered, 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 pronounced in Scotland after jurisdiction has been founded by arrestment.] " Burge, iii. p. 1057. " Burge, i. p. 672. [LoUey's ease, 1812. Russ and Ryan, p. 237.] The judgments of the Court of Cassation at Paris of 18th Thermidor, anno 12, and 12th August 1812 (Sirey, xii. 1, p. 73, and xUi. 1, p, 226), are to the same effect. The first is to the effect that the union of two countries in one State does not make judgments pronounced in one of them before the union capable of execution in the other, and the second to the eflfect that the union of two countries under the same sovereign in the same way does not touch this question, although the judg- ments in both countries run in the name of the same sovereign. A judgment of the Supreme Court at Berlin, of 5th August 1841 (Decisions, ix. pp. 381-391) : "According to § 4 of the introduction to the Prussian A.L.R. , the subject of a foreign State, if he lives in Prussia, is to be judged by its laws, and if two different systems of law are in force in different parts of Prussia, the obligation of reparation is to be regulated by that system under which the act which caused the damage took place." '^ See the paper by Lehr : " De la force olUgatoire de la legislation civile russe au point de ime du droit international " (Jour. iv. p. 205). ^^ See, below, the doctrine of the execution of judgments. ^' Cisleithanian Austria and Hungary are counted as two foreign States inter se in so far as civil questions are concerned ; there is an Austrian and a Hungarian citizenship. Cf. Vesque von Puttlingen, p. 33. 35] DIFFERENT SYSTEMS OF LAW IN ONE STATE. 9I According to Feuerbach, a provincial system of law is given, not to the province as a geographical district, but to its inhabitants, and the geogra- phical boundaries are only named in so far as by them a certain section of the subjects of the State, on whom these laws are to be obligatory, is intended to be described. According to this view, a measure of police confined to a province would affect none but inhabitants who were domi- ciled there, and the inhabitants of the other provinces might transgress it with impunity : the system of personal laws would be recognised in the case of provincial systems of law differing from each other. Puchta's opinion is that, in cases of conflict between different provincial systems, that which is required by the nature of the subject is to have its full effect ; whereas, where the systems of different States come into con- flict, the application of the foreign law constitutes an exceptional rarity, since the judge's duty is to apply none but the law of his own people and his own State. But, in the first place, the reason why the judge applies a foreign law is not that it is the ordinance of a foreign power, but because bis own legal system desires that the case in question shall be determined by foreign law. In the next place, a judge appointed to any particular province is just as much bound to apply the law that is recognised within its bounds,^^ as the judge of a foreign State, in which there are no particular provincial laws, is to accommodate the rule of his decisions to the laws of his own State. In Puchta's view, in this second case, some other principle than a decision according to the nature of the case must step in, a decision, there- fore, which must either be meaningless or inconvenient.^^ It will certainly not be disputed that the central authority of the State can give definite rules for the application of the different provincial systems, nor will it be disputed that such rules may grow up by a course of custom, nor that in many cases they do exist by the operation of both these causes. Thus, for instance, judgments which have been pronounced in one province or in one division of a great State are — not infrequently by the operation of a mistaken theory, or owing to too high an appreciation of the conveniences of such a course — carried into execution over a wider area than should reasonably be allowed.^" But a condition of complete confusion would 18 The supreme court of the country judges its cases just as the court of first instance was bound to do. The reason assigned by Puchta (Lectures, § 113) for rejecting the application of the rule that every judge must primarily apply the law which is recognised in his own country to this case, viz. that the division of the territory into different jurisdictions under one supreme court is merely an administrative rule, which has no bearing on the conflict of laws, is therefore inapplicable. Besides, it is not invariably the case that the different 'pro- vinces of a State have one supreme court. 1' See, on the other hand, Burgundus : "Nam et Eannonumstatutaprincipaliaiictoritatein contrarium sancita sunt; at in amhiguo, nonne eapotius accipienda est interpretatio, quce vitio caret i " 20 The subsidiary law of the North German Bund of 21st June 1869, afterwards declared to be a law of the German Empire, is so expressed, § 1. It introduces a general duty of giving assistance in all civil disputes to the court of the Bund (or Empire) : "The court to which application is made is not entitled to refuse its assistance, even although it holds the jurisdiction of the 92 SAI^S INTERNATIONAL LAW. [§ 35 arise, if we were to try to apply those principles at which Wachter in his Pandects has pointed. Eights and relations, says Wachter, which were established in one district of a State in conformity with its particular law, must be judged of according to that particular law all over the entire State : if they are properly founded, or acquired according to the law of the district, they must be recognised and protected all over the State in the same way. For it is the duty of the State to recognise and to protect every legal relation in the way in which it has been established by the aid of a particular law recognised by the State.^i According to the last rule, the limits even of absolute prohibitive laws, as between the constitu- ent provinces of a State, would be destroyed ; if slavery were recognised in some distant colony of an empire, it could be carried into effect in the empire State, the old civilised country, according to Wachter. But the unvarying and unanimous practice of all the European States, who used to have the institution of slavery in their colonies, contradicts this result. A slave brought from an English or a French colony to England or France, was treated as free. The right of the master, although well founded according to the law of the colony or province, was in this way not recognised in another part of the same State.^^ ^^ All those theories are simply overcome by the observation that, in private international law generally, nothing is recognised that does not correspond with the nature of the subject. Thus a theory which assumes as a matter of principle a difference in the way in which the laws of different States, and the particular laws of the same State, should be treated, can have no other foundation than this, that it proposes either in the one case or in the other something that is at variance with the nature of the subject, that is, something which is unreasonable. Besides, any such difference in principle is at variance with the fact of the manifold diversities of State constitutions which can be conceived, or which actually as facts exist. There are composite States, to which we cannot with complete accuracy apply the conception of a union of different provinces in one State, or of a union as if of personality, or, lastly, of a federation or Bund.^* InWachter's coui't making the application not to be established ; '' and this in spite of the fact that (until the comprehensive judicial code of the German Empire came into operation) there was one common supreme court devoted to commercial matters. 21 Very properly the Court of Cassation at Rome decided (20th February 1885), that patents for discoveries could not be recognised as a matter of course in newly acquired provinces, if the patents had not been taken out according to the law of these provinces (Jour. xlii. p. 619). 2^ See Story, § 96, on this subject. ^ Even the enactment as to the constitution of the courts of the German Empire provides, § 159 ad fin.: " The request (for assistance from one court to another) is to be rejected, if the transaction -which is to be undertaken is forbidden by the law of the court whose assistance is asked." ^ Not one of these conceptions is applicable to the case of Austria-Hungary. See on the so-called real unions, Jellinek: "Die Lehre von den Staateniierhindungen." Wieu 18S2, p. 197. § 35] DIFFERENT SYSTEMS OF LAW IN ONE STATE. 93 View we should have to discover all sorts of intermediate theories in such cases, whereas our theory of its own accord fits into the facts of every case, and we can e.g. in the simplest way ascertain by inference what effect the existence of a supreme court must have on the question of the recognition and execution of foreign judgments in the different parts of a composite State. It is, however, quite consistent with the theory we have adopted that a statute book, by means of express and exceptional enactments, should treat the legal systems of different provinces (or divergent rules of particular systems) differently from foreign laws. It may declare, for instance, that in one case the law of the domicile of the contracting party, who belongs to another province, is to be regarded rather than the lex loci actus, while it refuses to pay this respect to the law of the domicile of a foreign contracting party. To this category the provision of the 84th article of the general German statute ^^ as to bills of exchange, and of the German code of procedure, Civilproeessordnung (§ 53), belong. A supreme court, which unites different provinces under its jurisdiction, is bound to decide, as the lower court, from which the process comes, was bound to do ; and if in the district of the inferior court itself there are different systems, then according to the law of the place to which the parties belonged. (See judgment of the Supreme Court of App. at Jena, 26th Oct. 1826. SeuflFert, i. No. 154)26 ^^ . . . " But a foreigner, wlio by the laws of his own country is not capable of incurring an obligation by bill, will be bound by undertaking such an obligation in this country, in so far as, by the law of this country, he has such a capacity." The sense of this paragraph, it must be admitted, has not been established beyond all donbt. ^ In Hannover the applicability of municipal statutes on matters of private law, to districts newly attached to a town, has been often discussed, and has been answered by Francke and Laporte in the same way as in the text (Magazin fur Hannoverscher Eecht. 1853, p. 370. Neuer Magazin fiir Hannov. Recht. 1861, p. 203). Cf. , too, Leonhardt, " Zur Lehre von den MechisverhaUnissen am Grundeigenthum," Hann. 1843, p. 45. A singular exception exists with regard to the statutory rule of succession between spouses in the town of Hannover by virtue of a special Royal Ordinance of 7th Oct. 1856. Cf. judgment of the Sup. Ct. of App. at Celle, 6th Jan. 1865 (Seuffert, 19, No. 209). Further, a judgment of the App. Ct. at Flensburg 5th March 1867 (Seuflfert, 21, No. 1). Judgment of the Sup. Ct. at Hamburg, of 17th June 1886 (Seuffert, 42, No. 182). "It can certainly not he asserted absolutely that when the territory of a State or of a town is extended, the principles of private law which were recognised in the original territory will be applied in the territory now added. If, on the other hand, the rule of law in question is to be construed as being intended to rule within the territory of the State or town in question, whatever that territory may at any time be, then it must be applied in the land that ha.s now been added to the territory.'' If the object of a treaty be merely to define a doubtful or obscure frontier, then, according to the order of the Prussian ministry of 29th March 1837, those Prussian laws, which are applicable to the jurisdiction to which the hitherto debatable land has been definitely annexed, will be applicable within the newly defined frontier from the date of the original publication of the treaty onwards. As I think, the soundness of such a proposition is by no means self- evident. I should be inclined to think, apart from such express enactment, that it must be left to parties, by the ordinary civil procedure, to establish what laws or legal rules have really been recognised up to that moment in the debatable ground. For an international treaty as to boundaries, although its language njay be declaratory, will in itself regulate the future only, and cannot prejudice the rights of private pei'sons in th-? past. 94 bak's international law. [Note a. NOTE A. ON § 35. RELATIONS OF THE LEGAL SYSTEMS OF ENGLAND AND SCOTLAND. [The courts of England and Scotland are completely independent of one another, although they have a common Supreme Court of Appeal in the House of Lords, and, although the fact of their being, subject to the same sovereign allows judgments pronounced in the one country to be easily executed in the other, regulations to ensure this being enacted by the Judgments Extension Act 1868 (31 & 32 Vic. c. 54), see supra, note 12. Lord Chancellor Campbell (Stuart v. Stuart, 1861, 4, Macq. p. 1, Session Cases, 2nd ser. xxiii. p. 904) has said that, " as to judicial jurisdiction, Scotland and England . . . are to be considered as independent foreign countries, unconnected with each other." Lord President Inglis (Orr Ewing, 1884, Sess. Ca. 4th ser. xi. p. 601) repeats and approves of this doctrine, and it is also approved by the House of Lords in that case (1885, Sess. Ca. 4th ser. xiii. H. of L. p. 1). Lord Blackburn says (p. 17) that it may not be an accurate use of language to call them foreign countries, and Lord Fitzgerald takes the same position, but on their absolute inde- pendence of each other, in so far as their judicatories are concerned, no doubt can be cast. In these circumstances, it is held that where the House of Lords, the common Court of Appeal for England and Scotland, is administering an English doctrine of law which is different from Scottish doctrines, or perhaps antagonistic to them, its authority is not binding on the Scottish court. The converse case will also, of course, be true. In so far as the judgment of the House, however, proceeds upon principles of general juris- prudence, it will be held to be an authority even although the case may be an appeal from the other country ; and, a fortiori, if the judgment is an interpretation of a statute common to both countries, it must be recognised as an authority in both. (See Orr Ewing, id cit. and Virtue v. Police Commissioners of Alloa, 1873, Sess. Ca. 4th ser. i. p. 285.) It is assumed, in the reasoning by which this latter doctrine is supported, that the supreme court, in judging an English case, applies English law and practice, and, in judging a Scots appeal, the laws and practice of Scotland. It is only when the laws of the two countries are identical, or when principles of general jurisprudence are invoked, which are superior to all positive legislation or interpretative of it, that a judgment in a case proceeding from the courts of one country will be an authority to which the courts of the other must conform. It is manifest, however, that the courts of each country may often find aid, by way of analogy or illustration, from the judgments pronounced by their neighbours, just as they derive assistance from decisions of the courts of the United States or any foreign country. English decisions are more used in Scotland for this latter purpose than the judgments of foreign courts, since the principles on which they proceed, and the language in which they are expressed, are more easily and thoroughly intelligible than those of a foreign court would be.] § 36] COERCITIVE LAWS. 95 appendix ii. On the so-galled Coercitive or Prohibitory Laws. § 36. There is a generally recognised rule that in certain cases foreign rules of law are neither applied nor taken into consideration, that is, when they are at variance with the so-called coercitive or prohibitory laws of this country.! -yyg gg^^ ^^jj^^ i^^ modern school of Italy, France, and Belgium use this rule as a means of setting up a fundamental principle in private international law. But they have hardly succeeded in defining those prohibitory laws with much exactness ; while Brocher and Weiss, in order to reach a sharper and more apposite definition of the idea, have set up a distinction between Ordre public interne, on the one hand, and Ordre public international on the other.^ It cannot be disputed that such cases of conflict do arise ; slavery, or a right of property over another person, cannot be put in force by the vindication of a person in a country in which institutions of that kind do not exist, or rather are regarded as immoral. But these cases are much less common ^ than people think. In the first place, it is observed that, while our law may regard a legal relation as unwarrantable in our economical and social circumstances, the circum- stances of a foreign country, differing from those of our own, may cause it to seem quite justifiable. For instance, in country A a certain rate of interest may seem usurious, which, in country B, may have its justifica- tion. It would be unjust to dismiss in country A, a suit depending on a contract to pay interest which belonged to country B, merely on the around that the maximum rate of interest allowed in country A had been exceeded.* 1 We must not confuse the class of laws alluded to here with those which merely refuse to give way to the wishes of parties, as is the case with Thol, § 74. Laws which settle the limits of majority and minority do not give way to the wishes of parties, and yet Thol himself, § 78 proposes that the lex domicilii should be the rule in such matters even in foreign countries. 2 Codice civile Italiano disposizione sulla pull. etc. art. 14 : "Notwithstanding the pro- vision of the preceding articles, in no case can the laws, the documents, or the judgments of a foreign country, or private dispositions or contracts, derogate from the prohibitory laws of the kingdom which concern persona, things, or documents, or from laws which concern in any kind of way public order or morality." Eesolutions of the institute of international law, at the Oxford Conference of 1880, No. viii. (Annuaire, 5 eme ann^e, p. 57) : " JEn aucun cos les lois d'un etat nepourront ohtenir reccmnaissance et effet dans le territoire d'un centre etat, si dies y sont en opposition, avec le droit public ou avec V ordre public." 2 Even Phillimore, § 15 et seq., emphasises the exceptional character of these oases. <> For this case, see the chapter on the law of obligations. The grounds for a divorce, in a judgment of the Supreme Tribunal of Commerce at Leipzig of 25th June 1872 (Seuffert. 27, No. 156) touch a peculiar case : they bear that, although the application of native customary law be excluded by some prohibitory enactment of the native legislature, this enactment does not extend to a foreign law of custom. The iirst article of the German Commercial Code has made an order of precedence only for native legal authorities, but settles no such order as between native and foreign authorities. Native and foreign authorities are necessarily mutually exclusive. We may add: What would happen if by chance the law of State A, which is com- pletely codified, excluded on principle the application of all rules of customary law, while in State B customary law was the generally prevalent order ? g6 bar's international law. [§ 36 The question, then, must be more sharply defined. The fact that our laws, or our legal ideas, reject the rule of law or the legal relation which another country recognises, can never prevent that rule or relation from receiving effect. The only question that can arise in any case is whether the effect of the rule of law, or of the legal relation which is to operate within the domain of our legal system, is in contradiction to absolutely imperative rules of our law, or to moral principles which obtain among us. It is just at this point that it is specially important to observe that, as we have already pointed out, a legal relation need not necessarily belong exclusively to any one territory, but may very possibly in its operation branch out into several different territories. Our rights are always confined to this, that we may treat as non-existent, cut off and put out of sight, those branches and offshoots only which come to light on our territory. The trunk of the tree, which is rooted in a foreign system of law, is beyond our power, and if the branch or offshoot, which came into existence in this country, had no power to produce any mischievous results, if it could not come into conflict with our legal system, it would be wrong and unjust to destroy it, simply because the trunk from which it sprung could not be tolerated, if it had its roots in this country. For instance, polygamy cannot be suffered to exist in this country ; but can we deny to the sons of a Mohammedan, who has lived after the law of his own country in poly- gamy, the right of property in a thing belonging to the father's succession which happens to be on our territory ? Certainly not.^ Polygamy is in this case only the remote foundation of a claim, which in other respects does not come into conflict with our legal system ; it is a condition precedent to the process for asserting that claim. Polygamy exists, and did exist iu these foreigners' country, and the decisions of our judges cannot touch it. But if our system of law refused to recognise legal relations of the kind, which are illegal in this country, even as facts or conditions precedent to other legal claims, the final result of this view would simply be to throw intercourse with the foreign country in question into complete confusion, and in truth to do away with any settled intercourse. In view of slavery in particular. Story, § 96, ad fin. says : "In an important case in America, it was held that civil incapacities and disqualifications, by which a person is affected under the law of his domicile, should be held valid in other countries so far as applicable to acts done, or rights acquired in the place of his domicile, but not as to acts done or rights acquired within another jurisdiction where no such disqualifications exist." But it is certain, and this seems to be the true test, that our legal system and our courts cannot lend themselves to the direct realisation of legal relations or claims which would be rejected by our law as absolutely untenable. Thus a slave who has been brought into this country, or has escaped into it, cannot be claimed here ; a woman, who has escaped from the harem of a Mussulman 5 On this point, see the agreement between Lomonaco, p. 60, and Laurent, 4, § 293. '^6] COERCITIVE LAWS. 97 cannot be constrained by our courts to continue her polygamous marriage ; ^ the betrothal of a Mussulman, who is living in polygamy, to a second or third wife will not be allowed to take place in this country ; and an action founded on some unlawful game, for instance, will be absolutely rejected by the tribunals of this country. So far as the principle has been formu- lated up to this time, i.e. has found expression in positive enactment, it has not been remembered that to recognise a law as a fact, and to assist it directly in extending its operations by carrying it out to practical conclu- sions, are two different things. The new draft of the Belgian Code (see below, note 8) is the best expression of these considerations that we have, while the conception of the Oxford resolutions of the Institute of International Law is far less complete. If the question is guarded in this way, the deter- mination of the particular cases which it would be impracticable to enumerate a priori may be left to judicial discretion. In our view, we are not concerned with any fundamental principle of private international law, but only with the decision of a few exceptional cases, which are of rare occurrence among nations which stand upon approximately equal stages of civilisation.^ Laurent (viii. §§ 95-121) has, with particular regard to the law of obligations, undertaken a very searching enquiry, with the object of accurately characterising those rules of law, on which the present question turns. But this attempt, too, is unsuccessful. The formula " laws, which ' See Wharton, §§ 120, 129. This case has recently come up for decision, on the occasion of one of the wives belonging to the harem of the Khedive Ismail-Pacha, who had been forced to abdicate, falling in love with a Neapolitan, and escaping to a small village in the province of Naples. On production of a deliverance by the Italian ministry, the civil functionary proceeded to celebrate the marriage. This was perfectly right. To have refused to marry them, in such a case, would have been simply to give effect to the operation of the law of polygamy, under which the runaway woman had lived (Jour. vii. p. 338). ' Savigny, p. 37, § 349, Guthrie, p. 80 (but see also Unger, § 22 ad fin.) asserts besides that there is no room for the application of foreign rules of law, if the whole legal institution to which they refer is unknown to our law, as e.g. slavery, or the so-called civil death, which is imposed as a punishment. But, apart from the consideration that, in the cases immediately in Savigny's view, the application of the foreign rule of law, or more properly its realisation, is inadmissible on the grounds already considered, it is to be remembered that legal institutions of different countries which go by the same names are yet, in so far as their results are concerned, very different from each other. Are they then identical, or are they distinct legal institutions ? If we decide in favour of the former alternative, we regard, in the scholastic style of Bartolus, the name as the determinant; if in favour of the latter, we may exclude, in a most arbitrary way, the application of any foreign rules of law we like (see above, § 29). Savigny himself supplies an eloquent example of this arbitrary procedure. He thinks (of. p. 196 et seq. § 368, Guthrie, p. 191), and rightly thinks, that it is inadmissible that a right of pledge in a moveable thing, founded on the common law of Rome in country A, should be successfully pleaded against a possessor of that thing in country B, where rights of pledge in moveables can only be enforced against third persons in possession, if they have been previously completed by delivery. Instead, however, of settling this determination on the ground that the right of the possessor, which took its rise in country B, is superior to the right constituted by the pledge, he says that a right of pledge founded on a mere contract is a different legal institution from one founded on delivery. But in that way a right of property, founded according to the law of France upon a simple bargain, would not be capable of being pleaded within a territory ruled by the common law of Rome, because tradition is necessary there. G 98 bar's international law. [§ 36 have reference to the rights of society" (lois relatives aijux, droits de la society, is no more distinct than the formula " laws which concern Ordre Public ; " and for the most part the other particular rules which he adds as elaborations of the principal proposition are just as vague.^ If it were necessary, in framing some code, to lay down rules for the application of foreign law, we could not, it is certain, dispense with some proposition which should express the protection to be given to the laws of our own country against those of foreign countries, which rest upon moral or social theories which differ violently from our own. It is by no means easy to hit upon the exact language which would be proper to such a proposition. Fortunately, we should only have to have recourse comparatively seldom to such a clause of exception, which would serve as a safety-valve : that is, if our other principles were correctly formulated. Perhaps we might put it thus: " The application of foreign rules of law is excluded in so far as it would serve to bring into operation in the territory of our State legal relations which cannot be permitted according to our legal system, or to compel the performance of acts and services which, in accordance with our legal system, should not be compelled." Application of Foreign Law on the Motion of Parties only or ea; ojfficio. Proof of Foreign Law. Is the Omission to apply a EuLE of Foreign Law, or the erroneous Application of it, accompanied by the same Eesults as emerge if a Eule of OUR own Law is left out of consideration or erroneously applied ?i Treaties, in so far as they touch on Private Legal Eelations. § 37. According to the strict view that once prevailed,^ foreign law is simply, as far as the judge is concerned, a fact, and in any suit must 8 See p. 155, § 98, and Avant-projet beige, art. 26. " Cette rfegle s' applique : (1.) Aux lois qui dependent du droit public (?) et du droit penal. (2.) Aux lois qui conoernent les bonnes moeurs. (3.) Aux lois qui abolissent les privileges politiques en mati^re de succe. and the right of navigation round these coasts, is an exclusive right of its own subjects.^^ In modern times, many treaties have been concluded with a view to settle the boundaries of such exclusive rights of fishing in the subjects of different countries. We may, however, commit the subject to public law in the proper sense rather than to private international law. We have only this further remark to make, that even those legal systems which allow foreigners in other matters full legal rights as regards private law, exclude them from the acquisition of national ships, or at least allow foreigners to have only partial rights of property in their sea-going ships.^'' This exception, however, is only one in appearance. The acquisition of the property, in so far as it is not merely the acquisition of a share in the ship,^^ and is not at once followed by a re-transmission to some subject of the country, is not for all that a nullity. All that is lost is the right to carry the national flag, and to carry the national flag without proper authority involves penalties, so that in many systems of law it becomes necessary that any share in a ship, which by succession, or in any other way, has fallen to on& who does not belong to the nation, should be disposed of to some subject of that nation.3^ The matter simply stands thus : A ship of a particular national character is to some extent a part of the State itself — it is so cer- tainly on the high seas — and the State must take care of its own, and has a, certain responsibility for a ship sailing under its flag. The owner, again, has to represent the ship in matters of private law. In this way, there is a necessity that the nationalities of the ship and its owners should be the same. After what has been said, we may describe the rule which the Institute ^ Of. v. Martens, i. p. 378 ; ii. p. 234. In the international treaty of 6th May 1882, con- , eluded among the North Sea powers, i.e. Germany, Belgium, Denmark, England, France, and the Netherlands, the 2nd article provides that "the fishermen of each country shall enjoy the exclusive right of fishing within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks." [For the full text of this convention, see 46 and 47 Vict. c. 22, The Sea Fisheries Act, 1883, to which it is appended as a schedule.] ^^ Cf. Perels, InterncdionaUs ScerecM, p. 55 ; and R. "Wagner, Handhuch des Scerechts, i. § 19. [The Merchant Shipping Act of 1854, 17 and 18 "Vict. c. 104, provides (§§ 62-64) that if any one who is not qualified to own a British ship, i.e. (§ 18) who is not either a natural-born British subject, or who has obtained letters of denization or naturalisation, or a body corporate subject to the laws of and having its principal place of business in the United Kingdom or in some British possession, succeeds, in the event of death or marriage, to a title to a British ship, application may be made to the Court for an order to sell the ship or the shares in her, nnd if the application is not made within the time, the property thus transmitted is forfeited to the Crown. § 103, subsec. 3, provides that if any unqualified person acquires as owner in any other way any interest, either legal or beneficial, in a ship using a British flag, and assum- ing the British character, such interest or property shall be forfeited to Her Majesty. See Maclachlan on Shipping, p. 70.] ^ For instance, the simple explanation of art. 470 of the German Code of Commerce, whereby the alienation of shares in a ship to a foreigner without consent of the co-owners is null, is that this alienation, just because it would take away the right to carry the flag, is prejudicial to the rights of the other co-owners, and offends against one of the conditions of joint-ownership. ^^ See, on this case, espe'cially "W'agncr, i. ji. 158. o ■'^"'^] RIGHT OF RESIDENCE. 219 of International Law*» adopted in 1880 as practically worthy of recom- mendation, and even already adapted to the legal systems of most civilised States. It is, " L'etranger quelle que soit sa nationality ou sa rdigion jouit des Tnimes droits civils que le rignicole, saufles exceptions formellement etablies par la legislation aduelle."^^ Eight of Eesidence in the Country. Expulsion of Foeeignees.*^ § 100. Lastly, it is obvious that the capacity and the rights of foreigners must be different from those of the native subject, in the respect in which foreigners are distinguished from subjects : it is only the subject who has a complete right to live and reside in the State (see § 54 supra), whereas foreigners may be expelled or refused admission .^^ By that statement, of course, we do not mean that foreigners may be expelled** on purely arbitrary grounds.*^ It is very soundly said in a dispatch of Mr Everett, a Secretary of State in the United States in 1852, that "this Government could never give up the right of excluding foreigners whose presence they might deem a source of danger to the United States." But a statement of Mr Secretary Evarts in 1879 is just as sound, viz. : " . . , yet the manner of carrying out such asserted right may be highly objectionable. You would be fully justified in making earnest remonstrance should a citizen of the United States be expelled without just steps to assure the grounds of such expulsion" (Wharton, Dig. 2, § 206, pp. 516 and 518), In an absolute sense, no doubt, the State *" Annuaire, v. p. 56. ^ But no State is denied the right of making exceptions for some particular nationalities, e.g. from excluding coloured races from the acquisition of certain rights. *2 As a rule, this doctrine of expulsion, a doctrine which upon the whole is much neglected, is only dealt with in treatises on public law : an arbitrary expulsion is simply regarded as an insult to the State to which the expelled person belongs. But such an expulsion affects very deeply the private legal interests of that person. It belongs, therefore, on the one hand, to the sphere of private international law, and an injustice so inflicted is not removed by the faUure of the State to which the injured person belongs, from weakness or from connivance, to raise any objections. No doubt the person unjustly expelled has no right of action, or right to damages, if his own State does not obtain the latter for him. *> Even in Italy, in spite of the equal legal capacity of foreigners of which so much is said as a principle, there is no doubt that they may be expelled for special reasons. See Gianzana, i. § 79. *» V. Mohl (Volkerr. u PoKtik) i. p. 627, speaks very strongly against the arbitrary exclusion of foreigners from any State. He recognises as a principle that, as a rule, every human creature has a right to follow out the future objects of his life wherever he thinks he can find the proper means of doing so, and for that end to set foot on foreign States and to reside there. He holds that, if need be, force may for this reason be used against a State that shuts itself completely off from others, and thus shows itself to be an enemy of mankind : he thinks that the course taken by the powers of Europe against China was therefore conditionally justified. « See the author's paper in Jour. xiii. p. 1, on "I'expuMon des strangers." See, too, Bluntschli, Volkerr. §§ 381-383 ; v. Bulmerincq in Marquardsen's Handb. ii. 2, p. 240 ; and Heffter, Volkerr. § 33, No. vi. 220 bar's international LAW. [§ 101 can close its territory to foreigners.^* But if it opens its frontiers to them, and gives them an implied invitation to reside in its territory, either itself keeping up all sorts of means of communication with foreign countries, or allowing others to establish such means, if it permits them to carry on trades there, to acquire property, and to make costly improve- ments on it, it would be nothing short of a violation of the hona fides which must be observed in international intercourse,*'^ if it was then suddenly and arbitrarily to expel all foreigners, and in fact compel them to sell, perhaps at great loss, their property, and to break up the commercial and family connection which they had formed. We cannot, therefore, approve of an absolute, unrestrained, and arbitrary power of expulsion. § 101. We must, then, require that there should be some grounds for the expulsion. As a rule, these can only be found, 1st, in the poverty of the person expelled ; 2nd, in some crime which he has committed, or contemplated, i.e. for which he has made preparations, inasmuch as this will show that he is dangerous to the public safety f^ '3rd, in disobedience to the law ; 4th, in the fact that he remains in the country, although he has expatriated himself and has acquired a foreign nationality, or has exercised an option in favour of another nationality in order to evade the law, aixd^ to avoid the burdens which the State imposes on its subjects ; and 5th, in the fact that the individual cannot show any particular nationality, but yet refuses to acquire nationality in the State where he is, in order to withdraw himself from the duties of a subject, especially the obligation of military service. It is also a sixth ground, and one that has long been recognised, that a State has a right to exclude the subjects of another State with which it is at war. It cannot be disputed that possibly the security of the State, and even the security of the subjects of the hostile State themselves, may require some such measure ; but very frequently it will be a mere useless piece of harshness, which may injure in very many ways the State which adopts it.*^ It is obvious that, where the reason for '^ E.g. can forbid criminals or persons in need of support from the poor law to be introduced. See Wharton, Dig. ii. § 206, on the attempts by the United States to adopt justifiable means of protection of this kind. The statute of the United States of 26th February 1885 (given by Wharton at p. 526) against the immigration and importation of persons who are already under contracts of service, is, as a matter of public law, unobjectionable. [See this right of exclusion affirmed by the Privy Council in the case of Musgrove v. Chun Teeong Toy, A. C. [1891] 272, at least to the effect of refusing an alien a right of action to compel admission.] ^^ Vattel, iii. 8, § 104, very rightly remarks ; " Le souverain ne pent accorder Ventrie de ses itats pour f aire tomber Us strangers dans «» pUge." Alex. Braun, in the issue of the Berlin weekly publication Die Nation of 30th May 1885, has called attention to this interesting passage. Braun's paper criticises the numerous expulsions of foreigners of Polish nationality from the eastern provinces of Prussia, by the Prussian Government, in the period from 1884 to 1886. ^ It would be wrong, except for grave crimes, to hold a past offence to be by itself a reason for expulsion. The true ground is the dangerous character of the individual. Thus the presumption arising from a conviction may lose its force by the circumstances, the subsequent good conduct of the convict. To this effect a circular of the French Minister of the Interior, of 16th December 1885 (Jour. xiii. p. 497). *° V. Mohl, who at the outset is a strenuous upholder of the right of foreigners to reside, proposes to allow the expulsion of foreigners, putting aside a power of exclusion, on account of §101] EXPULSION OF FOREIGNERS. 221 the expulsion is some crime that was committed before the person entered the State, or some crime that has been committed within that territory, it must be a more serious one if it is to justify the expulsion of a person who is domiciled, than it need be in the case of a person who has only a passing residence within the territory.^" To supplement the material reasons for expulsion, we shall require also certain formal guarantees which are still awanting in the legislation and the practice of most of the States of the Continent of Europe. In the first place, the person who is to be expelled must receive intimation of the reasons for his expulsion." If a State refuses to assign reasons for it, this important measure is made to wear at least the appearance of an act of arbitrary administration. Again, in every case in which the expulsion is based upon the individual conduct of the particular person, and there is no general regulation in question, as there would be where war was threatening or had broken out, there must be a right of appeal, either to a higher court, an administrative court,^^ or to another cognate official body, which would be in a position to take proof on the facts which may have been assigned as conditions for the expulsion. If there is a threatened outbreak of disturbances, the Government must for convenience be allowed any unreasonable or unlawful purposes, if there is good ground for supposing that they will disturb the public peace, or interfere with the pursuit by the State of its own objects. The clause which we have italicised is, however, either superfluous, if the objects of the State are expressed in its legislation or can bo reached by means of it, or the effect of it is to justify any arbitrary acts. For, in a case of expulsion, there is always some object that can be cited to support it. ^ We must on this subject remember that, according to the older view, no domiciled persons were looked upon as foreigners, and consequently such persons were not liable tO' expulsion as foreigners. Fiore, Diritto intern, pubblico. i. p. 528, calls attention to a Danish law of 15th May 1875, which makes the distinction between foreigners who are and foreigners who are not domiciled, which we have noticed in the text. The Belgian statute of 6th February 1885, art. 2, excludes from liability to expulsion " celui qui a iti autoris4 A itablir son domicile dans le royaume, celui qui s'est marii avec une femnie Beige, dont il a un ou plusieurs enfants lies en Belgique pendant sa risidence, celui qui, marii avec unefemme Beige a fixisa residence en Belgique depuis plus de cinq ans et a continue A resider, d'une maniire permanente." On the distinction between the power of expulsion as regards domiciled and non-domiciled; foreigners, see Suliotis, Jour. xiv. pp. 431, 432, who, in this connection, says of the Roumanian law of 7th April 1881: "L'abusqu' on a fait de cctte loi exceptionnelle rappelle les]temps de Vostracisme Athinien et la xenelasie Lacedemoniennc." 51 France has concluded a series of treaties in which it is made a condition that the subjects of the contracting parties shall not be expelled except for weighty reasons, and that these reasons shall be communicated to the consul or other diplomatic representative of the State as- well as to the person himself, that, if possible, they may be met : e.g. a treaty with Bavaria of 30th May 1868, with Bolivia, etc. (cf. Durand, p. 515). This provision is also in force for the German Empire, by reason of the most favoured nation clause of the treaty of Frankfort^ art. 11. The 11th article of the police regulations of 17th April 1885, for Bosnia and Herzegovina, provides similarly that written intimation of the reasons of expulsion shall always be given to the person who is expelled. 52 On this, see Fiore, Diritto intern, pubbl. i. p. 526. The Dutch statute on this head, of 19th August 1849, which is still in force,, gives in certain circumstances an appeal to the- supreme court. The recent Belgian statute of 6th February 1885 (given in the Jour. xii. p. 342) requires for expulsion an " arrite royal deliberi en eonseil des ministres." Tlius no one minister can decree expulsion, and, besides, the 7th article provides that an annual report shall be made to the chambers as to the execution of the statute. 222 bar's international LAW. [§ 101 to expel all foreigners, from whom they have any reason to fear a breach of the public peace, without allowing in that case any right of appeal. The question of the right to expel foreigners from the territory (upon which Eolin-.Tacquemyns' paper in Eev. xx. p. 498 may be consulted) was in 1888 taken up as a subject of discussion by the Institute of International Law, but has not as yet been fully disposed of. At the same time, pro- ceeding upon the view that while no State could altogether renounce its right of expelling foreigners, this measure, which of course presses very severely on individuals, should not be employed capriciously, or without certain protective guarantees both in form and substance, the meeting, adopting the report of a Committee,^^ were at one in approving of some preliminary resolutions, the sense of which is as follows. Certain distinctions must be made. A. We have first to deal with expulsion in pressing cases, where despatch is urgent, i.e. expulsion in time of war or of serious riots. A sentence of expulsion of this kind may go out against particular individuals and entire classes. It was thought that the Government or the Police must in such cases have a freer hand, just because the matter is one of immediate peril of a more general description than is usual. In such cases, therefore, the guarantees afforded by the necessity of convoking courts of law or administrative bodies are out of place. Just as little is there any possibility of having the character of individuals investigated by the court, to see if they be native subjects or foreigners, in case there be doubt about it. On the other hand, a measure of this kind, which is only intended to meet passing dangers, ■should have no more than a temporary operation, it being always possible .to convert it into one of the other two kinds of expulsion, if the conditions necessary for doing so are present. B. Extraordinary measures of expulsion directed exclusively against whole classes, and not against individuals. As is well known, it has been asserted in very recent times that, under certain circumstances, a State may find itself forced into the position of adopting a general measure of expulsion against foreign elements which are pressing in upon it, and threaten to swamp it. The Institute refrained from laying down any material limita- tions for such large measures as this, which can only receive final judgment from history, and which must be ruled by political constellations, and perhaps in certain circumstances by sentiment. It was thought, however, to be convenient for those States, which desire to take their part regularly in international intercourse, that they should submit themselves to certain formal limitations of that extreme prerogative. These limitations were intended to protect them against the influence of undesirable elements in the exercise of their rights, and to ensure the State itself, on the one hand, against momentary rashness, and to give the individual, on the other hand, protection against the same danger. This formal safeguard is to consist, 53 The members of the Committee were: Rivier, Brusa, Lamasch, Pra lier-Fodere, Rolin- .Jacqutmyns, and the author. § lOi] EXPULSION OF FOREIGNERS. 223 according to the view of the Institute, in withdrawing the highly oppressive, and in many respects fatal, measure from the sphere of administration as far as possible, and in referring it to the more deliberate course of special legislation, which in itself affords better guarantees. If, however, owing to the frame of the constitution of any particular country, this course should Le found to be impracticable, because e.g. there is no sharp line drawn between statute law and resolutions of the Government, as in States which are under an absolute system, then at least the ordinance should be published for a reasonable time before it acquires absolute force, so as to allow the individuals concerned time to set their affairs in order, so far as may be, without serious loss. Again, it shall not, it is proposed, be lawful to evade the necessity of such special legislation, or of such a general antecedent proclamation, which shall make the public aware of the measure, and inform public opinion and other critics, by issuing orders of expulsion against a multitude of individuals. For the same reason, in dealing with the third kind of expulsion which we have to enumerate (expulsion ordinaire), we require some such preliminary steps, and hold that without them it is unlawful to expel any individual. C. The expulsion of individuals {expulsion ordinaire) should only take place by reason of special causes to be found in the individual character or circumstances of each person (want of means, commission of a crime, imperilment of the public safety, etc.), and these causes must be made known to the persons concerned. The Institute reserved the subject of this expulsion ordinaire for further deliberation, and merely adopted the resolution that foreigners, who are domiciled in the country, or have a place of business there, should be less exposed to such measures than those who have neither domicile nor place of business ; the former class would of course be more severely injured. But even persons who are temporarily resident in the country, or even those who are simply travelling through it, should not be without some safeguard against sentimental measures of expulsion. The declaration which was adopted runs thus : — " L' Institut de droit international considirant que V expulsion comme ['admission des Grangers est une mesure de haute police d la quelle aucun Mat ne peut renoncer, mais qui, selon les cir Constances, tombe parfois dans rouhli et parfois s'impose subitement ; " ConsidArant qu'il peut etre utile de -formuler d'une maniere ginerale quelques principes constants qui, tout en laissant aux gouvernements les moyetis de remplir leur tdche difficile, garantissent t, la fois, dans la mesure du possible, la sicuriti des Mats, le droit et la liberti des individus : " Consid^rant que le voeu de voir reconnaitre et consacrer ces principes -ne saurait impliquer aucune appreciation critique d'actes d'expulsion qui auraient eu lieu dans le pass6 ; " Estime que Vadmission et V expulsion des etrangers devraient Stre soumises & certaines regies et propose, en attendant un projet complet qui pourrait itre vMrieurement discuti; "Art. 1. En principe tout I'Etat souverain peut regler Vadmission et 224 bar's international law. [§ 102 I'expulsion des Grangers de la maniere qu'il juge convenable ; mais il est conforme. d, la foi piiblique que les strangers soient avisds au prdalahle des regies gdnirales que VEtat entend suivre dans I'exercice de ce droit. " Art. 2. En dehors de cas d'urgence, tels que ceux de guerre ou de troubles graves, il y a lieu de distinguer, entre I'expulsion ordinaire s'appliquani (t, des individus determines et I' extraordinaire, s'appliquant a des categories d'in- dividus. " Art. 3. L'expulsion pour cause d'urgence ne sera que temporaire. Elle n'excMera pas la guerre ou un delai determine d'avance, dt, I'expiration du, quel elle pourra itre convertie sans nouveau delai en expulsion ordinaire ou extraordinaire. " Art. 4. L'expulsion extraordinaire seferapar loi speciale ou, tout au mains par ordonnance publide prealablement. L'ordonnances ginirale divra, avant d'etre mise b, execution, Hre publiee k I'avance dans un delai convenable. " Art. 5. Pour I'expulsion ordinaire, il faut distinguer an, point de vue des garanties, les individus domicilies ou ay ant un etablissement de commerce de ceux qui ne se trouvent dans aucun de ces deux cas. "Art. 6. La decision pronongant une expulsion ordinaire et indiquant les dispositions sur lesquelles elle se fonde devra etre signifiee co I'interesse avant d'etre mise A execution." ExTKAOEDiNARY EXPULSIONS en masse. § 102. It is, lastly, possible that a State, and particularly one of the smaller States, should feel itself in a special degree imperilled by ft continuous incursion of foreigners, and should, perhaps, look upon a measure of expulsion as a matter of necessity. No State, it is true, can in the abstract be denied this extraordinary privilege, which will press- hardly upon an indefinite crowd of individuals. But, if we consider this privilege rationally, we shall find that it is not an affair that belongs to- the regular administrative powers,^* but, in so far as it may be possible to draw a line between the legislative and the executive powers, it belongs to the sphere of the former. By such a measure, the social and economical conditions of whole provinces may be most vitally affected. But, at the same time, there is in such cases a moral duty incumbent on the legislature to make the measure generally known, and in such good time that the persons affected by it may be able to set their affairs in order. Periods of weeks or of a few months are not sufficient for the purpose. The question whether there was in this or in that modern instance good ground for such measures, is a question of fact in the region of politics, and is ^ The expulsion of foreigners of Polish descent, in 1885, was so treated by the Prussian Government. According to the way in which the law was expressed, the Government was right. It is quite another question whether the use to which the power given to the Government by the Prussian statute was put, in the casj in question, was not at variance with tlie traditions of public law. §102] y. EXPULSIONS EN. MASSE. 225 therefore beyond the limits of • our . subject. We need only, ho.wever, picture to ourselyes what mischievous relations may arise between the different States concerned, what enmities and evils on both sides may grow up out of such measures, in order to admit that the question must necessarily be considered as one which deals with the application of what is a real and a very pressing danger. , The residence of foreigners in the territory of a State can never grow into an unassailable right. But just as little is it possible that the expulsion or extrusion of them should be an arbitrary or a secret pro- ceeding, unless a State is willing to consent to be excluded from the blessings of an orderly and secure commerce with the rest, of the world, It must, in such a subject, be the task of international law to set the proper bounds to the power on both sides, and to reconcile with each other as far as possible the legal security of the individual and the safety of the State.^^ Up to the present time there exists a very vital difference between England and the United States, on the one side, and the States' df ' the Continent of Europe on the other, a difference which may possibly hav.$ its origin just as much in the diversity of their geographical positions ag in the diversity of their respective views of the .proper limits of police interference and of individual freedom of intercourse. The law of England as a matter of fact knows nothing of measures of expulsion except in times of war, and then only with the concurrence of the legislative authority ,°^ and in the United States there is only an exclusion of persons arriving for the first time. On the other hand, in the great States of the Continent of Europe, the expulsion of foreigners is merely a matter for the exercise of the discretion of the administration, i.e. of a single minister,^'' and the Prussian legislature has lately gone so far as to take occasion expressly to refuse, in the case of the expulsion of persons who do not belong to '5 It may be the case that some treaty expressly assures to the citizens of other States the privilege of residence in the territory, and this may be asserted to be the case, if the exercise of trade and commerce is assured, since any such privilege woiild be illusory unless accom- panied by a right of residence. In such cases, we do not hold that the right of expulsion is absolutely renounced, but it must then be confined to individual cases, and the reasons for it must always be communicated to the Government of the person expelled as well as to himself. It would in such a case be a violation of the treaty if an expulsion en masse, or without special reasons founded on the general usages of public law, took place. And in our view, again, if a treaty has been concluded with a Government, which according to its well-known principles makes no distinction between tlie adherents of different religious denominations, tliat treaty is violated if the other contracting State subsequently refuses to allow .the subjects of the first State to reside, if they belong to some particular confession, e.g. are Je^vs. On the differences between the Governments of Russia and the United States as to the treat- ment of the Jews in Russia, see Wharton, Dig. i. § 55. '6 See Phillimore, 1. § 220. The law of the United States against the immigration of Chinese is a measure of exclusion, not one of expulsion. ^ This is the case in France and in Prussia. The Prussian statute as to the general administration of the country, of 30tk June 1883, in its 130th section ad fin- expressly denies all appeal to the administrative courts to the foreigner (i.e. person who does not belopg to the empire) who has been expelled. See, too, the older law of 26th July 1880, There is no P 226 bar's international la IV. [§ 103 the empire, that legal protection which it affords against many other proceedings of the Executive, by concession of a right to demand a decision from the administrative courts. It may be that in the future there will be a greater agreement in the law, or in the practice of it, upon this point. It may be that, as intercourse increases, and in view of the fashion in which not unfrequently nowadays the masses of the people are incited to violence by foreign agitators, the necessity of expelling individual foreigners who are a source of danger may make itself felt even in England and the United States, while some other States will learn not to confuse really dangerous characters with persons who are politically distasteful to them, or who are suspected of being likely to be inconvenient or actively opposed to the ruling policy of the day.^^ Eetaliation. § 103. Let us, in conclusion, once again touch upon the subject of retalia- tion. Eetaliation and reciprocity are in truth one and the same principle : the presumptions under which the one and the other respectively are worked, are, however, different. The State that starts upon the principle of reciprocity will not treat a foreigner on the same footing as one of its own subjects, unless it shall be positively proved, or at least shown not to be improbable, that the like treatment will be extended in that foreign State to its own subjects. On the other hand, the State that desires to practise retaliation resolves upon an unequal treatment of foreigners only when it shall be positively assured that an unequal treatment is practised elsewhere upon its own subjects. Eetaliation, therefore, is much more conducive to general inter- course than reciprocity. Again, in a question of retaliation the point is whether the foreign State set the citizens of our State, or foreigners in general, at a disadvantage to its own citizens in the matter in question, because they are citizens of our State, or foreigners generally. If it is merely a difference in the foreign law that gives rise to an accidental prejudice to the citizens of our country, and if in like case a subject of the foreign State itself would be treated in the same way, then there is no corresponding law for the German Empire : thus the law of each State must still decide. But, on the ground of § 39, subsec. 2 of the German Criminal Code, a decree of expulsion pro- nounced by the officials of any one State operates all over the empire. But by art. 4, subsec. 1 of the Constitution of the empire, the empire has the power of passing a statute of expulsion from the whole of the empire. In Prussia, it would appear that the officials do not even think themselves under any obligation to communicate to the person expelled the reasons for his expulsion. ^ The editors of the Journal of Private International Law have done good service in exerting themselves to produce a series of expositions of the legal capacity of foreigners, and their general treatment by the laws of different countries, from authors who knew the subject. On Peru, Pradier Fodere, v. p. 577; on Italy, Esperson, vi. p. 329; on Sweden, Dareste, vii. p. 434; on Austria, Stoerk, vii. p. 329 ; on Servia, Paulovitch, xi. p. 5. On Germany, see Stobbe i. § 43. § 104] JURISTIC PERSONS. 227 ground for retaliation. Eetaliation is only permitted in the view of avoiding injustice to the citizens of our country, and hindering it for time to come. Its object is not, as would be the result in the case we have put, to force the foreign State to apply our laws within its own territory.^^ In defining retaliation as the establishment of a rule of law that sets foreigners at a disadvantage, it is implied that the rule of law so set up shall not be applicable to rights which have been already acquired.^o and that a legislative resolution by the authority of the State shall be necessary for the applica- tion of retaliation : the individual judge or a private person has no right to apply it. appendix. The Legal Capacity of Juristic Persons. The Principle. § 104. There may seem to be more difficulty about the recognition of the legal capacity of juristic persons ^ (foundations and incorporations) that belong to another country, than there is about the recognition of the legal capacity of foreigners. To a superficial observation, the former look like purely artificial creations of the law or of statute. Accordingly, the life of these artificial creations must cease at the point at which the power of the legislator ceases, i.e. at the frontier of his dominions; and the foreign legislator will require to reanimate this artificial creation by some special provisions for his own dominions. This is the opinion which Laurent ^ holds : he is filled with an extreme dislike of religious corporations, and undertakes to show that most other corporations are in the same way mischievous to the public security. The only corporations which he is ready at once to recognise as necessary and beneficial are the State itself, and such corporations as more or less serve objects ^ Heffter-Geffeken, § 110 ; Unger, OesUrr. Privatr. i. pp. 304, 305. ^ Klliber, Europ. Volkerr. § 234, note. Eetaliation is a withdrawal, by way of reprisal, of incomplete rights. Even the new Swiss cantonal statute books, which have provided for retaliation, while they hold the principle of the legal equality of foreigners and native citizens, look upon retaliation as a measure for legislative, not judicial authority, although they give the little council (as, for instance, in Berne) power of putting it in force. See Huber, Schwdzer. Privatr. (1886) i. p. 148. ^ To juristic persons we can only attribute a domicile, but no proper nationality in the technical sense. (See the unanimous view of Laband, Staatsrecht des Deutschen Beiehs in Marquardsen' s Satidbuch des offentlichen Reehtes, ii. 1, p. 32 ; 6. Mayer, Deutsches Staatsrecht, p. 638, and Karminski, p. 20. For the opposite view, e.g. the Austrian Reichsgericht in Karminski.) Nationality postulates as its basis (of. Laband, Staatsr. des Deutschen Seichs, 2nd ed. i. § 14 oti fin.) a series of rights and duties, as to which a more careful investigation alone can show, whether they belong to juristic persons. The grant of citizenship has therefore, in general, no meaning for juristic persona, and is misleading. On the other hand, a juristic person may be spoken of as native in the sense that it has its seat in this country, or is a part of the organism of our State. » iv. § 72. 228 bar's INTERNATIONAL LAW. [§ 104 of State, as provinces and communes. But so soon as civilisation has reached a certain pitch, juristic persons press forward on every side, compell- ing recognition even without special legislation; 3 and to such an extent does the practical necessity for them go, that they are in fact recognised, even where legislation does its best to discourage them. As a consequence, they are further removed in such cases from the operation and oversight of the law than if their existence were legally recognised. It is a necessity of human nature, which will take no denial, to combine its resources, and particularly the resources of its wealth, to attain larger and more comprehensive ends : these ends it desires to ensure for a period of future time, by the device of allowing those persons who have the control of the wealth devoted to the attainment of these ends to have no power of action recognised by law, except within the limits necessary for attaining those epds ; while, on the other hand, new persons are constantly summoned to the management of the common stock within the same limits, in room of those who retire or die. Therefore, although it would be a serious matter if these so-called juristic persons were to get the upper hand, and positive legislation has often had occasion to interfere with them, still these organisations of legal activity are not to be regarded by any means as artificial, but rather as natural products of an advanced stage of activity in law and in civilisation ; if States and nations are to walk in legal community with each other, they will de facto be forced to a mutual recognition of the juristic persons that are constituted or that have grown up in the territory of their neighbours, as possible objects of legal consideration. The practice of international law gives its sanction to this necessary recognition. It may be that it is only an international usage which exists on this point,* although there is a sufficient chain of legal logic to prove the existence of a rule of law. Laurent denies this, and is of opinion that there is no proof of the assertion to this effect which I made in my former edition. But let us remember that the legal capacity of juristic persons in their own country is by no mean absolutely the same as that of individuals. A juristic person, which has the power of taking by purchase or other onerous contract, does not necessarily possess a right of succession or a capacity of taking by way of gift, while it may well be denied all rights of acquiring real property, either absolutely or for a long period. The recognition of the legal capacity of foreiga juridical persons in a general ^ See specially Gierke, Die Genossenschaftslehre und die Deutsche Beclitspreeliung, Berlin 1887, pp. 1-141. * Cf. in this sense Asser-Rivier, No. 100, p. 198 : " Ainsi la socieU civile qui a la personnal- it6 civile d'apris la loi de son siege social, conservera ce caractire en tout autre pays ; ceci decoule d'un veritable droit coutumier concemant des personnes civiles que est admis dans une grande pdrtie de l' Europe et que Von ferait peut Hre bien de transformer en droit icrit." In the limited sense in which a law of custom is asserted in the text, it exists in England and the United States: Brocher, too, Nouv. Tr. p. 101, says rightly that in the interest of general commerce a company properly formed, according to the law of its situs, should be recognised in, a foreign country so far as possible (?). • • '' § 105] CAPACITY OF JURISTIC PERSONS. 229 way does not by any means determine what the extent of this' capacity is to be. It does not by any means establish, looking to the very various limitations by which the capacity of juristic persons may be hedged, that juristic persons of another country should be placed on an equality with similar juristic persons belonging to this country, as regards the range of their legal capacity. For it may be imagined that the legislator will desire to treat them differently from those of his own country, over which he can exercise a thorough supervision, and the prosperity of which tends indirectly to the benefit of the country and its subjects.^ ^ With regard to the capacity of juridical persons to enjoy legal rights, we may refer to the paper recently published by Danieli in. J. xv. p. 17 and p. 330, " De la condition des soditis itrang^res en Italie." The result of it is — in agreement with the principles which we have already laid down — that foreign companies, and in particular companies constituted by shares, have an absolute right to make contracts in Italy, and to follow out their rights before Italian courts, and that they are only subject to the special provisions of the Italian code in so far as they have branch establishments in Italy. In this latter case, certain provisions of the Italian Commercial Code (art. 230 and art. 90), which ensure the publicity of the memorandum of association and rules of the company, must be observed on the personal responsibility of the managers of the branches. Besides this, all companies which have their seat in Italy and the bulk of their business there, although they may have been formed abroad, are subject to the provisions of the law of Italy, even as regards their memorandum of association. This last provision in Danieli's opinion goes too far, and may give rise to practical difficulties. Perhaps it would be more appropriate to have some penal provision to meet the case of the company being formed abroad in fraudem legis. Capacity to Sue and to be Sued. § 105. It is, however, indispensable that juristic persons existing in a foreign country should be allowed the right of appearing in court, either in the character of pursuers or in that of defenders.^ If this is not con- ^ Gierke, ut sup. eit. p. 153, note 2, properly points out that the treatment of foreign juristic persons stands in many respects under different rules from the treatment of individual foreigners: "Thus the German juristic person has no right, guaranteed by imperial statute, to he allowed to enter every German State. " * In support of the doctrine that in general — i.e. in so far as no special limits are assigned by statute — the legal capacity of foreign juristic persons is to be recognised. See Gunther, p. 279 ; Foelix, p. 64 ; Wachter, ii. pp. 181, 182 ; Esperson, Jour. vi. p. 340 ; Gianzana, i. No. 68, with reference to Italy ; Brocher, i. p. 186, and Weiss ut dt. They all are excellent in their adverse criticism of Laurent. See, too. Judgment of the Supreme Court at Berlin of 8th October 1849 (Entsch. xx. p. 326). ' Accordingly, both the French Executive and French jurisprudence were, in earlier days, from their respective points of view right, the former in admitting, although by special licence, foreign limited companies to trade in France, the latter, on the other hand, in conceding to such foreign companies at once the right of suing and of being sued. Cf. Lyon-Caen et Renault, Dr. e. i. No. 538, where, however, the ratio of the difference in the form of deter- mination in the two cases is not sharply enough brought out. 230 bar's international law. [§ 105 ceded, the great majority of such persons that exist in different countries would find that commerce with other countries was a perilous undertaking. By such a denial of capacity to sue and be sued, we do not merely refuse juristic persons, whose origin is in another country, all capacity to buy, sell, and acquire property here, but we refuse them the power of acquiring rights in their own country, in so far as such a power has in fact to be carried into effect through the intervention of our courts. For if we refuse them judicial protection — unless that be from caprice or for the sake of penalty, and of course we have no intention here of touching upon any question of penalties — the only ground upon which we can do so is that we shall refuse to recognise the right on which their judicial claim is founded. What would be the results of such a course ? Simply that all and every form of intercourse with juristic persons belonging to foreign countries will be cut off, or the most exorbitant measures of precaution, arrestments, and rules as to caution, will be introduced in other countries to the preju- dice of our citizens, not to mention the many possible forms of retaliation.^ Thus Foote ' notices that it can be shown that in England foreign corporations have been allowed to appear as parties, and particularly as pursuers, since the middle of the eighteenth century, in so far as they could show credentials of incorporation according to -the law of their own country; and Wharton (§§ 105 el seg.) testifies more in detail to the practice of the United States, by which foreign corporations, by means of intermediaries, may carry on business in the different States, and, indeed, may on the same conditions as native corporations of the same kind acquire by testament, and even become owners of real property. Lyou-Caen, in a paper in the Journal (xii. p. 271), which is no doubt concerned merely with commercial and manufacturing companies, enunciates the rule that the right of appearing as parties before the courts of France should be conceded to foreign companies universally ,1° without the necessity of any authorisation either legislative or in concreto, at least in suits connected with transactions which have been concluded in another country. Even a positive prohibition against carrying on business in our own country, could have no effect upon the competency of carrying before our courts transactions which were concluded abroad, and which were intended to ^ We must therefore protest most strongly against the French rule of practice (see Lyon- Caen and L. Eenault, Dr. c. ii. No. 545), by which non-authorised companies cannot de jure either sue or be sued in France. If, then, on grounds of expediency it is recognised, but entirely in odium of these associations, that they may be sued in France, such a onesided system of jurisprudence must, as in the case of the application of the 14th article of her Code Civil by Italy, riesult in this, that no judgment pronounced in France against such a non- authorised company can receive any recognition in another country. ' Jour. ix. p. 469. [The case referred to by Mr Foote is the Dutch West India Co. v. Moses, 1734, 1, Str. 612.] " On the other hand, Gerbaut, No. 13, takes up throughout the point of view of an anxious system of police. Because these foreign companies may possibly not offer the same guarantees as those which are subject to the law of France, they are not to be allowed to sue in France. I cannot see what the competency of suing has to do with guarantees for orderly trading. § 105] CAPACITY TO SUE AND BE SUED. 231 . take effect abroad, if they were on some other grounds within the juris- diction of our courts ; and in the same way a suit might competently arise out of transactions which were concluded in our own country, but, as it happened, before the date of the prohibition.!^ The Belgian Court of Cassation, in the year 1849, allowed itself to be once misled by Laurent's theory into declaring that foreign joint-stock companies have no right to sue or be sued in Belgium.12 The legislature, however, subsequently found itself compelled to take the inexorable realities of the necessities of human life ^^ under its protection, as against an abstract and perverted logic, and a Belgian statute of 1855" soon gave all commercial and manufacturing French companies legal capacity, and in particular the right of suing and being sued. A treaty with England, of 13th November 1862, has done the same for similar British companies. A Belgian statute of 18th May 1873, in its 128th article, categorically lays down, in direct contradiction to Laurent's theory, " Les sociMs anonymes et les autres associations commerciales, industrielles ou financieres constitutes et ayant leur si^ge en pays itranger, pourront /aire leurs operations et ester en justice en Belgique." Westlake, § 305,^^ says, with reference to English procedure, " there is no technical objection to suit in England by a foreign corporation or other artifi- " So, too, the very thorough and excellently reasoned judgment of the 2nd Senate of the Deutsches Eeichs-Gericht of 14th April 1882 (Dec. ii. No. 34, p. 134). The Under-Secretary of State for Elsass-Lothringen had, by a proclamation of 11th March 1881, forbidden French insurance companies to carry on business in Elsass-Lothringen, on the ground of a French law of 30th May 1857. The Landgericht at Strasburg and the Appeal Court at Colmar had decided, in a suit brought by French companies to recover premiums payable on policies issued in 1873 and 1877, that in consequence of this prohibition those companies had lost the right to appear in court. The judgment of the Imperial Court points out most sharply on what erroneous assump- tions and deductions these startling judgments of the courts below are based. On this matter, see a memorial by Schneegans, Kauifmann and Leiber, published at Strasburg 1881. ^ See, on this point, Laurent, iv. § 165. ^ Laurent, iv. § 155 ad fin. regards, in what we must describe as a most peculiar fashion, this intervention of the legislature as a recognition of the value of the legal doctrine which the statute was passed to remove. Legislatures have, however, often had to intervene against perverse judgments of supreme courts. Haus (par. 118) is also of opinion that this judgment, which asserts territorial sovereignty in a most perverse way, e.g. " atiendu que la puissance publigue de Belgiqv^ est seule capable d'appricier, au point de vue de I'ordre puilique et des intirSts beiges, si une society anonyme est utile ou dangereuse,'' contains the only true principle. See, on an analogous dispute dealt with in Italy, and a judgment, corresponding to that Belgian judgment just quoted, pronounced by the Court of Cassation at Turin on 7th March 1884, Gianzana, i. par. 63 ; and the Consultation pour la society Lyonnaise centre Ballero, edited by Danieli and revised by Clunet, Lyon-Caens, etc., Paris 1886. Gianzana and the other authors of the opinion all pronounce the views of the court at Turin to be wrong. Now the principles for the decision of such questions are those of the Italian Code of Commerce of 1882. See below, § 106. " The French Procureur-General, with good reason, expressed himself bitterly against this entirely unexpected revolution in Belgian practice by the Belgian Court of Cassation. It was however not, as Dupin thinks, the requirements of any reciprocity guaranteed by statute that gave rise to the judgment : it was merely an abstract logic, clinging closely to verbal expression. ^5 See to this effect also Foote, p. 71. •ij2 bar's INTERNATIO-NAL LAW. ' [§105 "cial person. It may sue, subject to the question whether the local law of the transaction authorised it to act in its corporate or other artificial character." ' The authority of the English judge, Mr Justice Lindley, is to the same effect," and Buchere's^^ a:uthority shows that up to the passing of the French statute of 30th May 1857,^^ which was passed to meet the -judgment of the Belgian Court of Cassation, French jurisprudence universally conceded to foreign companies apersoTia standi injudicio. An Austrian ordinance of 29th November 1865 is to this effect: "Every ' foreign joint-stock company and investment company with shares, except- ing insurance companies, is recognised in Austria ^^ as legally constituted, and is allowed to conduct its commercial business under its firm name like similar companies belonging to this country, if," etc., etc. ^^ ■ This objection might no- doubt be taken, that, whereas the law of this country requires, for the existence of juristic persons, the fulfilment of certain conditions — e.g. requires the special sanction of the Government — the same guarantee is not to be found in the case of foreign companies,^^ and we thus run a risk, in recognising the legal capacity of foreign companies and corporations, of recognising some which may, by irregular methods of trading, do our State economical injury ,^^ and of giving foreign companies' not ^^ Lindley on Company Law, pp. 909 et seg. '^ Buchere, Des actions judiciaires mercies en France par les sociitis anonymes Ura/ngires, in the Jour. ix. p. 37. ^* The words of this statute are: Art. i. "Les socUUs anonymes et les autres associations commerciales, industrielles ou financiires qui sent soumis d V autorisation du gouvernement Beige et qui I'ont obtemu, peuvent exercer tous leurs droits et ester en justice en France en se conformant aux lois de V Empire. Art. ii. " Un dicret imperial rendu en conseil d'Ftat peut appliquer d, tout autre pays le benefice de V article I." ■ As Buchere shows, this statute, an indirect result of Laurent's mistaken theory, produced a host of doubts and difficulties. (See, too, Gerbaut, § 162, who, however, defends its principle. ) The decrees sanctioned by the second article have been promulgated in favour of many States. But still some States are left out, and companies belonging to them cannot be brought before the French courts. That would plainly, however, be to the prejudice of French creditors. The somewhat bold device, therefore, is adopted that the company, as being in fact a company (association de/ait), may be sued, but cannot sue. Besides this, doubts have arisen from the circumstance that in France, and in a great number of other countries, no more special licenses are given for the establishment of joint-stock companies. This statute shows how a simple matter may be thrown into confusion by misapplied caution, and shows, also, that statutes are not always better than the rule given by practice. ^' It is doubtful whether foreign companies have in Russia the right of suing and being sued. A judgment of the Court of Cassation in 1883 proposes to give the right to those companies only, whose country has made an agreement to that effect with Russia. See Barkowski, Jour. xiv. p. 171. ''" See the declaration with reference to the mutual recognition of joint-stock companies in the German Empire and Great Britiau (Zeitschr. fur des gesannute Eandelsrecht, N.F. v. p. 132). Renaud, Des recht der Acticngesellachaften, 2nd ed. § 16, declares distinctly in favour of the legal capacity of foreign companies. '''This is Laurent's simple conclusion, viz. because the law of Belgium recognises only such companies as have royal license, and foreign :corapanies have no such license from the King^ of the Belgians, they therefore have nn existence for the Belgian judge. ^ To this effect the ratio of the judgment of thfer Belgian Court of Cassation; already mentioned, which is quoted and approved by Laurent. ■ § 1 06] CAPACITY TO CONTRACT. 233 unfrequently privileges ^^ over those of our own country, which have to satisfy more stringent conditions when they are set on foot. This argument, however, proves nothing against the admission of foreign companies as parties to suits : in this case we have nothing to do with • privileges of trade, but merely with the protection of rights already acquired and vested. Besides, it may very well be matter of dispute, which set of conditions is the more severe ; and what are we to say if we shall find two States establishing contradictory conditions ? 2* 25 jg a company, if by chance an opportunity presents itself of starting a business in some other country, with profit to that country, to be put to the trouble of fulfilling all the conditions which the law of that country requires of its own companies ? If there is any apprehension as to reckless trading by foreign companies, it would in any event be more practical to give Govern- ment the power to forbid, in exceptional cases, the companies of a particular State to carry on trade, or to forbid particular companies to do so, rather than to adopt by legislation, or to read into the law, any such general preventive measures, the operation of which would be indefinite in extent. Capacity to Contract. § 106. We must at once concede to every foreign juristic person and company the right of doing business by means of letters and telegrams, or by agents, with the citizens of this country,^* under reservation of the right ^ See judgment of the Court of Cassation at Turin, of 7th March 1884 (Jour. xii. 471), although this has in view not the capacity of suing, but the privilege of trading in Italy. But, on the other hand, see Clunet's note to it. The judgment of the Appeal Court at Genoa had leen to a different effect (Jour. xi. p. 555). 2^ See, in this sense, Weiss, p. 877. ^' As to the law which has been recognised in Germany since the statute of 18th July 1884 see Wolff (Z)« la condition des societes itrangeres en Allemagne, Jour. xiii. p. 134). According to it, such differences are of no importauce as regards trading, and the establishment of "branches in the German Empire. This must certainly be the true practical principle. Certain xotices, however, are, absolutely required to be given to the tribunal of commerce according to •German law, when a branch is established in Germany. The proper penalty to be imposed upon the agents of the company in Germany, for neglect of that provision, will be determined liy German law, without prejudice to the question whether another country would accord ■execution to the judgment imposing the penalty, or would not. ^' Foote (Jour. ix. pp. 485, 486) assures us that it is assumed in the United States that a foreign company may contract in any of the States of the Union. The provisions of the Spanish Commercial Code of 188518iB6, art. 15, are to the same effect. In Canada, as a decision of the Privy Council on 29th July 1873 determines [Chaudiere Gold Mining Co. v. Desbarats, etc., L.R. 5 P.C. 277], foreign trading companies enjoy the same rights as native ■companies. In Denmark, apart from Iceland, foreign trading companies have a direct right to sue, in which case their legality, i.e. their conformity to the law of their native State, is taken for granted, and they have also right to do business by agents, without the necessity of a license. They cannot, it is true, do business in Denmark directly, i.e. without appointing agents (statute of 2Pth December 1857). See Hindenburg (Jour. xi. p. 35). The draft of the new Portuguese Commercial Code of 1887, the work of Beirao, the minister of justice, in its 119th article concedes universally to trading companies, constituted according to foreign law, the capacity of contracting in Portugal. 234 bar's international law. [§ 106 of the State to make special prohibitions against the transaction of business of any particular kind (which may possibly cover the whole sphere of the operation of the company's undertaking), or, to put it more precisely, the right of forbidding the subjects of our State to enter into any such contracts, and of denying such contracts all effect in our country, and before our courts. This rule is favoured by the most distinct train of practice. We see every day that governments conclude financial contracts with foreign companies. How can we reconcile this fact with a denial of legal capacity to these companies ? It is plain that, if such companies set up permanent agencies and branches in this country, distinct regulations can be imposed upon them, and the new Italian Code of Commerce, in its 230th and 231st articles, contains very practical provisions for such cases. They rest upon the principle^'' that the rules, as to the publication of the articles of the company and of its prospectus, which obtain for native companies, must be observed by foreign companies also, whereas there is, very properly, nO' mention of making the articles of association fit the law of Italy .^^ If these publications, which are thought to be necessary for the protection of the public, are neglected, the correct result, which is to be inferred from the 231st article of the Italian Code of Commerce, is that the administrators and agents of the company, who have carried on its business in Italy, are declared to be personally responsible.^^ If, in addition, we do nothing to prevent the foreign companies being responsible to the full extent of the property belonging to them in this country, far better provision is made for the interests of the public, the creditors in this country, and generally a far better guarantee is taken for the observance of our law, than would be accomplished by forbidding foreign companies to enjoy any legal capacity at all in this country. If we were to proceed on this latter footing, we should not be able logically to make any claim against the property of ^'' See Guillery (Jour. x. p. 225) on the law of Belgium, since the statute of 18th May 1873, and the judgment of the Court of Ghent (8th December 1886, Jour. xiv. p. 95), reported by Dubois, on the most recent practice upon the Belgian statutes ; also Beauchet (Jour. xiv. p. 171) on the provisions of the Hungarian law as to the admission of foreign trading companies. ^ For this difference, see Vavaseur {fies societis 4trangires), Jour. ii. p. 5 ; Lefevre, Jour. ix. p. 401 ; Lyon-Caen (Des divers systimes concemant la condition legale des soeieUs itrang&res,. Jour. xii. p. 265). As regards publication of these particulars, it would often, for want oF the necessary State machinery, be impossible to observe the law of the place where the company has its principal seat ; nor can a foreign joint-stock company be required to have a certain quota of its share capital paid up, in conformity with the law of our country on this point. This view is in accordance with two judgments of the Court of Paris, of 7th May 1850 and 8th November 1865 ("Vavaseur, ut cit. p. 10), the latter having reference to the Anglo-French treaty of 1862, by which English companies are bound, "de se conformer aux lois Francises." Vavaseur, in the passage referred to, is, it is true, only discussing the question whether such shares are negotiable in France, but, if we answer this question in the affirmative, we shall be all the better able to answer the question as to carrying on business in the sense we have indicated, since the payment of capital has a much closer relation to traffic in shares than to the conduct of the ordinary business of the company. » The Portuguese draft code (§§ 120, 121) is to the same effect. § 106] CAPACITY TO CONTRACT. 235 these companies in this country, for in law they would not have any property. This difficulty is recognised by Laurent (iv. § 160), and has as matter of fact been dealt with by the French courts. Laurent remarks that the Appeal Court in Paris did, as a question of logic, come to a sound conclusion, in denying, in a judgment of 15th April 1863, the possibility of suing a foreign company in France.^* But we shall have to recognise the legal capacity of foreign juristic persons — in so far as that consists in the capacity to sue and be sued, and in the legality of their doing business by means of letters, telegrams and agents — even if juristic persons and corporations of the same kind could have no legal existence with us. Why, for instance, shall a foreign monastery not sue in this country for the performance of the prestations of a lease of a piece of land situated in another country, or why should a religious brotherhood which makes liqueurs or laces, not be able to sell these wares in our country, and raise up corresponding claims for payment which our courts must recognise ? In so far as the particular transaction in question has no object in view which our law disapproves,^^ the general object of the foreign association cannot be matter for the consideration of our courts. The true meaning of the opposite opinion would simply be that we should sit in judgment upon the domestic arrangements of the foreign State : many things may find acceptance with it, which we reject. "We might with as much justice bid our judges take into account, in an ordinary petitory action, the question whether the creditor was likely to use the sum for which he sues in a way that could be justified by moral rules. A proposal that from the point of view of international law we should in such matters draw distinctions, and treat ecclesiastical or charit- able foundations differently from commercial associations, foreign States, cities, and communes, can hardly be called anything else than fanciful. It is, besides, not at all practical, for, on the one hand, entire States with their Governments may fall absolutely under the guidance and dominion of clerical aiithority, and, on the other hand, the foreign corporation may 2" No doubt the Court of Cassation decided the opposite way, but rather because they laid stress OB the practical necessities of the case, than upon the laws of logic (19th May 1863). What are we to say of a logic that reasons thus, viz. ; " Quand mAme la sociiU difeiiileresse n'aurait pas d'existence Ugale en Fratice, elle serait nianTrwins responsable comme association de fait de ses engagements envers les Fran/Mis . . . et par suite elh est nicessairement soumise . . . (1, la juridiction des trihunaux Francois. " ^ If in our State, for instance, it were illegal, at least for our citizens, to send children to educational or boarding establishments which are managed by particular religious corpora- tions, it might no doubt be that an action by a foreign corporation of the kind against a citizen of this country, for a sum due for board for his children who had been sent there, might possibly have to be thrown out. The question would be whether the law had simply imposed a penalty as for a crime, or had pronounced that such contracts were as a matter of civil law invalid. [The Italian courts have, however, held that a " moral person '' of foreign nationality, the Congregation des dames du sacre Coeun, cannot be recognised or ajlowed to plead in the courts of Italy. No sovereign can give any such body a legal existence beyond his own territory, and as their objects must be political, economical, moral or religious, they must always have a strong national character, and therefore have no claim to recognition out of their own land. C. de Cass. Rome, 1889. J. xvii. p. 739.] 236 BA/i'S INTERNATIONAL LAW. [§ 107 attain its end by putting forward some confidential person, to whom it assigns its rights.*^ Limitations. § 107. As we have seen, it is impossible to avoid attributing to foreign juristic persons capacity to sue and to be sued, and recognising contracts ^^ which they have concluded in their own country by letters or by means of agents, and which are intended to operate there: again, apart from special prohibitions, it is a general rule that they should be held capable of contracting in our country also. But all this does not imply that we must recognise the legal capacity of foreign juristic persons in all possible relations, e.g. attribute to them the capacity of holding real property or taking by succession.^* In these cases, although legal presumptions may tend to assert equality in the eye of the law for all juristic persons,^' which serve an object recognised by all mankind, or even a religious object, if it is one that is recognised in our country also, still the State has a free hand to exclude foreign companies, it may be on the ground that it cannot exercise the same superintendence over them as over native companies. International intercourse does not in general suffer any intolerable dis- turbance by the imposition of such restrictions upon foreign juristic persons. In particular, it seems desirable that foreign companies should not de jplaiw have right to the permanent ownership of real property, and that general rules should be laid down for the establishment of branches and agencies. In this way sufficient precautions will be taken against the risks that might spring from a general recognition of the legal capacity of foreign juristic persons.^^ ^^ Cf. judgment of the tribunal of commerce of Brussels, 28tli April 1881, discussed by Alexander Braun, in Jour. ix. p. 391. This judgment was given on the subject of the trade- mark of the liq^ueurs of the Grande Chartreuse at Grenoble. ^ The rules as to the formation of a company required by the country in which the company does business, but has not its seat, cannot be applied to companies formed abroad. Judgment of the court of Lyons, 7th Jan. 1881 (Jour. viii. 159). ^ Gianzana, i. § 73, and the ratio of ajudgtneut of the Court of Cassation at Turin, of 18th Nov. 1882 cited by him (affirming the Court of Appeal at Genoa), lay down that foreign juristic persons must be held to have the capacity of taking by succession if native juristic persons of the same kind have that capacity, and that in particular the capacity of a foreign State which has been instituted as heir must be recognised. '' Cf. Wiichter, ii. p. 182. In accordance with his note 305, the practice of the .Supreme Court of Wiirtemberg gives foreign charitable institutions the privileges of the forty years' prescription. This would seem to correspond with the practice of the common law generally. As to the privilege of restitution, see in the same sense judgment of the Appeal Court at Dresden (Seuffert, i. No. 359). See, too, Gunther, p. 279. In Prussia, at least within its territory governed by the Preussisches AUgemeines Landreekt, foreign and native corporations have the like capacity of taking legacies. But see note 38 infra as to a limitation in this respect, and generally Forster, Theorie wnd Praxis dcs htutigm Preuss. Privatrechts, iv. § 251, note 46. '^ See the excellent grounds of judgment on this point given by. thp Court of Cassation in Turin, cited supra, note 34. § 10'7] LIMITATIONS ON JURISTIC PERSONS. 237 But, on the other hand, foreign establishments and associations cannot make good in our country privileges which are only accorded to them within their own : *7 rights, too, which even our own juristic persons must acquire in some particular way, are not conceded to the foreign juristic person except by special license of the government of this country .^^ Any other view would set our own establishments at a disadvantage with those of other countries. The concession of equal legal rights to foreign establishments and associations is of course also excluded if the rights in question, either by the special enactment of our own legislation or by implication from its provisions, are to be confined to juristic persons of this country. This latter is the case, for example, with the special privileges given to the Fisk.^^ It is impossible to suppose that our own subjects should have been intended to be put at a disadvantage with the Fisk of another country. An association, again, which has no validity in its own country, can never claim the rights of a juristic person in any other country. The only objects which a juristic person has in matters of private law, are, first, to make it possible to give certain individuals shares in an estate as a perpetuity on certain conditions previously arranged, or, secondly, to ensure to an indefinite number of persons the enjoyment and advantages to be ^ CJnger, p. 165. '^ Savigny, p. 161, § 365, Guthrie, p. 167, describes these limitations upon juristic persons as limitations of capacity to contract. In truth, however, they are limitations of legal capacity or status. On the important distinction between these we shall have something to say later. Savigny takes the lex domicilii as the general rule for the regulation of the capacity to contract, and thus we should have this result — which undoubtedly would oifend practical good sense — viz. that foreign ecclesiastical establishments and foundations would not be subject to the rules which we recognise against the accumulation of real property in nianu mortua. Savigny's only escape from this result is effected by the proposition — entirely unsuited to this subject — that such prohibitions rest on politico-economical grounds. Among limitations of this kind we must also reckon the requirement of a special State license, such as, for example, is laid down in the second section of the Prussian statute of 23rd February 1870, viz. : "Gifts and legacies to native or foreign corporations, or other juristic persons, require for their validity the approval to their full amount of the king or of the official nominated by a royal decree, if their value exceeds the sum of 1000 thalers." In such a case, if the legacy is in favour of a foreign corporation or foundation, a double license may possibly be required, one from the State in which the corporation or foundation has its seat, and one from the State to which the donor or the legatee belonged : see § 3 of the Prussian statute which we have cited: "A fine not exceeding 300 thalers may be imposed on . . . 2nd, any person who makes over to a foreign corporation or other juristic person a, gift or a legacy before the proper license for this purpose has been obtained." The necessary license may possibly be refused on account of the excessive accumulation of property m manu mortua or the extravagant endowment of a foundation, aud also for behoof of the natural heirs of the testator or donor, e.g. if they appear to be in want. In the former point of view, what has to be considered is the interest of the State in which the corporation has its seat, in the latter the interest of the State to which the donor or testator belongs. Such a license is necessary even for a foreign State, if acquisition by succession, or the ownership of landed property by juristic persons, is associated with such a license. It is no offence against the sovereign powers of the foreign State that such a license should be required. Cf. Gianzana, i. par. '77, and the decision of the Appeal Court at Genoa of 6th Aug. 1881, which he quotes. 2' Wachter, ii. p. 181, linger, ut cit. . he would, however, allow the churches of other countries the same privileges as ours. 238 bar's international law. [§ 108 derived from some particular thing or undertaking. As regards those of the former class, the division of the estate in the eye of the law takes place where the company has its seat ; if, then, by the law which rules there, it turns out to be invalid, the object of the association cannot as a matter of law be attained. In the latter class of cases, it is just as plain that the object of the association can as a matter of fact never be attained if the State, in which the undertaking or establishment is to be set up, does not sanction it. A foreign State that treated as a juristic person an association that was not recognised in its own country, would be treating as valid businesses which were directed to objects that were impossible either legally or physically, a result which would be inconsistent with general principles of logic.*" *^ Companies whose Operation is substantially confined to Foreign Countries. In fraudem legis ? § 108. One effect of the recognition of the legal capacity of foreign juristic persons may no doubt be, that the true business activity of a company shall for the most part belong to the territory of another State ^ than thqt in which as a matter of form it has its seat. It is possible that in this way legislative provisions for the restraint of companies may be evaded. For instance, it may be that the business of a mining company is truly carried on in State A, while the company itself is formed in State B, because it desires to be free from the conditions which State A has imposed upon the formation of such companies. Westlake (§ 306) raises this difficulty, but does not supply any solution of it. One must overlook it, unless one desires to interfere prejudicially with the beneficial expenditure of capital in other countries. A company may have very good reasons for being willing that the conduct of its business should be subject to the laws and the courts of another country, and, it may be, to the large discretionary powers of a foreign government, while it is not willing that the rights of its shareholders inter se and its whole capital should be. The weight of these reasons is, of course, specially felt where the business is carried on in countries which are uncivilised or *" Cf. Mohl, Staatsrecht, Volkerrecht und Politik, i. p. 621 : "It is easy to prove that tlie position of the members of a company is in public law conditioned by the legislation of its own country, and the treatment there accorded to it. An association, which has no legal existence in its own country, has no existence for any foreign State. ... Its circumstances in a foreign country cannot place it in any different rank from that which it really holds in its own country. ^^ It follows from what has been said that the question, whether a foreign juristic person has ceased to exist, must be determined by the foreign law which prevails at the place, where it has its seat (e.g. whether as a consequence of bankruptcy it is dissolved), E.G.I. 18th Feb. 1885 (Bolze, Praxis, par. 42, p. 10). ■•2 But the company cannot do any of the things that are proper to the seat of the company, outwith the State in which it is formed. A general meeting held in another country has been held null by the courts of the United States (Foote, Jour. ii. 485, 486). ^ 108] NOTE ON FOREIGN CORPORATIONS. 239 only partly civilised. But it is impossible here to draw the line between two classes of cases, and the dangers are not so serious, when we remember that the trade or business itself is subject to the laws of the place in which it is carried on,*^ and that the publications required by that law must take place. Public traffic in the shares and obligations of foreign companies, the basis of which is unsatisfactory, may be prohibited.** Upon the whole, however, the necessary regulations for this purpose may be left to the exchanges and chambers of commerce. It would be contradictory of our theory, if we were only to allow the scrip and shares of those foreign companies, which had been formed in accordance with the requirements of our own law, to obtain a quotation on our exchanges. On the other hand, it is very difficult, unless we are prepared to have recourse to the discretion of the police authorities — a step which is in favour in many States on the Continent of Europe, but commands, perhaps, little sympathy in England and the United States^ — to prescribe, by legislative enactment,*^ the special conditions under which foreign companies, in contradistinction to native companies, are to be allowed to carry on their trade in this country.*^ IfOTE C ON §§ 104-8. LAW AS TO FOREIGN COEPORATIONS AND COMPANIES. [" It is an established 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" (Lindley on Company Law, p. 909 ; Westlake, § 305). " There is no technical objection to suit in England by a foreign corporation or other artificial person." " We make no inquiry into the constitution of a foreign company any more than we should into the generation of an individual suing here " {jp&r Erie, C. J. in Uranley v. S.E. Ey. Co. 12 C.B.N.S. p. 70). Lindley, however, goes on to say, " as regards procedure and parties to actions, the law of the country in which the action is brought prevails : " and from this he infers that a company which has been empowered by a ^ The company therefore may be answerable to third parties, who have contracted with it at the place in which its business is carried on, in the same way as if it had been formed there. See the judgment of the tribunal of commerce of Antwerp, of 10th July 1877 (Jour. v. p. 526). *^ No such prohibition, however, is understood if the requirements of our law, which regulate our companies, are not satisfied in the case of shares in a foreign company. E.g. French practice shows that the provision of the French statute of 24th July 1867, whereby shares are not negotiable unless they are paid up to the extent of one-fourth of their value, is not applicable to foreign stocks. See judgment of the Court of Lyons of 7th Jan. 1881 (Jour, viii. p. 159), and of the Court of Chambery of 25th March 1883 (Jour. xi. p. 192), and the citations given in Jour. x. p. 521. 45 "Westlake (§ 306) seems to regard some such provisions as desirable in the law of England, to which they are unknown. In my view, however, the only practical method is the compulsory publication of the articles and the prospectus. Legislation can do nothing more without seriously interfering with international intercourse. * A company of international carriers could not well be refused leave to set up places in which to sell tickets, etc. Cf. Westlake, ut cit. 240 • BAK'S INTERNATIONAL LAW. \N0TEC. foreign or colonial Government to sue through a public officer, cannot do so in England, the privilege given to it being a mere rule of procedure, applicable only in the country of its origin, and having no power to control the procedure that may be laid down by the lex fori. The courts of England have, in the case of Bullock v. Caird (1875, L.E. 10, Q.B. 276), carried the application of the lex fori in questions affecting partnerships a step further. In that case, an action had been brought in the English courts against one member of a Scottish co-partnery, in respect of an obligation due by the co-partnery. It was pleaded for the defender that, by the law of Scotland, where a co-partnery is held to be in law a separate person, it was a condition precedent to individual liability being established, that the firm as such separate person, or the whole individual partners jointly, should have been sued, so as to constitute the debt in- proper form. The court held that this raised a mere question of procedure,' and that although the omission might have been a bar to action in the courts of Scotland, the English court, where no such rule of procedure was known, could not be bound to give effect to it. The plea was accordingly repelled. With deference to the opinion of the English court, this case seems to have been badly decided : the plea raised much more than a mere point of procedure : it involved this, viz. that the proper debtor, i.e. the co-partnery, had not been called. It is thought tliat the English court, on the principle cited from Erie, C. J. supra, were bound to accept the legal person duly created by the law of Scotland, just as they would have accepted a joint- stock company properly registered, and therefore incorporated, as a separate person from any of the shareholders. In contradiction of this English decision, we find, in the case of Muir v. Collett (1862, Ct. of Sess. Eeps. 2nd ser. xxiv. 1119), what appears to be the sound principle recognised by the Scottish courts, viz. that the law of the domicile of a partnership (in that case India), must determine the nature of its constitution, so as to settle whether it has a separate person in law, by which it shall sue and be sued. On the other hand, the jurisdiction of the English courts over companies domiciled abroad depends on whether these companies, through their property or agents, are amenable to the process of the English court. The same rules as are applicable in the case of individuals will be applicable here. " Places of business," says Lord Chancellor Lyndhurst (Carron Co. v. Maclaren, 1855, 5 CI. H. of L. 449), " may, for the purposes of jurisdiction, properly be deemed the domicile," and for these purposes his Lordship thinks there may possibly be several domiciles. Eor the limited purpose of jurisdiction there seems to be no principle against a multiplicity of domiciles. The possession of an agency in Scotland will give the Scottish courts jurisdiction over a foreign company. Mackay, Practice of the Court of Session, vol. i. p. 182. Again, it has been held that a company, although foreign in the sense that it was constituted abroad under a foreign law, audits shares are held ^OTEC] note on foreign coupon a r/ONS AND COMPANIES. 24 1 by foreigners, may yet be wound up in England, if its principal place of business be in England (Princess Eeuss v. Bos, etc., 1871, L. E. 5, E. and I. App. 176). If, however, it has merely carried on business in England through agents, without having any office there, the court will not push its jurisdiction so far (Lloyd Generale Italiano, 1885, L. R 29, Ch. Div. 219). The liabilities of members of joint-stock companies will, in England, be determined by the law of the land under which they were formed Thus, for instance, if by the law of France the corporation, and not tne share- holders who make up that corporation, are liable in damages for delicts, or quasi delicts, committed in the course of carrying on the business of the corporation, the English courts will protect a shareholder against whom, as an individual, proceedings are being taken in England (General Steam Navigation Co. v. Guillou, 1843, 11, M. and W. 877). It was at one time thought (Westlake, § 306) that a' company incorporated in one country could not carry on business in another country, so as to acquire a right to sue on contracts entered into there : it was said that such a company was trading beyond the limits under which it had been constituted, and that a company belonging to a country where the conditions of incorpora- tion were less rigid might have advantages over others constituted in countries where the law requires certain formalities and conditions to be observed, so as to ensure fair trading, or, it may be, for fiscal purposes. The Canadian courts countenanced this view; but the English courts have assumed the contrary. The high authority of Mr Justice Lindley (p. 910) is to this effect : " It is conceived that a foreign corporation can sue in this country on all 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." This may be taken to be the law of England and of Scotland. In the Circuit Court of the United States, it has been held that a company, validly constituted by the law of one State, may carry on business in another without being required to fulfil the particular conditions which the law of that other State requires of its own companies. (Att. Gen. of N.Y. Albany Law Jour, xxxvii. 371, Jour, xvii. 372.) If the law were otherwise, every company desiring to trade in a foreign country would require to be incorporated anew, and it might be on a totally new ' footing. The author 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 civilised countries safeguards of the same kind, although differing infinitely in detail, will be adopted to ensure honest dealing and the administration of justice ; and finally, the language of the conventions concluded between different powers seems at once to coincide with the 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, Q 242 B^IJ^'S INTERNATIONAL LAW. [NOTE C. the recognition of foreign corporations and their rights would be so limited as to be illusory. The powers of the corporation, the limits of its legal capacity — e.g. its capacity to hold land — must be determined by reference to a double canon, first, its powers as defined by its constitution, and second, by reference to the law of the country where it proposes to exercise its powers ; the law of its domicile will determine whether it has been validly incorporated, and what are the limits of its capacity, but it will not be allowed in another country to trade at the expense and to the disadvantage of corporations belonging to that country, because, in the country of its own domicile, legal persons are free from the restraints which the law of the country in which they propose to trade imposes upon them. The extent of the mutual recognition of foreign companies in modern times is expressed in the conventions concluded between England and Trance, 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 conventions, 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, commercial, industrial, and financial, constituted and authorised 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 country," In Germany, following out the same principle as the law of England, that the legal capacity of a legal person is, like that of individuals, to be determined by the law of the domicile, 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. Ct. cf Coin. 28th April 1877, Jour. v. 629). The grounds of this decision are precisely the same as those on which Mr Justice Lindley defends his doctrine, as stated above. A foreign company may have to find caution for expenses, unless in exceptional circumstances the court allows it to sue without doing so. In order, however, legally to establish an agency in Germany, a foreign company must obtain leave from the State in which its branch is to be established, and publish in the required form a summary of its memorandum of association, etc. Certain kinds of business, e.g. life insurance, cannot be carried on in Germany by foreign companies, except on the same conditions as those on which German companies are authorised to carry them on. A decision of the Imperial Tribunal of 14th April 1882 NOTE C] NOTE ON FOREIGN CORPORATIONS AND COMPANIES. 243 (Jour. X. p. 317) has determined that an insurance company, which has been interdicted from carrying on business in one of the States of the empire, may nevertheless sue in the German courts for premiums whicli fall due subsequently to the date of the interdict, but under a policy which had been taken out before it. In France the constitution of a foreign company will be recognised just as the majority of an individual would be, and no French shareholder will appeal successfully to the courts of his own country ta 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, Jour. iii. 363) ; 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 dc Luchet V. Cie de Chemin de Fer du Nord de I'Espagne, C. de Cass. Paris, 18th January 1876, Jour. iv. 237). So, too, a foreign company need not conform to the requirements of French law as to the subscription of capital, or as to the payment of any specified proportion of the value of , each share (Trib. corr. de la Seine, 20th June 1883, Jour. x. 521). Disputes between Frenchmen, who are shareholders in a foreign company, and that company as to calls upon shares, or as to the legality of forfeiture of shares, must go for their determination to the courts of the country in which the company has its seat (Aragon v. Soci^te de Tharsis, 28th' April 1884, Jour. xi. 520, and Banque Europc^enne v. Eumpler, 28th July 1884, Jour. xi. 403). A foreign company, however, in order to sue, carry on business or establish branches in France, must be authorised generally to do so by the French Government ; i.e. the French Government must have approved the conditions under which, in the country to which the company belongs, such companies are constituted. Unless such a general authority has been "iven, foreign companies cannot sue in France, even on contracts concluded in their own country. It may, of course, happen that a company, which has its principal office abroad, may have established 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 illusory establishment will certainly not be recognised so as to oust the penal jurisdiction of the country to which the directors belong, or to dispense with the formalities required by its law (Compagnie de Chemin de Fer du Nord et de Catalogne, C. de Paris, 2nd July 1 877, Jour. V. 274). But a mere agency or a subsidiary establishment in France, coupled with the fact that the shares are to a large extent held by French- men, will not make a company amenable to French law, so that any neglect in its constitution of the requirements of French law, v;hich in the 244 Aak'S INTERNATIONA I. LAW. [§ 108 case of a French company would involve its directors in criminal responsi- bility, 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 ofBce situated abroad, the company having been originated and incorporated abroad (Chandora v. Banque Europeenne, 10th February 1881, Trib. corr. de la Seine, Jour. viii. p. 158). Nor will the establishment of an agency in France give a company the same status as an individual acquires by residence, accompanied by Government license to reside — viz. a title to bring actions against a foreigner in a French court (Eubattino v. Kuntz & Werder, 25th Feb. 1878, Trib. comm. de Marseilles, Jour. V. 372). This latter decision is not in conflict with what has been above taken to be the law of England; a company is treated like an individual, and its right to sue is regulated according to its true nationality, and not according to its domicile. 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 with a general authorisation, just like a foreign individual, may sue a French debtor in France. Again, just as an individual, residing or trading in France, may be sued there by a French creditor, although he is not by birth or naturalisation a French subject, because it is, according to the 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 (Duche et Fils v. Eaymond et Cie., C. de Cass. Paris, 10th August 1875, Jour. iii. 459 ; Credit Industriel v. Quesnel, &c., 1881, Jour. ix. p. 424). The domicile of the foreigner will be held to be at the place in which his agency exists (Eacine v. Banque Ottomane, C. de Cass. 4th March 1885, Jour. xii. 304). In matters of title to sue and defend there is, as French jurisprudence expresses it, no distinction taken between an individual and a moral {i.e. a legal) person. The regulations as to the quotation of shares on the Bourse, and the sale and purchase of them there, which are applicable to French companies are not applicable to the shares of foreign companies (Eoges v. Soc. G^n^rale, 25th May 1883, Jour. xi. p. 192, and other cases there cited. In Italy, the position of foreign companies is regulated by the provisions of the new Code of Commerce, which came into force on 1st January 1883. Foreign companies are allowed to exercise all the powers which belong to them by their constitution, and to plead in the' Italian courts, on condition of publishing the conditions of their association and certain other particu- lars as to their constitution, and provided that the interests of Italian shareholders are sufficiently protected (Ct. of Milan, 19th September 1882, Jour. xi. 555). Their constitution is governed by the law of their place of origin. In Austria foreign companies, in order to enjoy a title to sue and defend, and to carry on their business in Austria, must obtain in each case authority from the Government, and must submit to the Government § 109] NOTE ON FOkEiGN CORPORATIONS AND COMPANIES. 245 reports of their general meetings, and two balance-sheets, one of their general business and one of the business they have done in Austria. If they desire to open branch establishments in Austria, they must appoint as their agents domiciled Austrians, approved by the Austrian Government. In Hungary, a foreign company will not be allowed to carry on business by means of a branch establishment without a license from the tribunal having jurisdiction in the place where it is to be established. No such license will be given to a company belonging to a country which does not give like privileges to Hungarian companies ; and, after the branch is established, it must submit balance-sheets, etc., as in Austria. In Belgium and Switzerland, foreign companies need no license to carry on business, or to plead in courts of law. If, however, they desire to establish branches, they must observe the same requirements as to publication of their constitution, etc., as are required of natis'^e companies. In Belgium, their articles of association and other credentials must be published in full : an abstract or summary is not accepted. In Eussia, special sanction must be obtained, before any foreign company can plead, unless it is a company belonging to a country with which Eussia has concluded treaties on the subject (Imperial Court of Cassation, 1883, Jour. xiv. 171). In Turkey, by a decree of 2oth November 1887 (Jour. xv. 438), foreign companies can only establish agencies and branches under the sanction of an Imperial irade. To obtain this sanction, the articles of the company must be produced, and when the sanction is obtained, the company must choose a legal domicile for itself. Penalties are provided for the event of any company carrying on business without having previously obtained this sanction.] APPENDIX 11. Liability to Taxation in International Intekcoukse, Necessity of Definite and Equitable Peinciples. g 109. The proper international limits of the right of taxation must be viewed as an important subject for the consideration of international law, when we consider the constant increase in the demands, which the revenue laws of different States are making upon the property and the income of individuals. But up to the present time we find only a few equitable prin- ciples timidly venturing to put themselves forward. It is very often the case that the simple principle of extending the tax to all persons and things, which it seems in any way possible to reach, is allowed to prevail, without 24(3 nAR'S INTEKNATIONAI. LAW. [§ 100 any attention being paid to the question whether so wide an extension of the liability to taxation is in accordance either with the principle of the impost itself, or with the circumstance that some other State, on the same ground, makes a like claim upon the same individual. To the complications and the frequent caprices of legislative enactments, we often find added the circumstance that the authorities of the State, in matters of this kind, do their best to limit or obstruct legal processes, and that the reasons for which administrative officers decide in this or tliat way are only to a small extent or with difficulty accessible to the public. The case of double taxation, be it avowed, or be it concealed in so far as the same tax goes under different names in different States, will in the present condition of revenue legislation very frequently occur, whatever painis may be taken to avoid a double impost. Such a double taxation does not, it is certain, give the individual any right to protest against one of the two. From a legal point of view, every State may follow out its rights, i.e. its rights within the meaning of its own legislation, so far as the limits of its jurisdiction extend.^ The only remedy that can be devised is a system of treaties, or the enactment of clauses of reciprocity in our legislation. To a certain extent, we may on equitable grounds allow taxation which has been imposed by another country upon our citizens, and to which on principle we hold that they should not have been subjected, to serve as a ground for exemption in this country.^ A tax may be intended to fall upon a person, a thing,^ or a transaction. It is obvious that, where a tax is intended to fall upon a person, that person must have some permanent relation to the State which is raising the tax. We may in the meantime refrain from determining whether that relation is to be constituted by nationality or domicile, or lastly, merely by residence for a considerable time within the State. Persons who remain only temporarily for quite a short time in the State cannot be touched by such a tax.* If taxes are meant to satisfy the necessities of the State, it cannot be asserted of persons who are only temporarily present in the State, that ' See a judgment of the Swiss federal tribunal of 24tli April 1882, Revue, xvi. p. 488. " Cf., for instance, the Prussian statute as to succession duty of 1873, § 9. ' The rule which is so often enunciated on this subject, that, in raising a tax, as a matter of principle the right belongs to the State, within whose dominions the thing happens to be, without regard to the fact whether it is moveable or immoveable — see on this subject Laurent, vii. § 251 — is a mere petitio principii, and is not at all well suited to the circumstances of modern commerce and intercourse. In Wharton (Dig. i. § 10, p. 36) we find the true rule, which is taken from the judgment of an United States court [Kirtland ■y. Hotchkiss, 100, U.S. 491], viz. ; "For the purposes of taxation, a debt has its situs at the residence of the creditor, and may there be taxed. " ^ "Taxation may no doubt be imposed, in conformity with the law of nations, by a sovereign on the property within his jurisdiction of a person who is domiciled in and owes allegiance to a foreign country. It is otherwise, however, as to a tax imposed, not on the property, but on the person of the party taxed, when elsewhere domiciled, and elsewhere a citizen. Such a decree is internationally void and .... gives a right to appeal for diplomatic intervention. Despatch of the Secretary of State for the United States of 1883, Wharton, Dig. ii. § 204, p> 514. ^1^^] PERSONAL TAXATION. 247 they derive any benefit worth mentioning from its arrangements. In any case, the benefit may be regarded as sufficiently balanced by the indirect duties levied upon necessaries, which will affect even persons who spend but a short time in the country. In addition, there are very great practical difficulties in the way of levying any considerable revenue directly from foreigners in such circumstances. Personal Taxes. (Nationality or Domicile?) § 110. Taxes, which fall directly on persons as such, will in the present day be more or less of the nature of income tax, and the first question that must be considered is whether in this matter the domicile or the nationality of the person is to rule. On principles of public law, no objection can be taken to the State taxing its citizens, who are living in a foreign country, at its own discretion. But natives who are domiciled abroad as a matter of fact derive but little benefit, so long as this domicile lasts, from the arrangements of their native country ; while, on the other hand, it must seem a peculiar privilege that foreigners who for a con- siderable time have lived in this country should go free from taxation. It seems desirable, therefore, to take the principle of domicile to regulate income tax.^ This is certainly the rule in most systems,*^ and that it should be so is perhaps to some extent accounted for by the fact that attempts to lay on and to collect income tax in a foreign country would very frequently encounter insurmountable difficulties. It might perhaps be possible for a State, with good practical results, to levy from its citizens in foreign parts a certain tax as an equivalent for the protection which it extends to its subjects abroad, and sometimes at great expense. On the other hand, in order to meet the frequent attempts which are made to evade the law in this respect, a stay of a certain duration in the country, or in some particular place, as the case may be, may be held equivalent to the acquisition of a true domicile.'' Of course, there is no justification in principle for the application by the legislature of the principles of domicile 5 See, too, Bluntschli, Volkerr. § 376. ^ The law, formerly of the North German Federation, now of the German Empire, dated 13th May 1870, in order to put an end to double taxation, adopted the principle of domicile for direct Government taxes. § 4, however, provides; "All pay, pension, or provisional allowances which German soldiers, or civil servants, or their wives or families, draw from the treasury of one of the federated States, are only to be taxed within the State which has to make the payment." § 3 appoints the lex rei sitce for landed property, and the exercise of trade or manufacture. The statute only gets rid of double taxation in the relations of the German Federated States to each other. ^ See Wharton, Dig. ii. § 204, on the point, that, in so far as public law is concerned, there is no objection to the taxation of foreigners who have resided a considerable time in the country, or who carry on business there, etc. But forced loans for the purpose of carrying on war against a foreign power must not be raised from foreigners. In general, however, the object of the taxation, e.;f. the upkeep of schools, is of no importance. See despatch of the Secretary of State for the United States, of 1885, Wharton, Dig. ii. p. 515. 248 bar's internatiomal law. [| 111 and of nationality as well, as we find, for instance, in the Prussian statute of 1st May 1851, § 16, which, to a certain extent, is still in force. Eetuens from Land. § 111. We must however recognise that, in the system of taxation generally, the person is not so much in view as his property. Although, therefore, as a matter of form, it is the person who is taxed, in truth it is always his property which has to bear it, which in a certain way. has concentrated itself in liim, and in this concentrated form, for instance, in the hands of a rich man, is seen to be an object which is particularly well able to give a good return. When we look at the matter in this way, we see, however, that one person may unite in himself several centres or masses of property. In so far as the personal enjoyment of them is con- cerned, the returns from these various masses of property are united in the same person, but their external appearance is that of complete independence one of the other. This happens, for instance, when a man owns lands, manufactories, or commercial establishments, in different countries. It seems in such a case fair that the revenue regulations should deal with these various masses of property as independent properties, and all the more so that, to a certain extent, the tax may be regarded as an equivalent for the protection which the State affords to the property, and that there is always a possibility that foreigners may possess in any one State a large number of landed estates, and masses of property of various kinds. In the latter case, if these were not each regarded as an independent whole, the State would have to go without a considerable share of the income tax arising from something produced on its own soil, and protected by its own laws and polity. We may also maintain, that in the domain of the law of taxation, we should be justified in assuming the possibility of a plurality of domiciles, or rather of a partial domicile, and all the more because the State, in freely conceding to foreigners the power of acquiring property in this country, has the better reason for securing absolutely for itself some share in the income that comes from the property that belongs to this country, as a fund for taxation. The State in the territory of which these masses of property are situated has, therefore, primarily the right of levying an income tax upon them. The State in which the person is really domiciled must give way, and can only raise an income tax from him, in so far as the income tax, at the rate at which it levies it generally, would exceed what has been paid to the foreign Government, if the person in question had his whole property in the State of the true domicile. On the other hand, however, the State in which a person has landed estate, etc., can only levy from him income tax upon the property which is in its own territory, and not upon his whole property. There may be, of course, something to say, as a matter of practical convenience, for leaving a trifling property in this country belonging to a foreigner free from taxation unless 8 112] TAXES ON- REAL PROPERTY. 249 It exceeds a specified value, and for disregarding absolutely insignificant differences between the income taxes of the two countries.^ Taxes on Eeal Property. I 112. The so-called land tax (Grund-Steiier), and in general all taxation of landed property, houses, mines, etc., may in the same way be conceived as a method of taxing the income of a person. But in their legal form these imposts are seen to be taxes laid upon actually existing things. In this matter we have no concern with the nationality or the domicile of the person, and as these taxes, on account of the difficulties in the details of their imposition, generally assume a more or less stable character, their capitalised value is generally found to form in economics a deduction from the price at which real property is sold or bought, although that value may be no better than an approximation. It is right, therefore, that the amount of a land tax raised abroad, provided it has anything of a stable character, should not be taken into account as if it were so much income tax already paid to another country. This is the case e.g. in Prussia, even as regards land tax and buildings tax in Prussia itself. It is also probably the case with other taxes on specified objects, e.g. articles of luxury, or to speali accurately, on the possession of such articles, that there is in the background an intention of affecting by that means the higher incomes of individuals : and it is even possible, by the multipli- cation of such special taxes on specified objects, to find ia substitute for a general income tax. But the question cannot be decided by reference to any such remote intention. The tax hits native and foreign persons alike, so soon as their property within the territory takes the shape described in the statute.^ We can pay no heed to the plea that, viewed in the light of absolute justice, persons who are domiciled in State A, but own a number of taxable subjects in State B, may be oppressed, if State B taxes income by this means, while State A levies its tax upon income in the shape of a general income tax. If a system of taxation, which shall satisfy all the demands of ideal justice, must even within one and the same State be described as a pious aspiration, still less can we look for an international treatment of liability to taxation which shall completely answer our ideas of justice. All the remedy we can attain is one that will alleviate the broader forms of unequal and double taxation. Taxes which affect transmissions of property as such, and the conduct of 8 See the Prussian statute of 1st May 1851, § 18 : " Foreigners who own landed property in this country are, in so far as it collectively yields an income of more than 1000 thalers, bound in respect of this sum in payment of the scheduled income tax. The same rule applies to foreigners who own manufacturing or trading establishments in this country, or have a share in such establishments." . . . § 67. " Prussian citizens are to be free of income tax in respect of income from landed property belonging to them in another country, if they show that they are liable to a taxation of a similar nature in respect of that property in the foreign country. " Cf. art. ii. (13) of the Italian statute of 24th Aug, 1877, and the comments of Esperson, Jour. vi. p. 346. 250 bar's international law. [§ 118 business,^" afford little material for questions of international law, except perhaps as regards certain equitable considerations, principally in inter- course upon the frontier, in which the principle of reciprocity ought to prevail. Stamp Duties. § 113. In the matter of stamp duties,'-^ a distinction must in truth be taken between cases in which the object is to affect the transmission of an asset of property from one hand to another, and those in which the conclusion of the bargain is the thing which it is intended to touch. In the former cases, the lex rci sitae would necessarily be applied to immoveables, and the State in which the immoveable thing is situated would be entitled to levy the duty.^^ In the case of bargains, the object of which is the payment of a specified sum of money or, generally, the delivery of fungibles, that State in which the stipulated place of payment or delivery is situated would seem to be entitled to the duty.13 In the latter class of cases, the State in which the conclusion of the bargain took place, would raise the duty according to its own laws : as regards moveables, this may as a rule be assumed to be the real state of the law, even although as a matter of principle the duty may have been intended to fall upon the actual transmission of the property, because moveables have not as a rule such a clearly defined situs, that the revenue laws can with certainty attach themselves to it. But exceptions may occur, e.g. in refer- ence to goods under official custody, and the example of the statute of tlie German Empire, of 29th May 1885, as to the levying of stamp duties, shows, in the 6th section, that in such matters regard may even be had to the place of residence of the contracting parties. i* If the legisla- '» See a judgment of the Belgian Court of Jan. 1885 (Jour, xiv. p. 220), as to the taxation of foreign insurance companies in Belgium, according to the statutes of 30th July 1881 and 14th March 1385. ^' As to English practice, see Foote, pp. 283-287. " The parties will, no douht, if the dnty is at all serious, try to conclude their bargains in the State in which the immoveable thing is situated, and so render the question of no l)ractical importance. " § 1 of the German statute, of 10th June 1869, on the stamp duty on bills, follows this principle: "These are exempted from the stamp duty : iirst, bills drawn abroad upon some one who is abroad, and payable abroad ; second, those which are drawn iu this country upon some one abroad, and are payable only abroad on sight, or within ten days after date at the latest, provided that they are remitted abroad directly by the drawer. " ' ' The regular duty must be paid upon all transactions of the kind which are concluded in this country. " "Transactions concluded abroad are liable to the duty if both parties reside in this country : if only one of them does so, only one-half of the amount of the duty has to be paid. In the case of mercantile firms, the question of residence is determined by the situs of the trading establishment which has concluded the transaction." Transactions, too, which have taken place by means of correspondence, either by letter or by telegram, between a place iu this country and a place abroad, are held to have been con- cluded abroad, cf. § 9 : "The obligation to pay the duty falls primarily, (1) if the transaction IS concluded through an agent who lives iu this country, on the agent ; otherwise, (2) if only one of the parties lives in this country, upon him." These provisions appear to be sound in international relations, and to comply with equitable conditions in so far as taxes laid upon transactions on exchange are concerned. ll'"^] STAMP DUTIES. 251 ture 15 in this matter frequently attempts to bring both the formal conclusion of the bargain and its actual performance in fact alike within the sweep of the tax, and so makes what is truly the leading idea of the impost give place to its formal expression — the object being to proceed with as much safety as possible, and not to be set at a disadvantage with foreign countries, — individuals have in such a case full right to adhere to the formal expression of the statute. To do violence to the meaning of the legislature which is at the bottom of the statute that has been enacted, is by no means such a transgression of the statute as can involve a penalty. For instance, if the parties, to avoid the heavy duty which State A has laid upon the con- clusion of transactions, betake themselves to State B, and conclude their bargain there, that is not in truth an act in fraudem legis. It may be that the intention which lies at the root of the statute is to tax transactions which are to come into operation in the country which passed the statute. But what the legislator has done is to take, for some collateral reason or other, the conclusion of the bargain in his own country as the determinant fact.^"^ To speak of defrauding the law would, therefore, be quite wrong. If that were to be so, we should have to sanction a more liberal interpretation of such revenue statutes in favour of the public (which would perhaps be more correct), and, in consequence, refrain from taxing any transactions, which were by accident concluded in this country, but were intended to have their operation or to be carried out in another country.^'' It would, besides, be quite right to take a distinction between stamps for the taxation of trade and the much smaller stamps necessary for sanctioning the production of papers before some official. A contract concluded abroad must be exempt from the former, unless in its nature it is intended to have its primary operation in this country. The latter kind of stamp, however, from which a contract, concluded in this country and already stamped, would be free, will affect foreign contracts which are produced in this country .^^ ^^ Legal systems on this matter remind us not uncommonly, as regards international inter- course, to some degree of the usages of the Middle Ages as to tolls, in which there was no idea of any economic or equitable principles, but all tliat was thought of was as extensive a system of robbery and exaction as possible, against which commerce struggled with all conceivable resources of evasion. 18 A' judgment of the Appeal Court at Milan, of 19th March 1885 (Jour. xiv. 241), subjects to the graduated tax on registration, contracts of copartnery or association concluded abroad, if they are to be founded on in Italy. 17 See judgment of the 3rd Senate (Civil) of the German Imperial Court of 22nd Feb. 1881 (Dec. iv. p. 246): "As the question relates to a deed .stamp, and a deed becomes liable to stamp duty, according to the stamp laws of Prussia, when it is completed by the subscription of both parties, and not till then, the law which decides as to the liability for stamp duty is the law of the place where the last subscription took place, where, in short, the deed as a stampable deed came into being." The provisions of the new Imperial Stamp Statute, cited in note 14, are substantially more sound and just. [But see Jour. xvi. p. 827, for a report of a decision by the Court of Cassation that th e Ux. ret sitce will determine whether an asset of property (in this case a concession for mineral workings) is or is not moveable, in a question as to the duty to be imposed upon a transmission of that asset carried out in France.] 18 The law may, no doubt, by express enactment, affect bargains which are intended to operate in this country or to be founded on liere in some particular way {e.g. by being produced 252 BAR'S INTERNATIONAL LAW. [§11^ Succession Duties. § 114. The subject of succession duty, which at the present day is often a matter of great importance, deserves separate treatment.^^ It may be figured as an equivalent for the protection extended by the State to the transmission of the right of the predecessor to his heirs or legatees.^'' But this conception, the result of which would be to find that State, in whose territory each asset of the succession was situated, entitled to the duty, would be satisfied by a comparatively trifling payment. It could never justify a payment of a high percentage, and indeed not even of a percentage at all, in the case of a large succession ; and again, it would never be reconciled with the graduated scale of duty that is exacted, according as the heir or legatee is closely or distantly related to the deceased. Another possible way of looking at the duty is to regard it as a recompense for the trouble of the officials who have to regulate the succession. In that case the lex fori would rule, and that State would be entitled to the duty, whose officials undertook the regulation of the succession. But this conception, too, fails if the duty is considerable, or if it is graduated. The only thing left is that any considerable succession duty should be regarded as being either an accumulated income tax, or as a joint right of succession belonging to the commonwealth, which presses especially heavily upon distant relations of the deceased, or upon persons who are not related to him at all. It is not at all inconsistent with the notion of an accumulated income tax, that at the same time a yearly income tax is being raised from the property of the living, for formidable difficulties may be urged against an unduly heavy tax of the latter description, whereas the postponed levy of it on the occasion of the opening of a succession, and in the guise of a succession to public officers or to notaries). Of. judgment of the Court at Pontoise, of 13th March 1879 (Jour. vi. p. 391). The Prussian stamp law of 7th May 1882, § 12, subsec. 2 ad fin., provides ; ' ' If natives of this country have concluded abroad a bargain relating to an object that is in this country which is liable to stamp duty, they must, within fourteen days after their return, take out and pay for the appropriate stamped documents. " On this latter provision, see the judg- ment of the 3rd Senate of the Imperial Tribunal of 21st Feb, 1884 (Dec. xi. No. 54). But it is too large a, step to declare, as a judgment of the French Court of Cassation of 8th May 1882 (Jour. ix. p. 524) does, that a legal document executed abroad is liable to stamp duty, if it is only to be used as a voucher for the accounts of a joint-stock company, and is thus coucerned with nothing beyond the internal management of that company. By a decision of the Court of Cassation, of 5th Feb. 1884 (Jour. xi. p. 180), the French duty on insurance policies must be paid upon policies entered into by French companies abroad. ^* What is true of succession duty must hold for duties upon large donations. Otherwise, by means of donations, a man might evade payment of all duties on succession (see the Prussian statute of 30th Jlay 1873, § 4). '^ The English system makes a very sound distinction between the different points of view. " Probate Duty" is the duty paid for the legal protection which the Government gives to the executor. In this matter, the domicile of the deceased is of no consequence, but it is the local situation of the estate in question which has to be ingathered under judicial authority that decides. Accordingly, the duty is levied on the whole corporeal moveables of the succession which, at the date of death, were in England, including documents of debt payable to bearer, and on all claiuis which must be prosecuted in England. See Westlake, §§ 111 et seq. § 1141 SUCCESSION DUTIES. 253 duty, will be less felt, and is more easily managed. If it is regarded as a postponed income tax, the State in whose dominions the deceased was domiciled will be entitled to levy it, putting aside those items of property which, in a question of income tax, also follow the lex rei sitm}'^ ^^ jf we adopt the notion of a joint right of succession belonging to the fisk, it will be more natural to look upon the State to which the deceased belonged by nationality in the technical sense, as entitled to levy the tax, and it would also be the law of this State that would determine the rate of duty. But these two conceptions cannot be sharply separated from each other. Even in the case of the annual income tax, this point of view may be recognised as having some influence, viz. the view that the commonwealth thereby to a certain extent proclaims that it is entitled to share the enjoyment of the fruits of the incomes of private citizens, although it does not claim the right within the meaning of many of our modern economists, " corriger les fortunes," i.e. to regulate the amount of the incomes of private individuals. That descendants of the deceased should be free of all duty, or that his near relations should be more lightly taxed, might then be looked upon as an apparently equitable modification in the increased severity of the imposition of postponed income tax in the shape of succession duty. Perhaps, then, the best course for international law to take, is an inter- mediate course which can, it is true, only be adopted under the authority of treaties.^ Let that State to which the deceased belonged by nationality, 21 Thus the Prussian law of 30th May 1873, § 9, quite soundly enacts : " Landed estates and superiorities situated heyond the territory do not belong to the estate that is liable to duty." § 10. "Succession duty is to be levied upon the succession to landed estate, superiorities, or beneficial interests in lands situated in this country, without distinction as to whether the deceased is a native or a foreigner, or whether he had his residence in this country or not. Other estate in this country belonging to a person deceased, who at the date of his death was a foreigner, is not liable to duty, if the State to which it falls to be sent takes a similar course with regard to estate left by citizens of this country." See, too, 0. Bacher, Die deutsehen Erhschafts-u Sehenkungssteuem, Leipzig 1886, p. 202. In the year 1882, the French Government was successful in resisting the claim of the Canton Waadt, to take into computation for the purposes of their succession duty, in the case of a person who had died in the canton, immoveable property situated in France. (Seethe report of the French Direction ginirale de I'enregistrement given in Jour. ix. p. 607.) In Louisiana, for the purposes of succession duty, estates which are situated in different States are regarded as separate properties (.lour. iii. pp. 131, 132). According to a decision of the Civil Court of Mexico, of 20th September 1875 (Jour. iii. p. 225), securities over foreign estates are not reckoned for the purposes of the Mexican succession duty. ^ If the fisk of the country where the assets are situated is held to be entitled to levy succession duty on immoveables, as a consequence the lex rei sitce must be the sole judge of whether a relationship by adoption is a ground for total or partial exemption ; and if the lex rei sitce knows nothing of the institute of adoption, then in a question of exemption adoption cannot be placed on a parity with natural relationship, although by the personal law of the deceased, or his heirs, they stand on an equal footing. So, too, Lehr, Jour. ix. p. 291, and judgment of the Swiss Federal Tribunal, of 16th January 1866, Jour. xiv. p. 376. ^ The conflict of laws, as a matter of fact, not unfrequently results in double duty being paid. Martin (Jour. vi. pp. 126, 127) points out this hardship, and decides for the principle of domicile. In Prussia, Saxony, and Baden, nationality is the rule, domicile in Hamburg and Mecklenburg-Schwerin. See Bacher, p. 89, on the different German States (Prussian statute of 30th May 1873, §§9 and 10). 2 54 BAR'S INTERNATIONAL LAW. [§11^ be, as a matter of principle, declared to be entitled to levy the succession duty, but let the State of the deceased's domicile ^* have a preferable right if the deceased has lived a considerable time, say five years, continuously there, reserving, of course, the competency of the State in which immoveable property is situated. That moveables situated in a foreign country should be exempt from the tax which is imposed by the law of the domicile, is unreasonable. It is a mistake to discover, in the taxation of these moveables, an invasion of the sovereign rights of the State in which they happen to be. We are not here dealing with a tax, which affects the objects as such, but rather with a tax which is laid upon an imaginary unity of property according to its value. Although legal systems used to pay more attention to the accidental situs of the assets, in recent times the opposite, and in our opinion the correct, theory is making itself more and more felt, viz. that moveables which are in a foreign country should be reckoned as part of the taxable estate.^^ The French statute of 1871 takes up this position in reference to claims of debt belonging to the succession, while the Italian statute of 1866 directs its attention to the place where the claim is payable.^^ But the French law is plainly a onesided law in favour of the fisk, in respect that it holds moveable property subject to the French succession -^ 111 France, by the statute of 23rd August 1871, § 4, the actual domicile rules ; the French fisk will draw its "droits da mutation " from the succession of a foreigner deceased, even if the foreigner has not had formal authority for establishing his domicile in France. In this case, the duty is leviable from all foreign assets, and even upon simple debts that are payable abroad , which belong to the succession ; it is not, however, leviable upon corporeal articles tliat are in a foreign country. Before the statute of 1871, the foreign assets were in such a case not liable to the French duty, in accordance with the maxim, " Hn matiire d'impot la loi n'a d'empire que sur le territoirc qu'elle rigit." (See Jour. v. p. 374, vi. p. 305, vi. p. 476, and xi. pp. 72, 73. ) The question whether a claim of debt belongs to this country or to some other, is not an easy one to solve, and in our opinion cannot be solved except arbitrarily. (See on this subject the sketch by a French financial officer in Jour. iii. p. 258.) See, too, Lehr in Jour. X. p. 13, who rightly criticises the French system as illogical. One must choose, according to him, between the German system (the home of the deceased, or of the creditor, as the case may be), and the system which makes the situs of the asset, the residence of the debtor, the rule. A combination of the two systems, he thinks, would be unjust, and would necessarily involve double taxation. He himself declares in favour of the lex rei sitae. But in no case should a mere residence, as distinguished from domicile, furnish a ground for levying succession duty. The French "droits de succession " have, since a decision of the administration of 1883, been levied upon policies of life assurance, paid by French companies upon contracts made abroad, notwithstanding that the company may have subjected itself to the jurisdiction of the foreign court in the matter, because the real security for the transaction is in France (Jour. xi. p. 276). "^ See Jour. iii. p. 258. The German States, perhaps universally, recognise that moveable property situated in them, but belonging to a foreigner, is exempt from duty, on condition always of reciprocity. (Cf. Bacher, p. 90.) To levyj duty on moveable property of domiciled foreigners situated abroad will de facto, as a rule, prove illusory. '^' On the Italian statute, see Jour. vi. p. 302, and the Court of Cassation at Eome of ,22nd Jan. 1877, there reported. A legacy laid upon the whole estate of the deceased must, according to the sound view, pay duty to the fisk of the country where the assets are situated in proportion to the value of these assets as compared with the whole estate. (Cf. decision of the Court of Cassation at Rome, 25th Sept. 1886, Jour. xiv. p. 291, and Clunet at the same place. ) 115] TAXATION OF JURISTIC PERSONS. 255 duty, provided that it can be considered as sitiiated in France.^^ although tlie succession itself is not subject to the law of France. The English system 28 levies legacy duty upon the vs^hole moveable estate left by a person domiciled in England, wherever it is situated, but, on the other hand, does not levy it upon the moveable estate in England of a domiciled foreigner. Succession duty, again, is an impost upon property settled by means of a trust, and this affects property which is in England without reference to the domicile of the settler, the temporary owner or the successor. Taxation of Juristic Persons. § 115. One special question, which in the present day is of great importance, is the taxation of juristic persons. It cannot admit of doubt that these persons must as much as ordinary individuals j)ay property taxes, taxes on manufactures, and stamp duties, on account of their different transactions. On the other hand, juristic persons have no real income for their own enjoyment. Their income does not in truth benefit themselves, but the individuals of which they are made up. The juristic persons are so far mere conduit pipes. The reasonable course, therefore, would be not to subject them to an income tax, or rather to take the income of juristic persons into account only in so far as it appears in the income of different individuals as part of their income, or to credit the individual in his income tax account with the amount which he has already paid as a partner of the juristic person, i.e. to leave alone the income which he draws as sucli partner.^^ In fact, what difference can it make to this question whether twenty people carry on a trade as simple socii or as shareholders ? ^^ It "^ As to the way in which this is worked out in France, see Jour. vi. p. 476. 28 Cf. Phillimore, iv. § 879, Wharton, §§ 80 and 643, and the accurate exposition in Westlake, §§ 114 et seq. [The last-named author makes the character of the settlement .ns a British settlement, and not the situation of the property, the test for succession duty, §§ 107, 108.] ^ Ad. Wagner in Schbnberg's Eandbuch d. polit. Oekonomie, 2nd ed. ii. p. 307, recognises that the simple extension of income tax to juristic persons, and in particular to joint-stock companies, results in a douhle taxation. It was particularly on this gi'ound that a bill, which aimed at the extension of income tax to joint-stock and investment companies, was in 1884 thrown out by the Prussian Abgeordnetenhans. *' In spite of the words of the third section of the German Imperial Statute to do away with double taxation (13th May 1870), the German Imperial Court (Sen. i.) on 11th Feb. 1885 (Seufl'ert, 40, No. 210, see, too, to the same effect, the criminal Senate, iii. 26th Feb. 1883, Entscli. in Strafsaclien, viii. p. 132) held that the income of a person consisting of dividends miglit be taken into account for income tax at his domicile, although the income of the juristic person had already been subjected to income tax at the place at which it had its seat or carried on its trade. The words of the statute are : " Landed property or a going business, and the income resulting from such sources, can only be taxed by that State in which the property is situated, or the business carried on." The judgment does not overlook the fact that in truth there will be a double taxation; on the one hand, however, it takes up the technical view that in the eye of the law the juristic person and the shareholder are distinct legal personalities, and, in tlio second place, it proceeds upon the object which the statute was aimed at, and the preliminary proceedings before it was passed. Result : a rich man, who is the sole owner of a manufactory 256 bar's international law. [§ 116 will not be right to affect juristic persons by an income tax except in so far as the lex rei sitm is taken as a basis for its imposition. The taxation of juristic persons is on principle only defensible in so far as the taxation is regarded as an impost on production, or on particular objects, or on trade. But then taxation of that kind is no proper income tax. If, however, we find that many legal systems, even when they are dealing with the concerns of their own country alone, frequently impose a double tax on income, in so far as it comes to the individual through the medium of a juristic person,^! we need not wonder that, when international affairs are in question, individuals are often forced to pay twice over, that the fisk may not be prejudiced.^^ Duties on Coupons. § 116. Seeing that in practice so much confusion prevails between taxes on production or returns, and taxes on income, there is some justification for holding juristic persons liable in income tax, or, as the case may be, holders of shares liable to income tax under the head of a tax upon their coupons, without heed to the question whether the person who draws the income from coupons is liable himself in income tax in respect of this. The shareholder does, however, own indirectly an asset in the country which yields a return. On the other hand, it is a plain injustice to exact a coupon tax upon debentures, however much in vogue that mode of taxation may be at the present time. For by such a tax persons are affected, who seem strictly not to be liable to income tax in this country, either on the ground of nationality or of domicile. There is in the German State A, will pay no tax upon his income from it in the German State B, in which he is domiciled : a poor widow, who owns a couple of shares in a joint-stock undertaking in State B, must pay over again in State B, in which she resides, (The judgment of the old Supreme Court of Appeal at Liibeck, on 31st Oct. 1874, was to the opposite effect, and in my opinion sounder. See Seuffert, 37, No. 33.) ^^ For instance, in Prussia there is a double tax of the kind in regard to the net returns of all railways used for public traffic. (Of. statute of 16th March 1867.) No doubt this tax may also be regarded as a tax upon trade. 2^ The English income tax is in truth a kind of produce tax, which attaches to the income at its very source, being levied on the product itself. The person who receives the income which has thus paid the tax at its source has not to pay again. Therefore it is entirely right that the income of juristic persoiis which are domiciled abroad should be subject to income tax in England, but only in so far as the income has been made in England. (On this subject, and on the method of computation, see Foote, Jour. ix. p. 481.) On the other hand, the Queen's Bench Division decided (Jour. x. p. 199 ; Erichsen v. Last, 23rd March 1881, L.'R. 8, Q. B. Div. 414) that a company domiciled abroad must pay income tax for telegraphic dues, raised in England, although these dues were received for submarine cables, and not for cables actually situated in England, and a company domiciled in England must pay the tax upon income made abroad (see Cesena Sulphur Co. v. Nicholson, 1876, L. R. 1 Ex. D. 428 ; "Westlake, Rev. viii. p. 481). Such an impost goes altogether beyond the limits of a produce tax. Lately the Queen's Bench has found that foreign public trading companies are liable to income tax, in so far as they carry on business in England by means of agents domiciled there [Gilbertson v. Fergusson, 1881, L.U. 7, Q. B. Div. 562. Werle & Co. v. Colquhoun, 1888, L. R. 20, Q, B. D. 753]. See the communication by Thomas Barclay to the Economiste Francois, of 2nd June 1888, 116] TAXATION OP COUPONS. 2S7 a certain semblance of the creditor having in his debtor a profit-yielding subject. But this is a mere semblance. The true profit-yielding subject is that which the debtor has constructed out of the borrowed capital, be it a railway, a manufactory, or the orderly and secure constitution of the State itself, in so far as the money may have been borrowed by the State to meet its own general requirements. But this actual subject is already liable to taxation, and is taxed. To tax the creditor, without considering whether he is in any true sense personally liable to income tax, and is therefore in a position to credit himself in his income tax account with the amount already paid upon his debenture, is an arbitrary proceeding,^^ which had its origin in the practice of States, which under pressure of financial difficulties sought in this way to be rid of a part of their indebtedness. Its material unfairness betrays itself in the express undertaking now so often given to State creditors, as well as to creditors of companies, that the payment of interest shall be free from all such duties. The taxation of coupons of joint-stock undertakings^* does not stand altogether in the same position, because one who holds a share in an undertaking, which has its situs abroad, may expect higher returns some day, if the circumstances of the country improve, while the creditor can never look for more than the guaranteed interest. Those States, however, which have had recourse to such coupon taxes will have, as matter of fact, to make good the tax in the case of future loans, which are not expressly declared to be free from the tax, by giving their creditors some other more favourable conditions. The State, besides, should not tax foreign creditors of debtors of its own country, e.g. corporations, and in particular railway companies, any more than it should tax its own foreign creditors. It is an entirely different question whether the creditor has action against his debtor for the full amount of his coupons, if the State in which the latter — a railway or other joint-stock company — is domiciled, lays a duty upon the coupons of the company, draws the duty directly from the company, giving it a right, all of course in a way authorised by statute, to deduct the amount of the tax in settling with its creditors. As a practical matter, this question can only be raised if it be possible for the creditor to ** Ad. Wagner in Schbnberg's Haiidbuch d. poUiischen Oekonomie, 2nd ed. ii. p. 267.. maintains that there is no injustice in raising taxation upon coupons from foreign State creditors, because the payment of interest rests upon considerations of private law, the taxation upon a title of public law, the right of the State to tax. But wo cannot make distinctions of this kind. All State credit rests upon the faith that the State will not unfairly make use of its rights of legislation as against the title which private law gives to the creditors in the contract of loan, and as against a foreign creditor even the State has no superemiuent right. Wagner is not, however, blind to the serious considerations of political economy which may be urged against a coupon tax which shall affect foreign creditors. A considerable tax of that kind is simply a partial repudiation of the State debt. That, under certain circumstances, a "commercial transaction" may be made out of such a thing, proves of course nothing as to the justice of the rule we have stated. •^ Railway preference shares with a iixed rate of interest are debentures ; preferential stocka, on the other hand, are shares which to a certain extent enjoy an advantage in the division of the net drawings. R ^58 £ar\s international law. [| 11-6 find a competent court in another State, e.g. where the company has promised to cash the coupons, i.e. specially undertaken to pay. It does not follow that, although the creditor has suffered a material injustice, he may not be obliged formally to acquiesce in it. The question rather is, By what law is the obligation to be tested ? In a judgment of the 6th Civil Chamber of the Landgericht at Berlin, on 25th September 1887,^^ in the matter of Ottermann against the Eussian Naphtha Company, Nobel Brothers, this was the point that was made prominent. In our view it is certain that, by fixing a place of payment in some other country, it was not meant to be inferred that the debtor submitted himself in each and every respect to the law of the place of payment. The judgment referred to is to the opppsite effect, and it notes that in such cases foreign capitalists are expressly enticed to take part in the loan, by the exclusion of the operation of the law of the debtor's country, implied in the selection of a place of payment or performance within the legal domain of the creditor. It is not, however, practicable to withdraw at will an obligation, which really belongs to a particular territory, from that territory for all effects and purposes, and to save it from the operation of the legal system which prevails there. A judgment of condemnation, pronounced by the court of the country where payment is to be made, will in many cases be a brutuni fulmen. On this subject, we may notice the interesting judgment of the Ger. Imp. Ct. (i.). of 21st June 1888 (Dec. xxii. No. 4, p. 19), in the case of Otter- mann against the Eussian Naphtha Production Company. The grounds of decision, in conformity with the principles which we have just expounded, proceed on the consideration that a duty on coupons cannot be justified as against foreign creditors upon the footing of an income tax. But the judges lay down, at the same time, what I think a dangerous doctrine, viz. they make the legal possibility of imposing a tax substantially dependent on whether or not the State possesses the power of levying it. I hold that it is inadmissible so to identify right and might : it would justify any caprice you like to imagine. The inference which they draw from that doctrine in the particular case is, that, as the place of payment was within the jurisdic- tion of the German Empire, the Eussian Government ceased to have the power, and the defenders' company must be found liable in full payment, as indeed it was. T should have more favour for a ground of judgment of which there are glimpses or indications in the exposition of the grounds on which the court proceeded, viz. that duties of this kind subsequently imposed on the creditor must be regarded as inconsistent with bmia fides, and unworthy of international recognition. But, see a previous judgment of the same court, on 4th October 1882 (Dec. ix. No. 2, p. 3), in which, following the foreign law (Austrian) which was there in question, • the deduction in question was declared unlawful in relation to the foreign creditors of a private company. (See below, the discussion of the subject of payment in connection with the law of obligations.) '" Affirmed recently on an appeal by the Kanimer Gericlit. NOTE Z>.] TAXATION OF FOREIGNERS. 259 NOTE D. ON §§ 109-116. Liability of Foreigners and Foreign Companies to Taxation. [The imposition of income tax in Great Britain is regulated by the Property and Income Tax Act of 1853 (16 and 17 Vict. c. 34). By § 2, schedule D, of that Act, duty is payable "for and in respect of the annual profits or gains arising or accruing to any person residing in the United Kingdom, from any profession, trade, employment or vocation, whether the same shall be respectively carried on in the United Kingdom or elsewhere ; " and again, in the same schedule, " for and in respect of the annual profits or gains arising or accruing to any person whatever, whether a subject of Her Majesty or not, although not resident within the United Kingdom, from any property whatever in the United Kingdom, or any profession, trade, employment, or vocation exercised within the United Kingdom.] The two conditions, therefore, either of which will warrant the imposi- tion of the duty are, (1) residence in the United Kingdom, in which case the person resident is liable to be taxed on his whole income, wherever it takes its rise ; and (2) the carrying on of business in the United Kingdom, in which case the profits of the business are liable to the tax, although the person drawing the profits be no subject of Her Majesty, and be resident abroad. What is true of persons is true of legal persons, and, among them, of trading companies. As regards the question of residence, the courts have held that a sailor, who is himself absent for the whole year, may yet be liable, if he has a dwelling-house in Great Britain, in which his wife and family live (Eogers v. Sol. of Inland Kevenue, June 28, 1879, Ct. of Sess. Eeps. 4th ser. vi. 1109). Again, a British subject who had his only place of business and two houses, a town house and a country house, in Italy, was owner of an estate in Scotland, where he lived for nearly four months in the year. The court held that a man might have several residences, and that this person had a residence in Scotland, and so was liable in income tax. As a person carrying on business in Italy and resident there, he had paid taxes to the Italian Government, including a tax on the profits of his busi- ness. In spite of this, no deduction was allowed to him in Great Britain (Lloyd V. Sol. of Inland Eevenue, March 12, 1884, Ct, of Sess. Keps. 4th ser. xi. 687). The principle followed in this case had been determined in 1817 in England, in the case of Att. Gen. v. Coote (4, Price, 183), on the terms of an older statute, similarly worded. Under the second head, viz. the carrying on of business in England, several cases have been decided in the English courts, some of which have already been cited in notes appended to the text. Foreign firms, ix. firms with foreign domiciles, or consisting entirely of foreigners, with their head offices in a foreign country, have been held liable to pay income tax if they did business in Great Britain by means of agents there, who made 26o £ar's international Law. [note T>. contracts with British subjects. The amount assessable is estimated on the transactions concluded by these agents. The principle is stated by Jessel, M.R, in the case of Erichsen v. Last (Telegraph Company of Copenhagen), 1881, L.E. 8, Q.B. Div. 414. The company there had stations in Great Britain, at which telegrams were handed in and money taken from British subjects, but none of their lines were on British terri- tory. The Master of the EoUs says that contracts with British subjects made in England are sufficient to raise the liability to the tax, and illus- trates the case by putting the instance of foreign carriers, whose services to their customers were performed entirely out of this country. Still, if they took orders in Great Britain they would be liable. This principle is adopted in the subsequent cases of Pommery ». Apthorpe, 1886 (56, L.J. Q.B. Div. 155), and Werle v. Colquhoun, 1888 (L.E. 20, Q.B. Div. 753), which were both cases of foreign wine merchants, who made sales in this country through agents. On the other hand, a firm established at New York, where it had its principal seat, with a branch establishment in England, at which, however, no sales were made, but only purchases of goods for exportation to America, where they were sold, and where all the profits were made, was held not to be liable to the tax (Sulley v. Att. Gen. 1860, 5, Hurl, and K 111). If such a company were to be liable, any customer of an English trader would be liable, a result which the Chief Justice (Cockburn) said would be most serious for English trade. As regards death duties, there is not much to be added to the observa- tions of Mr Westlake (pp. 121 et seq.). The distinctions there drawn between probate duty, i.e. the tax on the whole estate which passes to the executor or administrator appointed in Great Britain, who takes up the estate of a dead man; legacy duty, the tax levied in the case of persons domi- ciled in Great Britain upon the entire amount of their legacies and residue, whether these are or are not received under a British grant of administration or confirmation ; and succession duty, or the tax upon the transmission of property in consequence of the death of some person, who was not the absolute owner, and from whom the person now taking the property does not derive his title, that title being conferred by some British settlement— these distinctions are well marked and illustrated by decisions. That legacy duty is not exigible in the case of persons domiciled abroad is certain (Att. Gen. v. Thomson, 1845, 4, Bell's app. 1 and Wallace v. Att. Gen. 1865, L.E. 1, Ch. App. 1). But, on the other hand, where the estate is placed in trust under a British settlement, i.e. where it stands in the names of trustees in consols or other property which has a quasi local settlement, then succession duty is exigible upon it (Att Gen V. Campbell, 1872, 5, E. & J. App. 524). The same principle was applied in the court of Scotland in the recent case of Duncan's Trs v M'Cracken, March 20, 1888 (Ot. of Sess. Eeps. xv. 638), where" an estate settled by a domiciled foreigner in a Scots trust, i.e. in Scotsmen as trustees, who invested it in the public funds, for liferent to one and fee NOTE Di\ TAXATION OF FOREIGNEKS. 26 1 to another person named, was held hable to succession duty on the death of the liferenter. So, too, in the case of Littledale's Trs. v. Ld. Advocate, Nov. 24, 1882 (Ct. of Sess. Eeps. 4th ser. x. 224), an estate which had been conveyed by a trust inter vivos to trustees, the majority of whom were domiciled in Scotland, and had by these trustees been invested in heritable security in Scotland, for the liferent of the truster, and on his death for his children in fee, was held liable to succession duty on the death of the truster.] ZbUi) Boot?. THE FOEMS OF LEGAL TRANSACTIONS. The Eule " locus regit actum." Origin of this Eule a priori ? § 117. 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 good all the world over, 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 little 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 theory.* According to the theory of others, all persons, in so far as the transactions into which they enter are concerned, are necessarily subject to the authority of the State in whose territory these transactions take place, and the rule in ^ L. Duguit's work, "Ses conflits de legislations relatifs d laforme des ades civiles," Paris 1882, is a recent monograph wliioh has been worked out with much diligence, and contains many interesting observations on the forms of legal transactions in private international law. We must, however, hold that by far the greater part of the results at which the author arrives, whether de lege lata in French law, or de lege ferenda as regards the rules which are desirable in a system of international law, are mistaken : indeed, the eommv/nis opinio has long since decided against the most important of his rules. ^ This rule is extended to the substance of the legal transaction. In this paragraph wo have not as yet anything to do with that matter. ' 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 Haus, pp. 45, 60, limits its operation still more strictly. ■■ Vinnius, Comm. in Instit. ii, § 14 ; Phillips, D. Privatr. i. p. 192 ; Matthaeus, de auctionibus, i. 21, No. 38 ; (v. Grolmann) Ueter Holographisehe Teslamenie, p, 14, 262 § 117] ORIGIN OF LOCUS REGIT ACTUM. 263 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 lawJ ^ This view, to which most modern authors have given their adherence, is the only true one. 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 appKed in international law — a position which the adherents of this view do not adopt. The second rests, in the first place, 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 that take place in its territory to its own laws is incorrect ; for it does not follow that 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 determination should be respected by another State in which the trans- action may be put forward for recognition." But it is just as difficult to acknowledge the soundness of the third cround. The laws which prescribe the forms of legal transactions do not leave anything to the will of the parties. If the law requires a particular form, the parties cannot agree to contract without it ; and, in the same way, they cannot agree to contract according to the forms of any foreign country they please.^" Before, however, we go to prove that this rule of law owes its origin ■> Gliick, Pandecten, i. p. 291; Ricci, EThtwurf von Stadtgesetzen, pp. 528, 529; Danz, Privatr. i. § 53 ; Ziegler, Dieasiice Cond. 15, § 7 ; Witzendorf, de Stat. xx. No. 8 ; Kori, iii. p. 4 ; Archiv. fur die Civ. Praxis, vol. xxvii. p. 309. Those also are to be reckoned among this class who treat the settlement of the question by the lex loci actus as something natural, e.g. Phillips, i. p. 192. » Meviu^ in Jus. Lub. qu. 4, § 14 ; P. Voet, 9, 2, No. 11 ; Petr. Peck, de Test. Conjug. L. iv. c, 30, No. 1 ; Colerus, de Proe. Exeeut. i. 0. 3, No. 182 ; Haus, in so far as he recognises the rule at all ; Pardessns, v. No. 1485 : Eichhorn, D. PHvaireeU, § 37. 7 Gaill, iii. 123 ; Mynsinger, Observ. Cent. v. obs. 20, Nos. 4, 5, says, " Vulgo receptum est " and certifies that as the practice of the privy-council of the empire ; Kierulf, Civilr. p. 81'; Hartogh, p. 69 ; Wachter, ii. p. 368 ; Mittermaier, i. § 31 ; Savigny, § 381, Guthrie, p. 319; Gerber, § 32; Beseler, i. p. 155 ; Schaffner, p. 98 ; Foelix, i. p. 164, especially 172 ; those, too, who like Storey, § 261, appeal to the Comitas gentium, may be counted here. Cf. also Ale'f, No. 44 ; Wheaton, § 90, p. 121 ; Burge, i. p. 29. 8 That this rule is not derived from the Pioman law, an assumption made m earlier times {e.g. by Putter, F^chtsfalU, iu. pt. i. No. 248), we have already sufficiently shown (cf. § 12). 9 Duguit {e.g. p. 205) proceeds upon the assumption, for which^e has adduced no proof, that a. prim, all States, except the State to which the parties belong, or in which the thing in question is situated, are compelled to recognise a legal transaction which has been concluded in the form of the lex loci actus. >» Wachter, ii. p. 406. 254 bar's international law. [§118 solely to an universal law of custom, which has won its way to the front by reason of its convenience, it will be necessary to take Laurent's theory (ii. § 233) into consideration. He has undertaken to demonstrate in quite a peculiar way a priori the absolute validity of the rule " locus regit actum," and he has in some quarters found disciples. He argues that, as the forms of legal transactions are intended to serve as a proof of a free and genuine declaration of the consent of the parties being given to the transactions, it is natural and obvious that the legal system of the country, in which this declaration of will or consent takes place, should prescribe the forms and securities necessary for the attainment of this object. This conclusion, however, which moves Laurent to give to the rule " locus regit actum " an imperative or coercitive force — although he must needs set it aside in some matters, e.g. in the transmission of real rights, and in order to set it aside must make the most artificial distinctions^^ — is after all a fallacy. No legal system has any interest in the proof of a legal transaction except that one in the territories of which it is sought to put it in force. The law of the country in which it was made ^^ has no interest in it, and, if we are to speak of what is natural, every court would test the proof by its own legal system, i.e. the lex fori. Is it to be supposed that the proof of a transaction between Germans, concluded in Africa, can possibly be tested in Germany by African usages ? Can any one believe that the Eomans would ever have recognised the testament of a Eoman citizen if made in any but the Eoman form ? The Eule "loms regit actum" rests solely on Custom. § 118. It is in fact impossible, it is a vain endeavour, to trace the origin of the rule " locus regit actum " a priori, or to show that it follows as a conclusion from any first principles of law. The form of a legal transaction is one of the necessary conditions of that transaction itself, and must therefore be judged by the same law as that to which the particular legal transaction itself is subject.^^' All that it is possible, then, for us to do is to refer the rule " locus regit actum " to a general law of custom.^* " Of. § 240 and also § 255, in which the act of recognition of an emfwrd rMhirel is treated, as regards form, as being dependent on the Staiut personnel. How that is to be reconciled with the recognition of the sovereignty of the country in which the act is done is a riddle the solution of which Laurent has not as yet given us. 1^ Laurent's recourse in this matter to the territorial sovereignty — " Le souveram de chaque pays seul a la capaciti de regies Us formes " — ^is wrong, and is not supported by any proof. The conclusion of legal contracts cannot be put on a par with the management of the police and of the criminal law. 15 To this effect, see v. Wyss, Zeitschr. f. schweiz. R. ii. p. 97 ; Haus, § 84 ; Muheim, pp. 89, 90 ; Phillimore, § 625 ; Judgment of the Supreme Court of Wolfenbiittel, 8th March 1858 (Seuffert, 20, No. 1). " Laurent, ii. § 236, takes the view that this is a desperate and unlawyerlike account of its origin: Stephano Napolitani describes the maxim "loous regit actum" as a degradation of the scientific level (Palermo 1883, p. 22). I cannot appreciate such an argument as this, S -^^^] LOCUS REGIT ACTUM. 265 The existence of such a law has ah-eady been demonstrated by Wiichter by means of numerous quotations, and we have the less hesitation in accepting the fact of its existence, since there are such weighty considerations of convenience to explain the origin of such custom. The origin of it, however, did come about in the following way. There are some passages in the law of Eome which at first sight seem to imply It ; and we may believe that there happened here, what happened with so many other passages which were employed in the Middle Ages and later to establish quite arbitrarily rules of law that have a very recent origin. 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 Eome ; this new rule was rather in plain 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 improbable that this rule was in this way read into the Eoman 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 hesitates 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 Eosate (de Stat. p. ii. qu. 8), Petr. de Bellapertica,!*' Paulus de Castr.," Ealph Fulgosius,i^ and Petr. de Eavenna." 20 It is a fundamental principle of all these older writers, as we have already noticed, that a Statutum binds none but subjects, and accordingly the legal transactions concluded by 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 sollennitates actus belongs to Jurisdictio 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 " Ad Leg. 1, C. de S. Trin. 1" Ad Leg. 1, C. de S. Trin. '7 Ad Leg. 1, C. de S. Trin. No. 11. '8 Ad Leg. 1, C. de S. Trin. No. 21, 18. " Sect. 4, § 75, in the Tractatus 111. ; J.Ct. de Stat. fol. 388, p. 2. ^ Durandus, too. Spec. Jur. L. ii. p. 2, de testamentorum edit, % 12, No. 16, discusses the forms of testaments. Bartholiis de Salic in L. 1, 0. de S. Trin. No. 12 ; Bald Ubald, ad L. 2, C. de S. Trin. No. 83 ; Bartholus, ad L. 1, C. de S. Trin. No. 14, proposes that the lex loci contractus should alone determine the sollennitates actus. 266 bar's international law. [§ 118 Pist., Petr. de Ravenna, 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 transaction 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 placed within the reach of every man's knowledge, 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 publicity. 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 imo judice fidevi faciunt apud 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 pro- cedure. 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 process; a striking example of these is the introduction of the instrumenta quarentigiata, by which the creditor was empowered 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 determined by the laws of the place where the court is situated. Nothing was more natural than to extend this rule to processes 21 It is not meant tliat the course of procedure to be followed by the courts of different countries was determined by the same forms ; the inference that is drawn rather assumes a variety of forms, 22 Briegleb, Ueher execut. UrTcunde, pt. i. p. 30. "The use of private instruments 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 {Hamburgisclm PrivcUr. i. § 10, p. 64), private instruments were first used as articles of evidence in Hamburg at the end of the fifteenth century. § 119] RULE NOT APPLICABLE TO REAL RIGHTS. 267 where voluntary jurisdiction was conferred, if these processes were conducted according to the forms of litigious jurisdiction.23 What was true for judicial transactions would easily be extended to deeds or transactions before witnesses, in the confused 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 testimony to all that passed, while the presiding judge had no duty save to attend to the formal conduct of the business. The Eule not applicable to the Cokstitution oe Discharge of REAL Eights in immoveable ok in moveable Property. § 119. This explanation is confirmed by the exception, which all writers of the Middle Ages make, that in conferring real rights to landed 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 communis ofinio 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 later 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 enter the question at all. We shall see that where the heir was held to be an universal successor, and in that character to represent the person of his predecessor 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 Ux rei sitce. The acquisition of real rights in moveables 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 ^ Cf. the discussion in Cinus de Pistorio in L. un 0. de eonfessis; Bartholus, in L. 15, D. de re judicata, 42, 1, § 1, No. 8. ^ Sayigny gives an instance. History of Roman 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 constitute an oiBcial board ? 25 Cf. mfra, the discussion of real rights. ?« "We may remember the axiom : "Hand must guard hand." 268 BAH'S INTERNATIONAL LAW. [§ 120 following out by process real rights to particular pieces of moveable 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 moveables. 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 moveable assets of a succession, the fiction, which all writers of the Middle Ages who have discussed the conflict of statutes of succession have adopted, comes into play — viz. that moveables 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.^^ Other Limitations? Limitation to Insteuments of Officials ok Notaries ? Can the Eule be maintained in any comprehensive SENSE ? § 120. The expressions used by the oldest authors on this subject make it quite plain that they do not confine the rule to the form of judicial or even notarial instruments. Any such limitation, in view of the impossibility of distinguishing between the character of a witness and that of an of&cial 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 we can have no hesitation in affirming a customary law in this sense also.^^ ^ On this question see infra, discussion on the law of succession. 28 Cf. citations sitpra, and Alb. Brun. de stat. x. § 56 ; Alb. de Eosate, sect. ix. qn. 46, %! et seq. ^ Cf., besides the former citations, Alexandr. Iinol. Cons. L. v. cons. 44, Nos. 20 21 • Jason Mayn, Cons. vol. iii. cons. 59, Nos. 1-3 ; Christian, Decis. vol. i. dec. 283, No. 1 decis. 200, Nos. 35, 37 ; Huber, § 15 ; Hert, iv. § 10 ; Eodenburg, 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; Everhardus, Cons. vol. ii. cons. 28, No. 80; Hartogh, p. let seq.; Henr. de Cocoeii, viii. § 7 ; Hofaeker, de efficacia , § 28 ; Ant. Matthaeus de auctionibus, i. 21, No. 38 ; Molinseus, in L. 1, C. de S. Trin. p. 6 ; Alderan Mascardus, Concl. 6, No. 22 ; Dassel ad Consuetudines Luneburgenses, c. 8, No. 7 ; Seuffert, Commentar. i. p. 248 : Wening-Ingenheim, § 22 ; Gunther in Weiske's BecMslex. iv. p, 737 ; Keinhardt, Supplement to Gliick's Pandects, i. 1 pp. 31, 32 ; Miihlenbruch, § 73 ; Casarejis, disc, de cominercio, 43, No. 19 ; Stryck. de jure principis m territorio alieno, c. 3, Nos. 18, 30 ; Malblano, Princ. Jur. Pom. § 66 ; Cochin (Euvres, v. p. 697 ; Holzsohuher, Oivilr. i. p. 67 ; Mittermaier, D. Privatr. § 31. Cf. too Surge and Story ; Casanova, p. 403 ; Wharton, § 676 ; Westlake, p. 39, who speak to the English, Scottish, and American practice. Unger, Oesterr. Private, i. p. 205 ; Code Civil arts. 47, 48 (as to Actes de I'itat civil), art. 999 (as to the forms of testaments) ; Kluber, International Law, § 55 ; Weiss, p. 521 ; Allgemeines Preuss. Land Mecht, i. 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 Court of Berlin, of 13th June 1867 (Striethorst, 24, p. 370). Blunt- § 120] LIMITATIONS ON THE RULE. 269 The limitation which some authors {(,.g. Thol) impose upon this rule, by- confining it to instruments executed before foreign officials,'**' must be rejected as irreconcilable 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 in use there. No doubt it may be objected (Thol) that the object of many of the laws dealing with the forms of legal instruments, in so far as expediency is concerned, is to be explained on the footing that their intention is 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 applicable, would make even the transactions entered into before foreign magistrates 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 instruments executed by our magistrates, are held to be as essential for the attestation and legality of these acts as those which they prescribe for the validity of private transactions. What is true of one class must therefore apply to the other also. Quid juris, if native law does not permit some particular legal transaction except before a caurt, while it is impossible in the foreign country to complete it schli, B. Privatr., i. p. 12, iii. 1; Renaud, D. Privatr. i. § 42, iii. ; Oppenheim, Volkerrecht, p. 402; Treaty between Prussia and Lippe, of 18th March 1857, art. 32 (Prussian Collection of Statutes, 1857, p. 289) ; Civil Code for the Kingdom of Saxony, § 9 ; "The forms to be observed in a legal transaction, are determined by the laws of the place where it was entered upon, but it will be sufficient to observe the law of the place in which the transaction is to come into operation." 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 cmissce 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 statute includes, 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, testaments and other instruments mortis causa, are declared to belong. 3» Duguit's view is peculiar. He attempts to show (p. 32) that in regard to the rule "locus regit actum" French law is in sharp opposition to that of Italy ; in French law, he says, the rule has simply the force of a personal statute, and is only applicable to the judge or notary who draws up the instrument : and therefore the lex dotmcilii of the party was always applied, except in cases in which the acts of foreign officials were to be regulated by the lex loci (Ktus, in so far as form was concerned. He adduces, however, no proof for this proposition, which certainly must have a presumption against it. That some authors attempt to put all rules of law under the category either of stattcts personnals or reels, does nothing to support his proposition. Nor does the fact, that the application of the rule " locus regit actum," by which the law of the domicile can now and then be evaded, causes much difficulty to the older authors in view of many of the specific directions of the so-called personal statute. The doctrine ascribed by Duguit to the older French jurisprudence is also, he says (p. 22), the rule of the Code Civil, while the recognitions of the rule " locus regit actum,'' which we find in the code in connection with the important matters of marriage and testaments, are to be looked upon as singular and exceptional cases. As Duguit himself shows, this leads to results that are very dangerous to commerce. According to him, it looks almost as if we must assume, in ca,ses of doubt, that the legislator intended to enact what would be, from a practical point of view, a failure. 270 bar's international law. [§ 121 judicially, because the courts there do not possess the voluntary jurisdic- tion, which is necessary to enable them to deal with the case in question ? In conformity with this reasoning, we should have to deny validity 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 validity to the execution of such transactions. The observation which is also made on this point (Thol), to the effect that by means of our maxim we are claiming conventional recognition for a very considerable body of legal rules, the application of every one of which to international questions must be separately tested and analysed, is not to the point, seeing that it is this conventional recognition that constitutes the maxim itself. Whenever we have to do with a legal rule, which either expressly or impliedly refuses to be applied in an international sense, then conventional recognition 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 concluded 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 existing laws.^^ -'o Limitation to Forms which are useful merely in moduvi probationis ? Limitation to Extrinsic Forms ? § 121. According to another view, the rule is to be recognised in so far only as it deals with forms which exist proiationis causap We must, however, reject this limitation also. Of course, if it is provided by statute that a particular transaction 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 providing 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 ^ Cf. note 2, Law of Hanover of 29tb. October 1822 (§§ 1-3), whereby transactions to which are limited, by reason either of the persons or of tlie subjects concerned, to some particular court, cannot be entered upon before foreign courts. 2^ See Fcelix, i. p. 176, and again, as to the numerons statutory provisions, pp. 186 et seq. ^ Gand, No. 350-353, Boubier, 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 ie personally bound to observe the forms prescribed by his own law, that form constitutes a personal statute which must be recognised everywhere. See Boulleuois, i. pp. 497, 498. § 121] EXTRINSIC AND INTRINSIC FORMS. 2']\ contract were proved by some means other than those provided by the statute even more clearly than the statutory means could ensure, the contract must be recognised as binding. But every statute which prescribes the forms of a legal transaction has some end beyond that of insuring means of proof; the limitation 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 contra.cting parties must find its expression — a notion which entirely excludes any dependence on the will of any third party— it follows that any essentials of such a transaction, the observance of which is not dependent on the will 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. We have nothing to do, therefore, in this connection with what are often described in French law as "formes habilitantes." But if, on the other 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. ]5ut, 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 '* So Merlin Repertoire, v. Zoi, § 6th, No. 7. Boullenois, i. 446. Fojlix, i. p. 161. Masse, ii. pp. 121-126. On the other hand, a distinction may very well be taken between the intrinsic and extrinsic element of a legal transaction (Weiss, p. 521), and under the latter forms may be comprehended. '^ It may be, no doubt, that the legislature sets up troublesome forms and solemnities for many kinds of legal transactions, with the view of rendering such transactions void in many instances, e.g., to protect its subjects from entering on donations without full deliberation. But parties, if they seriously desire to overcome the difficulties connected with form, can always do so. 272 BAK^S INTERNATIONAL LA IV. [\ 122 Velleianum are merely provisions to limit the form of undertaking surety- ship 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, therefore, that the rule " lociis regit actum, " is not applicable.^" But the same thing may be said of all forms — e.g. of the necessity of writing. Legal Transactions concluded in another Country in fraudem legis. § 122. The restriction, too, which many authors adopt, to the effect 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 infravdem legis domesticce — i.e. in order to withdraw 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 fraudem 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 caii be asserted of the case we have put.^^ Still less can anything depend upon whether it was possible for the parties to observe any other law than that which prevailed at the place ^ The decision of the Royal Court of Paris, of 15th March 1831, which is assailed by Falix, i. pp. 219, 220, 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 gi'ound 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. '■" P. Voet, cap. 2, § 9, No. 9. Weber, Naturl. VerMndliclikeit, § 62. Thibaut, § 38. Miihlenbruch, § 63. ^ Thol, § 65: "On the other hand, one does not evade a rule of law by avoiding the act for which it makes a regulation, and thus excluding the possibility of its application. 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." The question is very well and thoroughly discussed in a judgment of the Appeal Court at Oldenberg, 4th Jan. 1869 (Seuffert, xix. No. 6). It is certainly conceivable that the law, which in other respects regulates the transaction, should only allow it to be entered on in a foreign country in case of necessity. If that be so, then it is infravdem legis to pretend that such a necessity has arisen. But that is not a thing that will be easily assumed, and an intention to save expense by depriving the fisk of this country of dues is not an act in fraudem legis. Laurent, viii. § 213, comes to erroneous conclusions on the subject of acts in fraudem legis : for the correct view, see Wharton, § 695. § 122] UMITATION SUGGESTED BY LAUkENT. i'j^ 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 prevailing theory .39 Laurent (ii. §§ 240 et seg'.)*" has recently, in criticising Duranton (Code Civ. i. par. 91), laid down a peculiar limitation for the application of the rule " locus regit actum." He proposes that it shall have no application in cases in which an " actc solennd " is in question. That is to say, in all cases where the non-observance of the prescribed solemnities involves a nullity, such solemnity cannot be dispensed with even where the transaction is concluded in a foreign country, although the particular details of this solemn form {e.g. in a marriage ceremony) may be left to the determination of the foreign law. Apart, however, from this last-mentioned piece of illogicality, the whole theory is simply an arbitrary invention of Laurent's. Its sole object is, on the one hand, to get rid of the difficulties in which his mistaken view of the origin of our rule has involved him in regard to the law of real securities, and, on the other, to lay a foundation for his peculiar theories of the treatment of marriage in private international law, according to which the form of marriage before a civil official, first introduced by French legislation, is held to be a kind of primitive law of all mankind, requiring an entirely exceptional treatment. To this last question we shall return later. Let it suffice to say here that Laurent, by his own confession (§§ 243, 244), has almost the whole jurisprudence of France and Belgium against him (see, too, Weiss, p. 523). The benefits of the rule " locus regit actum" for which the whole world is grateful, would by any such limitation be reduced almost to zero, and a general uncertainty in the law would be the only result of Laurent's principles. His theory has been adopted, no doubt, with reference merely to the forms of holograph deeds and deeds executed at the sight of some public authority, or perhaps, to speak more correctly, has been retained in a somewhat modified edition of Laurent's own "avant projet der Code civil beige," art. 20, i.e. the new draft for the revision of the Belgian Code (art. 10), in these terms : "Lorsque la loi qui rSgit une disposition exige, comme condition substantielle que facte ait forme authentique ou la forme olographe, les parties ne peuvent suivre une autre forme, celle ci f^te-elle autoris^e 'par la loi dto lieu ou I'acte est fait " (Eevue, xvi. p. 486). The " motives," or explanatory introduction to. the new Belgian draft, afford an extremely weak basis on which to set up this new exception to the old rule, which has done so much service to the intercourse of nations. It is altogether new, for even Belgian juris- prudence had up to this date entirely condemned it, as Haus (par. 84) shows. (See, too, Asser Eivier, § 27 ad fin.) The authors of this explan- '" See to the contrary, Wachter, ii. p. 416. Haus 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, Wissenchaftlich Bechtskunde, i. p. 10. Judgment of the Supreme Court at Stuttgart, July 1, 1852 (Seuffert, 6, p. 1). Judgments of Supreme Court of Appeal at Lvibeck, 14th and 30th September 1850 (Romer, 2, pp. 410-422). *" Fiore, Effetti internazionali delle sentenze a delle atti, i. § 181, has adopted this theory ; against it, see Lomonaco's discussion of the subject, cap, vii. § 2, p, 182i S 274 sar's international law. [§ 123 atory iutroduction forget that the rule "locus regit actum" is itself a benevolent and wholesome infraction of legal logic. Accordingly, their new discovery that the rule of their 10th article is "j'uridiqus," i.e. a piece of legal logic, is of no avail. It is also unavailing to demonstrate that the prescriptions of Belgian law as to testaments, donations, etc., will in this way be better maintained. For any one can understand that the law of a State will be all the better maintained in any given subject, the more blindly and indiscriminately it is applied. The only question is whether the interests of Belgian subjects, and with them those of the Belgian State, will not suffer all the more in other ways. If Laurent's rule were generally adopted, it would involve a calamity for international intercourse and commerce. But it is possible that the territorial law, which rules the legal transac- tion in itself, may either expressly or by implication forbid the use of forms, which are held sufficient in foreign countries, either entirely or to a certain extent. Thus the Prussian Senate in 1875 " decided that a verbal testament made by a Eussian in Austria was invalid, because the Prussian statute book, while recognising, generally speaking, the rule " locus regit actum," nevertheless requires all testaments to be recorded, a require- ment which of course could not be satisfied in the case of an oral testament. In the same way, by an express enactment of the 992nd article of the Code of the Netherlands, a testament executed abroad by a subject of that State, in a form which is not sanctioned by some public authority (authentique), must be held invalid.*^ Is THE EuLE Permissive ok Compulsoey? § 123. If we understand our rule to have its origin in usage, which is rested on reasons of convenience for the promotion of commerce, it must be regarded as a facility afforded to the contracting parties, and not as a compulsory form. These parties, therefore, have it in their power either to observe the form which is recognised in the country where the transaction takes place, or that which is provided by the laws to which the transaction is subject. The rule " locus regit actum " imports a mere faculty, it does not involve any compulsion or restriction upon the parties. This view has an overwhelming majority of text writers and of legal precedents on its side.*^ ^ See Serebrianny in Jour. xi. p. 363. *^ To the same effect in its results is the judgement of the' Court of Liege of 18th June 1874 ; see, too, Dubois, Rev. viii. p. 495. The French decisions reported in Jour. xi. p. 408, are the other way. ^3 Rodenburg, Tit. ii. o. 3, §§ 2 and 3; Fojlix, i. § 83; Waehter, ii. pp. 377-380; Savigny, § 382; Guthrie, p. 825; Phillimore, § 628; Haus, § 90; Brnaa on Casanova, p. 410; Fiore, § 320; Picard. Jour. viii. p. 468; Esperson, ibid. ix. p. 157; Durand, § 223; Brocher, i. pp. 134,135; Norsa, Kev. vii. p. 195; Aubry et Eau, i. § 31, note 78; v. Wyss, Zcits. f. schweiz. RecU. ii. p. 97 ; Wharton, § 690 ; "Westlake, p. 35 j v. Martens, ii. § 78 ; Supreme Court of Appeal at Eostuck, 12th Juno 1854 (Seuffert, xri. No. 89); Supreme Court at Mannheim, 24th § 123] ths. rule /s pkRmssivn. m In this connection it is well to remember that, in the case of mutual contracts, there would actually need to be a consideration of the laws of the domiciles of both parties if the lex loci contracts were not to rule. This we have hitherto assumed as self-evident, and later, in the subject of the law of obligations, 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.*^ In cases in which there are several joint obligants or subsidiary obligants involved, the question we are now discussing is open to the same considerations for every one of them. It is possible — '' and this is a necessary result of the nature of joint or subsidiary liability in general — that a joint or subsidiary obligant should avail himself of the invalidity in the obligation of some of the other obligants, e.g. the principal debtor. It must at the same time be remarked that the observance of the forms prescribed for any contract constitutes the best proof of the expres- sion of the wiU of the parties 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 negotiations of parties are or are not to be considered as mere preliminaries. The will of the parties to undertake the contract must in that case be demonstrated by some other special proof. Even if the forms which are required by the native laws of both con- tracting parties happen to be observed, this doubt must still be removed ; and as a general rule it cannot be dispelled if the native laws of the contracting parties prescribe no particular form for the transaction in May 1862 and 23rd April 1863. (Seuffert, xviii. No. 204); at Rostock, 1854 and 1866 (Buchka and Budde (Dec. iv. p. 67 and vi. p. 48) ; German Imperial Court (i.) 27th April 1881 (Seuffert, xxxvii. No. 1); 18th Feb. 1880 (Dec. i. p. 328). The judgments of the German Imperial Court are most distinctly expressed upon this point. To the same effect Codice Civ. Ital. dwpoaiz. prelim, art. 9, and the provisions of the Swiss codes (Huber, Sckweizer. Privatr. i. pp. 95, 96). Dudley Field, art. 614, is of another opinion, but gives no reason for it ; so, too, Renaud, Bechtliche Gutcichten {1S86), i. p. 456. Laurent, § 245 (who proceeds logically enough after he has settled his premisses) ; Stefano Napolitani, p. 24 (who uses this peculiar argument, that the foreigner is admitted to the enjoyment of civil rights) ; Asser Eivier is doubtful, but certainly inclines to be of Laurent's opinion ; Bohlau's discussions are unintelligible (p. 437). See, also, in the sense of the text, the civil statute book for Saxony, § 9, and the Hannoverian statute of 29th Oct. 1822, §§ 1-3 supra, § 120, note 30. Roth, § 51, note 126 et seq. ** The rule, " Commodissimum est id accipi, 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 concerned. The forms of contracts are entirely beyond the control of the parties. ^ To the same effect the detailed exposition given by Fiore, § 321, 276 bar's international law. [§ 123 question. The validity of a contract concluded according to the domestic law of both of the parties will then, as a general rule,*'' only fall to be affirmed in cases in which 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 valid 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 contract, 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, in which case parties may very well suppose that, for the sake of commerce, one common law should bind all who resort to it). It is different if the contract is really meant to be carried out in 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. The determination of this question depends therefore upon an accurate estimate *^ of the particular circumstances, which is often a matter of great difficulty. These difficulties have given many text writers a lever for maintaining that no legal transactions should be recognised unless they are in the form sanctioned by the law of the place in which they are executed. This lever will not, however, bear to be put to the test. If there be really a serious doubt of the sincerity of the intentions of the parties to bind themselves, which is incapable of solution, then, even according to our theory, the transaction must be regarded as not proven, ;and therefore non-existent. So far, therefore, there is no practical differ- ence between our theory and its opponent. But why should we be forced to regard a legal transaction as non-existent in other cases, where there is no doubt about the intention of parties ? Such cases, for instance, as those in which the place of the conclusion of the contract — one concluded, it may be, in the course of a journey — cannot be certainly ascertained, or where the place of conclusion is in an uncivilised country : in both such classes of cases the rule " locus regit actum " is necessarily inapplicable.*^ 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 ^ It is, however, too much of a limitation that is provided by art. 9, subseo. 1 of the dispos, prelim, of the Codice Civ. Ital. in perfectly general terms, viz. : " E puro infacoltd, dei disponenti corUraenti di seguire le forme delta loro legge nazionale, purcM questa sia comune a tutte le parti." Esperson, Jour. ix. p. 159. The nationality of the other contracting party cannot always be ascertained with certainty ; on the other hand, the native laws of both parties may be the same or similar. *' In agreement with this view, Wharton, § 880. « Wharton, § 678. § 123] APPLICATION OF RULE TO UNILATERAL ACTS. 2TJ native laws of the pairty executing them are observed. The will to exe- cute 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 application of the personal laws should be presented in this connection; and it is this question which is chieily dealt with by authors on the subject, while they do not concern themselves with what is, as a matter of fact, not a very frequent occurrence — viz. the neglect of the Ux lod 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 in every case such as we are now dealing with. We may, indeed, safely assume that they agree with our theory, if they propose to recognise the validity 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. special proof of the intention of parties to enter upon a legal act according to the laws that prevail in their domicile, that intention 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 ■li* Hert, iv. 23, 25 ; Rodenburg, ii. c. 3, §§ 1, 2 ; Hofeker, De Effi^. % 28 ; Seger, p. 24 ; Ziegler, Concl. 15, § 16 ; Witzendorff, xxvii. No. 7 ; Dionysius 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. 579 ; Burge, iv. p. 588. BouUenois is quite illogical (i. p. 422, and ii. p. 15) in allowing the lex lod 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. Cf. this reasoning, in which the form of a holograph will is treated as a personal 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 validity of a testa- ment 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 whiob is situated at that domi- cile ; but under the rule, " Mobilia ossibus inhcerent," they include in this all moveable property. 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 domicile 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 (Kiocius, p. 533 ; Holzschuher, i. p. 81. Cf. also the citations given by Foelix, i. pp. 162-164). 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 Fotlix, i. p. 184. * Cf. Mittermaier's note, § 31. In this sense we must, in judging of the form of a legal transaction, make reference to the intention of the contracting parties— not, however, meaning thereby that we should test in this way the validity of the form, but merely estimate its import upon the binding force of 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 sub- mission to foreign law (autonomy) has sprung. 278 BAl^S INTERNATIONAL LAW. [§ 124 may arise in the case of bilateral contracts, if, for instance, the contract is made while the parties are travelling by rail or mail-coach." In the latter case, there may even be some doubt as to where the contract was concluded. Then there is nothing at all to show, if different laws prevail at the different stages of the journey, which of them is to prevail as the lex lod contractus, and if we were to adopt the theory which makes the lex lod contractus the sole rule as to the form of every legal act, we should huve 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.^^ Legax Transactions, concluded before Ambassadors and Consuls. § 124. Nothing but the fact that the rule "locus regit actum" is a permissive rule, will explain a regulation which is recognised as existing in practice by the most modern codes and treaties, and which has attained a " 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 subjects are answerable only to the law of their native country, i.e. of their domicile. The exception 'loaus regit actum' implies that the obligations undertaken by them in a foreign country were intended to receive effect in that countiy ; 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 soil, 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 be no question 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 " (Seuffert, 2, p. 162). On the other hand, see a judgment of the Supreme Court at Berlin of 3rd April 1856, Striethorst, 30, p. 303. ^2 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 "locios 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 nuUity, 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 especially the Prussian-Lippian Treaty of 18th March 1857, art. 32: "If by the constitution of either State, the validity of an act depends upon its being under- taken before a particular officer, that is hereby continued "). It is, however, quite consistent with this, that the public officers of a State should, along with the forms therein required to give puhlica 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 actum." Hannov. Eegulatious of 28th Deo. 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 oaths before a notary and witnesses.) § 124] TRANSACTIONS BEFORE AMBASSADORS, ETC. 279 very considerable importance.^s It is becoming more and more common to invest ambassadors and consuls with power to superintend the execution of deeds which deal with legal transactions between citizens of the State which they represent, and also, as officials charged with the care of questions of status, to conduct marriages between such persons, in the form, of course, which is prescribed by th^ law of their State. The explanation of the validity and universal recognition of this kind of procedure is not to be found in any fiction that the acts of the ambassador or consul are to be regarded as having taken place within the territory of the State which the functionary represents. Any such assumption would be unsound. All are now agreed that even the ambassador's residence cannot be said in such matters to be exempt from the operation of the authority of the State in which it is situated, or be regarded as a part of the native territory of the ambassador. Still less can there be any such assumption made with regard to the acts of a consul, who need not enjoy in any respect the privileges of extra-territoriality. But just as the State, to the laws and jurisdiction of which a legal transaction is subject, may enact that it may be concluded or executed without any particular form, it has also the power of enacting that the legal steps taken by its subjects, in presence of its consuls or ambassadors, shall be held to be well taken.^ This does not involve any invasion of the sovereignty of any other State, and accordingly, if we go strictly to work, the consent of the State within whose territory the act is done is not necessary. On the contrary, this voluntary jurisdiction, to the limited extent which we have described, can only be exercised with the permission of the law ^^ of the State which the ambassador or consul represents. The recognition of the privilege in international treaties imports nothing more than a ratification by the other State.^^ Any further extension of the voluntary jurisdiction of ambassadors ^ Code Civil, § 48: " Tout ode de Vital etvil des Francais en pays etranger, sera, recevrable s'il a it6 recu conformement aux lois francaises par Us agents diplomatiques ou par les consuls." See, too, e.g. § 10 of the German-Italian consular treaty of 21st December 18§8 {Nordd. Bundesgesetzblatt, 1869, p. 117). Consular treaty between tbe German Empire and Servia, 6th January 1883, § 9 {Gesetzbl. d. deutschen Beichs, 1882, p. 865). Treaty between France and St Salvador, 5th June 1877, § 10 (Jour. vi. p. 581). Consular treaties of Austria and Italy with Servia (Jour. xi. p. 152). V. Martens, § 78, p. 333. ** In agreement with this, Weiss, p. 573, and the judgment of the French Court of Cassation of 10th August 1819, which he quotes, viz. : " Nos lois et nos agents n'ayant depauvoir A Vitranger que sur les nationaux," ^^ See, for example, the German Imperial statute as to the authentication of status and of marriages, of 6th February 1875, § 85 ad fin. (Reiclisgesetzblait, 1875, p. 39). Belgian statute of 24th May 1884, § 3 (Jour. xii. p. 49). "We shall recur to these enactments in dealing with the subject of marriage. ^ Cf. Renault (Jour. viii. p. 85), and the judgment of the Tribunal of Antwerp of 4th August 1877, to the same effect. See, too, the German-Servian treaty (cited above), § 9, subsec. 4 : "Consuls are entitled to receive and authenticate legal documents, or certify legal proceedings, in which none but inhabitants of the State in which they have their official residence, or subjects of third States are concerned, in conformity with the law of the State by which they have been nominated, if these documents or proceedings have to do with moveables which are situated in that State, or with immoveable property, or with affairs which are intended to be carried on there." 28o bar's international law. [§ 125 or consuls could make no claim to general recognition unless it proceeded upon the authority of a treaty. In the Levant, and in those States in which the subjects of European Christian Powers enjoy extra-territoriality, it seems that, in so far as these persons are concerned, the rule "locus regit actum" has no application. Their obligations will be in the forni sanctioned by the native law of the obligant.^' Legal Transactions between Pebsons who do not meet, (concluded BY MEANS OF LeTTEES AND TeLEGKAMS). § 125. The question as to what law is to determine the form of a contract concluded by letter, between persons who do not meet, can only be answered on the assumption that the rule "locus regit actum" has simply the force of a permission, and is not imperative. It might be fancied that the only point for consideration is, at what place the contract is to be held to have been concluded, whether at the domicile of the offerer or at that of the acceptor, and, as a matter of fact, well-known authorities take pains to show that the one or the other of these two places must be recognised as regulating these matters.^^ But positive law and the practice of different nations cannot be held to such a priori deductions. The law of one State may enact that the transaction is to be regarded as having come into existence in State A, the domicile of the offerer, while the law of another enacts that the domicile of the acceptor is to be held to be the place. How could any decision be reached, if it were absolutely necessary to determine which is truly the place of the execution of the contract ? At the same time, we must notice, in accordance with what has gone before, that the intention of the correspondents to enter on a binding contract, remains doubtful if the form of the contract is faulty. The contract is therefore only good if it is in conformity with the laws that prevail at the domicile of both of the parties. ^^ If, however, the person ^' Cf. Weiss, p. 568. Certain customary laws seem to have grown up for Christians in these countries : in such cases, the rule of " locus regit actum " comes into play again. Cf. Svoequart, Rev. xx. p. 270, and Court of Aix, 17th June 1862 ; French Court of Cassation, 15th April 1865 (cited in the Review). ^ For these different views, see the exposition by Fiore, § 247, who himself pronounces in favour of the view that regards the contract as concluded at the place at which the acceptor's answer is given. Wharton, § 423, on the other hand, remarks that in many cases it cannot be assumed that the party who contracts by correspondence, intends to subject himself to a foreign law. The only thing left is to split up this doublesided obligation into two unilateral obligations, and to hold each of the two parties to the law of his own domicile. ^ In agreement with this view is the ratio of an interesting judgment of the Oberlandes- Gericht at Celle, of 7th November 1879 (Seuffert, xxxv. No. 89), also Stobbe, § 33, note 11 ; Roth, B. Privatr. § 51, note 128 ; Muheim, p. 90. The enactment of the Prussian AUgemeines Landrecht, i. 5, §§ 113, 114, is peculiar but illogical. According to it, the law of that place is to rule which will best promote the validity of the transaction. This provision is intended to apply even where there is no question as to different domiciles of the parties, but where the point is as to the document having been dated at different places. Cf. Forster-Ecoius, i. § 1], note 28. § 126] J^ORMS PRESC/fJBED JN THE INTEREST OF THE FISK. '28 1 who receives a letter deals merely as a mandatary, and concludes a bargain in this character, which binds him according to the law of his domicile, but does not bind the mandant according to the law of his domicile, he may have a claim for recompense against the mandatary, founded on the mandate, although the bargain itself will not bind the mandatary; provided always that the mandatary has hona fide regarded the mandant's offer as legally binding, and that the mandate did not require any special form according to the law of the mandant's domicile. Further, it is obvious that in a bargain which implies merely an unilateral obligation, e.g. in a donation, only the form prescribed by the law of the obligant need be observed. The object of the existence of these forms is merely to protect the obligant from rashness, and from dishonest claims being made upon him : they have no application to the person who desires to acquire a right. A donation, therefore, may be constituted as between persons who never meet without any special form, if the personal law of the donor does not require any special form.®" Forms peesceibed in the interest of the Fisk. § 126. If, moreover, a transaction is invalid, because the forms prescribed by the law of the place where it is negotiated have not been observed, it can make no difference in the result that these forms are required, not in the interest of the parties, but in that of the fisk,®i or public revenue. Accordingly, if neglect of the stamp laws, which are in force at the place in which the transaction is concluded, draws with it the penalty of nullity, the same effect must be attributed to that neglect in a foreign country also, and it is no good objection ®^ that the fiscal or revenue laws of foreign States have no force for us. The question in such cases is not one of the exaction of foreign stamp duties ; it is one as to the form of the legal transaction. We might quite as jtistly ignore a provision of a foreign law, which required certain transactions to be concluded before a court as an essential form, if this form was required for no other end, save to secure to the State a revenue out of the dues exacted on such occasions. «" See the judgment cited in the last note. n One cannot see why a transaction which is void from the beginning — if the law of the place of execution is to be allowed to have any voice at all in regulating its form— should acquire validity by being pleaded in the courts of another country. (See the words of the Chief Justice of the Common Pleas (Eyre), in Melan v. Fitzjames, 1797, 1, Bos. and Pull, 138, in Burge, iii. p. 767. See also Foote, p. 285.) "2 This objection we find e.g. in Wharton, i. p. 147. The result which we have accepted is found also in Burge, ii. p. 870 ; Story, § 260 ; Wharton, § 685, and in an interesting judgment of the Supreme Court at Berlin of 19th May 1857 (Striethorst, xxvi. p. 45). No doubt we must enquire whether the law truly regards the want of a stamp as inferring a nullity. If an unstamjied document is rejected as a means of proof in a process, this is a statute merely regulative of the mode of proof, and as such has no force beyond its own territory. In doubt it is not to be presumed that nullity of the document is the penalty. See, too, Wharton, §§ 686-688, 282 bar's international I./ilV. [§ 127 But if there has been any ratification, although merely by implication, in a foreign country — and an omission to advance the plea of nullity in a law- suit falls under this head— this operates to validate the transaction from the beginning, so that an invalidity of this kind can never be liable to be noticed ex parte judicis. Effect op a Change in the Personal Law, if the Transaction has not been concluded according to the forms of the lex loci actus. § 127. There is still another question to be discussed. Is it possible that a legal transaction, which is not fully in accordance with the legal forms observed at the place where it has been concluded, but is in conformity with the personal law of the party, should become null through some change^taking place in the personal law of that party ? This question is identical with the other, viz. whether we are to test the transaction itself by the personal law at the time of execution, or that which the party last had ; for the form prescribed by the personal law can only be applied in cases in which the transaction itself is, speaking generally, subject to the law of the party's home or domicile. Accordingly, obligatory contracts do not become ineffectual by an alteration in the nationality or domicile of one of the contracting parties. This does, however, take place in the case of testaments, e.g. if a person in whose domicile holograph wills are effectual executes one in a foreign country, where testaments must be concluded in judicial form, and then acquires a domicile or nationality in a country where holograph wills are unknown,^^ The point seems to be doubtful in the case of contracts as to succession. Such contracts settle the right of succession, and, if that must necessarily be determined by the last personal law of the deceased, it seems to follow that these contracts must be determined likewise by .that law ;, and that in this way, if they are not executed according to the forms of the place of execution, they may, for want of formalities,^ lose all validity ^ owing to a '^ So, too, Wachter, ii, p. 380, as to testaments. Wachter's conception of the ratio of the matter is not sufficiently sharply defined. He says that, in respect the deceased's domicile is the sole ground on which the application of this or that law can depend, as the domicile alters so must the law . which is to be applied, for, as the grounds alter, so must the results that are based upon them. But this would lead us to the conclusion that even obligatory contracts may become invalid in form if a change takes place in the domicile of one of the parties. ** These remarks have no reference to any grounds other than defects of form : and the narrower definition of form given above must be observed in this connection also. The omission to institute an "heres necessarius" does not fall under that definition. The right of such an heir, either to be instituted as heir or to be expressly disinherited, cannot be regarded merely as a necessary condition for the expression of the intention of the testator. ^^ In accordance with what has been said, it is plain that the execution of the legal transaction in conformity with the forms of the lex lod actus aflbrds the better security (Dnger, p. 210). § 127] CHANGE IN THE DOMICILE OF PARTIES. 283 change of the nationality or domicile of one of the stipulating parties. But then these contracts give rise at once to de praesenti rights in the parties ; whereas a testament has no effect at all till the death of the testator, a contract as to succession sets a limit on his power of disposal at once. This limitation of the jus disjponencU, for the benefit of the heirs who are to take under the contract, has already an effect de praesenti, and is therefore subject to the law of the domicile which the contracting testator has at the date of his contract, and its operation cannot be defeated by the law of the place of his domicile at death, unless upon conditions which forbid the performance of existing contracts : it cannot be assailed by means of the enactments which are directed to the regulation of the execution or inception of legal transactions, among which regulations we must undoubtedly reckon directions as to form. Any other view would give the parties to a contract of succession power to alter their contract as they pleased by changing their personal law, and would thus give full play to infringements of honesty and confidence.^ It is thus only such legal transactions as have no present operation, and admit of alterations at the will of one person, that can be rendered inoperative by a change in the domicile of a party. Bilateral contracts cannot. It is obvious that bilateral contracts which have been executed in such a form as to be invalid, can never, by a subsequent change in the domicile of one of the parties, become valid. In the case of unilateral contracts, it may be possible to conceive that the expression of intention which has once been made may be presumed to continue to subsist.^^ But the same reasons may be urged against this presumption as are used against the application of new laws, by which the forms of unilateral legal transactions are simplified and facilitated, to such transactions as were invalidly executed in the days of the older law. Neglected forms may, as Savigny ^ says of the rule tempus regit actum, proceed simply from ignorance of law, while there may all the time be a serious intention of entering on the transaction. But it may just as well be that the forms are neglected in full knowledge of the rule of law which applies to them, so that the document was only intended to serve as a preliminary for a deed which "^ We have assumed, in the foregoing discussion, that the law of succession, as is the ease according to the principles of the common law recognised in Germany, is ruled by the last personal law of the deceased . If, as is the case in the law of England [and Scotland], the lex rei sites rules in the case of real property, then, in so far as real property is concerned, contracts as to succession and testaments cannot be validly executed, except in the forms of the lex rei sitcE, See below, on the law of succession. " This was adopted, e.g. in the draft of a civil statute book for Saxony, in which, § 10, subsec. 2, provided, with regard to foreigners who should acquire a domicile in Saxony, viz.; "Antecedent declarations of intention, which they are in a position to alter at their own hand, are valid, in so far as the mere question of form goes, if they can be sustained either by the law of Saxony or by the law of the place where the declaration was made." This passage is quite properly deleted in the statute itself. ^ Savigny, § 386 ; Guthrie, pp. 355-357. 284 SAJi'S INTERNATIONAL. /.A IV. [§128 should be really effectual. In taking up such questions, we should simply entangle ourselv,es in an attempt to judge of accidental circumstances depending on bare possibilities. Would it be practical to give the Eule " locus regit actum " Compulsory Effect in the Future? § 128. "We have shown that the rule "locus regit actum" has, in the present condition of the law, merely a permissive force. The question may, however, be put whether it would not be desirable, by means of statutes and treaties, to give the rule a compulsory application in the future,^^ so that any legal transaction which does not comply with the forms of the place where it was executed should be regarded as invalid all the world over. As a matter of fact, this new idea is not totally destitute of supporters, especially in connection with the theory of French juris- prudence, which seeks to connect itself with the old statute theory, and on that account desires either to have a category of statutes devoted to form, or to attempt to reckon the rules of law that concern the forms of legal transactions either among the Statuts riels or the Statuts personnels. This position is represented most thoroughly and in its best light by Duguit, at the close of his work on the forms of legal transactions. His leading arguments are these prepositions, viz. : 1st, That one isolated system of law, e.g. that of the domicile of the parties interested, may no doubt hold that the legal transaction is valid, if it conforms to its own rules, and not to those of the place where it was executed, but that in other quarters this very transaction may be regarded as invalid : this would be productive of grave disadvantages for the security of legal intercourse ; 2nd, That the proof of a legal transaction must take place according to the rule of the law that prevails at the place where it was entered upon, and must be ■regulated by that law ; and again, that the same law must regulate the proof and the form of one legal transaction ; 3rd, That on general legal principle it is inadmissible to allow parties their choice between different forms for a legal transaction, or still more between a particular form and no form at all. For the first of these propositions no proof at all is adduced. If the State to which the legal relation that is affected or originated by the transaction in question belongs, recognises that transaction as fully operative and valid, why should or must other States do anything else ? What matters it to England, if, for instance, two subjects of the German Empire make a bargain in Eussia about a thing which is situated in the German Empire, in which empire the bargain is to be carried out, and in concluding their bargain have observed their own native law and not that of Eussia ? '^ It is sad to have to notice that the Institute of International Law in 1887 pronounced in favour of the rule being compulsory as regards marriage ceremonies. On this resolution, see our remarks under the head of marriage. § 1'28] 'pjj^ RULE SttOULD NOT BE COMPULSORY. 285 And what interest could the Eussian State itself have in treating the bargain as invalid ? At the most, it might have such an interest, if the parties, in order to avoid some Eussian impost, e.g. a stamp duty, had chosen their own domestic law, or, as their own law allows them to do, had made their contract without any particular form on that account. But in truth nothing of the kind takes place, and Duguit's proposition is simply a petitio prindpii, and at the same time is the reverse of the rule, the soundness of which we have already tested, and on the distinct recognition of which all advance in modern private international law depends — the rule, namely, that every legal relation must be ruled by the law of that territory, the law of which should, in accordance with the nature of the thing, operate upon it. His second proposition rests upon a principle which is beyond all doubt an error. It is not merely in the shape in which proof is to be taken that we say that proof is dependent on the lex fori ; it is also in substance dependent on it. There may at times be a doubt whether a rule of law concerns the form or the proof of a legal act, and that is especially the case with certain rules of the law of France, which limit proof by witnesses. But a claim can never be made successfully to turn upside down private international law, which is intended to give rules for the whole civilised world, to meet these rules of law belonging to one single country, which are, besides, very questionable in themselves. We shall see later, that it is possible to do justice even to such vague rules of law, which are by no means deserving of being sanctioned by legislation, without having recourse to an unsound principle. The third proposition rests ultimately upon a confusion of thought. Parties cannot neglect the forms of a legal transaction, if these are imposed upon them as compulsory regulations. But we do not understand why a system of law should not leave parties a choice between different forms ; we find, for example, in very many highly important systems exactly the opposite maxim in regard to the forms of testaments. It is difficult to conceive how it should be a misfortune that the parties should, in certain cases, have the power of electing between the forms of this or that law : as well might it be thought a misfortune that this resuscitated statute theory apparently suffers some prejudice from that power of electing. But not only are there no reasons upon which an argument for the compulsory force of the rule " locus regit actum " can be based, but, on the contrary, there are very distinct reasons against it. In the first place, it is never a'dvisable to break through the rules of legal logic unnecessarily. These rules, however, lead us to recognise all legal transactions as valid in point of form, if they satisfy, in point of form, the law to which they are in substance subject. We must add to this, that if the rule had a compulsory force the parties would not unfrequently be forced, without any real advantage, to subject themselves, e.g. in case of marriage, to the forms and formalities of another country which might be costly, roundabout, and it might frequently be offensive to their feelings. In States in which the 286 SAliS INTERNATIONAL LAW. [§ 128 ofi&cials are not entirely trustworthy, such a rule of subjection to their authority might be a very serious matter; imagine, under such circumstances, a case in which the law of the domicile permits holograph or so-called mystic ™ testaments, while the State in which the person has his residence does not. Or shall we make out a list of the States in which, in respect of the trustworthiness of the officials, etc., we could give a compulsory force to the rule " locus regit actum " ? Of course, uncivilised States would be excepted, but what is the limit, according to which the judge is to determine the different cases that arise ? To execute legal transactions before a consul or an ambassador of one's native State is not always convenient, or is often too roundabout and expensive. It is simpler to allow the public, whose protection is the object of investing our rule with compulsory force, the opportunity of having recourse, as they require, to their native law. And what would be the result of such a rule, if we could not ascertain with certainty what was the place of the legal transaction ? It is true that in particular cases the legal transaction, which is executed in the form of the lex loci actus, is better protected against the risk of subsequently being rendered inoperative, than that which is in accordance with the forms of the native State, particularly in the case of a testament. It is also quite true, that persons ignorant of law can in many cases get information more easily as to the law of the place in which they are staying, than as to the law of their native State. But we should leave the determination of these endlessly various points to the parties them- selves, who are concerned in the matter, as the ruling theory has for long done ; and all the more shall we do so, as in many cases it is not so very simple to decide, whether some particular enactment concerns the form or the substance of the transaction. But, in such doubtful cases, and at anyrate when the domestic law of one of the parties is decisive of the case, it is advisable to adhere to the domestic law. Against all these disadvantages it is of little importance that, if our rule has merely a permissive force, it may in isolated cases — if the lex loci actus requires a particular form, while the domestic law of the parties recognises the transaction as valid, without any particular form — be doubtful, if the lex loci actus has not been observed, whether a party intended to make a binding declaration, or to come under a binding obligation, as the case may be. This point we have noticed already. NOTE E. ON §§ 117-128 ON THE RULE " LOGUS REGIT ACTUM." [The rule "locus regit actum " is received in Scotland, France, and America, but in England is subjected to serious limitations. In France the doctrine is laid down in a case of Benton v. Horeau, 26th August 1880, by the Court of Cassation (Jour. vii. p. 480). A contract had been concluded ™ [A mystic testament is one signed by the testator, and handed by him, under a sealed cover, to a notary in presence of six witnesses.] § 128] LOCUS REGIT ACTUM. 287 verbally in England between a Frenchman and an Englishman; the Englishman came to sue on the contract in Erance ; it was objected that it was incompetent 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 constitute 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 themselves by the law 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 ? " In Scotland, a contract executed in conformity with foreign forms is recognised as valid and enforced by the courts, although it does not comply with Scots forms. In the application of this rule the following liberal extension is made : " This," says Erskine, Instit. iii. 2-39, " holds even in such obligations as bind the granter to convey subjects " (i.e. heritage or real property) "within Scotland; for where one becomes bound by a lawful obligation, 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,Ct. of Sess. Eeps. 2nd ser. xxiii. p. 831,per Inglis, L.J.C.). " All instruments (without distinction, 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, Ct. of Sess. Eeps. 1st ser. vii. p. 369). The mode of proof, however, must in Scottish courts be regulated by their own law, i.e. in certain cases by writ or oath, although the question to be so settled may be, " Was the obligation verbally constituted 1 " that being a mode of constitution allowed in the particular circumstances by foreign law, and therefore admitted in Scotland. Whereas, however, the author holds that the application of the rule "locus regit actum" is permissive merely and not imperative, the law of Scotland requires the observance of the law of the place of execution, i c. makes the rule imperative, unless where the 288 bar's international law. [| 128 lex loci solutionis is adopted. A contract, then, which does not satisfy the requirements of the law of the place of execution, 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 v. Scott, 16th July 1847, Ct. of Sess. Eeps. 2nd ser. ix. p. 1504). The court will, however, recognise a contract, and give effect to it, if the formalities of the law of the place of performance are, instead of those of the place of execution, observed in drawing up the contract. The opinion of Lord President Inglis, in Valery v. Scott, 4th July 1876, Ct. of Sess. Eeps. 4th ser. iii. p. 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 ; but, according to his lordship's reasoning, it was immaterial that the' forum and the locus solutionis coincided. The place of performance was to be held to be the " place of the contract," and observance of its forms would be sufficient. The court would recognise and enforce, so far as they could, a contract in the forms of the locus solutionis, even although that was a different country from the country to which the court belonged. The general rule is stated by Prof. Bell, in his " Lectures on Convey- ancing," 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 Scotch- man, 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 all such deeds, that as a matter of fact they are validly executed according to the laws of the country where they are entered into." The professor, however, as is clear from his statement on p. 90, does not mean to suggest that domiciled Scotsmen, meeting abroad, and concluding a contract which is to be carried out in Scotland, are bound to observe the law of the foreign country, on the contrary, he recommends them to follow the forms of the law of Scotland. His doctrine, therefore, is not at variance with that of the Lord President in Valery v. Scott. Story states the law to a similar effect, § 260 (4) : " All formalities, proofs, or authentications of " contracts, " which are required by the lex loci, are indispensable to their validity everywhere else." He expresses, how- ever, 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 will 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 sitce must be observed. The rule in England is not quite so liberally applied ; it is no doubt NOTh. E\ LOCVS REGIT ACTUM. 289 the case that the rule is recognised, and not merely recognised, but regarded as imperative. " A contract must he available by the law of the place where it is entered into, or it is void all the world over " (per Lord EUenborough, in Clegg v. Levy, 1812, 3 Camp. 167); and Addison states, p. 1 95,bk. i. cap. 2, " The lex lod contracts generally prevails in all that relates to the legal validity of the contract, the vinculum obligationis. ... If the contract is valid by the law of the country where it is made, it is valid everywhere, unless it is contra honos mores, or is a contract for the doing of ii 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 the law of England goes further. It seems to hold (Addison, p. 198) that a contract to be enforced in England must be valid as regards form, both by the law of England and by the law of the country in which it is entered into. Westlake, too (§ 208), sums up the English law 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 contra- •lictory of the maxim "locus regit actum;' as "Westlake points out- If the intention be to reserve the decision on all matters of procedure " litis ordinaioria " for the lex fori, as is indicated from the cases quoted by Addison, that principle is perfectly sound ; but the recognition 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 Scotland 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 allowing no scope to the will of parties will, as stated in the text, demand observance and exclude the rule " locus regit actum!' The application of the rule to particular legal relations — e.g. marriage, divorce, bills, etc., and particularly to testaments — will receive further con- sideration infra. As regards the execution of contracts by means of letters, Addison states the law of England thus (p. 197) : "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 law that the contract is to be determined. In Belgium, on the other hand, the contract is not held to be concluded till the acceptance of the offer has reached the offerer, and therefore the place of the conclusion of the contract is, as a rule, held to be the domicile of the offerer. (Velghe v. Van Oye, 1876, Jour. ix. p. 564.) The law of England and America, as to the necessity of stamping foreign contracts, seems to coincide with that of the author. Addison on T 290 bar's INTERNATIONAL LAW. {NOTE E Contracts, p. 1060, 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. By " their own country " I understand him to mean the country in which they are executed (see also Bristow V. Sequeville, 1850, L. E. 5 Ex. 275). Story, § 260 (4), says: "Thus, if by the laws of a country a contract belonging to that country is void, unless it is written on stamped paper, it ought to be held void everywhere ; for unless it be good there, it can have no obligation in any other country." This doctrine is approved by Westlake, p. 251. In Scotland the law, until recently, was that the court would not take any notice of foreign revenue laws (Bell's Pr. § 328 ; Menzies, p. 88 ; Stewart v. Gelot, 1871, Ct. of Sess. Eeps. 3rd ser. ix.l(J57) ; but this has been doubted (cf. Lord Deas in Valery v. Scott, 1876, ibid. 4th ser. iii. p. 965). The reasoning of the text would probably now induce the Scottish courts to follow the doctrine of England and the other countries already mentioned, for it is difficult to justify the old practice of giving effect to a contract which the parties must have known to be null. ffourtb Booft. THE LAW OF PEESONS. (STATUS AND CAPACITY.) I. THE NATUEAL EXISTENCE {Dasein) OF PEESONALITY. Capacity os Living. § 129. The question, under 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 positive provisions of this kind — as to the precise point at which a new-born child can be held to be alive, 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 child more protection than a fcetus. 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 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. Declaeation of Dkath ok Disappearance. General Principle. § 130. It is a more practical inquiry by what law we are to regulate the fictitious destruction of a man's personality by a judicial declaration •of death, which is pronounced in particular cases, where there is a complete uncertainty as to whether a person who has been lost to sight is still in life or not. There can be no occasion to inquire into any acts of such a person, or any crime done against him since he disappeared ; and such declarations of death can, therefore, have no other object than to settle the rights of inheritance, and the family relations between the person who has disappeared and his connections : the rights of inheritance in a double sense — first, in so far as claims may be made upon the estate of the person who has disappeared ; secondly, in so far as he may himself have 291 292 BA/i'S INTERNATIONAL LAW. [§ 130 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 questions of succession, however, cases of the iirst 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.^ The view taken by JFiore and many others,* that the declaration of death may be regarded as a judgment affecting the status of the person, and on that account is subject to the law of the State to which the person declared or that is to be declared dead belongs,* comes in its result to the same thing, at least in all countries except those in which succession goes by the lex rei sitae? For these authors speak of the succession to the property of the missing person, and not of rights of succession falling to him. But the distinction between the two views becomes apparent, if we assume affirmatively that the missing person lived up to the date of the declaration of death, i.e. if we take the law which deals with the disappearance as regulative of the right of the missing person to succeed to other people, or if the lex rei sitce is to rule the question of succession.^ [The Presumption of Life Limitation (Scotland) Act of 1891 (54 and 55 Vict. c. 29), passed to enable the Courts to deal with the estates of persons, who have disappeared for a certain time, and are to be presumed to be dead, enacts in its second section ad fin.: "Nothing herein contained shall entitle any person to any part of the intestate moveable succession of a person who has disappeared if the latter was not a domiciled Scotsman at the date at which he is proved or presumed to have disappeared." By its. 3rd section the statute .regulates succession to heritage situated in Scotland ^ According to a sound view of the common law of Germany, the declaration of death has. only reference to the first class. See Heise and Cropp, Juristische Abhandlungen, ii. p. 142. Pfeiffer, Praktische Avs/iilirungen, iv. p. 362. To a different effect is the proclamation of the- Supreme Court of Wiirtemherg to inferior judicatories, on 17th Aug. 1826. See, too, Supreme- Court of Berlin, 6th April 1848 (Striethorst, Entsch. xvii. p. 91). Both of these are reported in Kraut's Gruiidriss zu Vorlesungen iiber das deutsche Privatr. Ed. by Frensdorff, 6th ed. 1886, § 34, Nos. 21 and 22. 2 To the same effect, Brocher, i. p. 265 ; to a contrary effect. Supreme Court at Stuttgart, 10th July 1862 (Seuffert, xv. No. 199). But how can a capacity for succession thus attributed to the missing person control the law of succession, which prevails at the domicile of the person to whom he is to succeed ? What, too, would be the result if several heirs to the missing man appeared, and several personal laws were pleaded in regard to one and the same inheritance ? ' Fiore, § 72 ; Weiss, p. 588. * If the domicile is held to regulate the personal law, the law of succession and of the- family, it must rule here also. ^ If, on the other hand, the missing man owned a landed estate in the other country, and the succession is not regarded by the law of that State as an universal succession, it is necessary- then that there should be a special declaration of death there, with special effects of its own. ® There can be no reference to the personal law of the persons who have obtained the- declarator, i.e. the heirs. They enjoy the administration ad interim of the estate also, in. accordance with the law of the domicile of the person who is to be declared to be dead. By- setting the process in motion, or taking over the administration or enjoyment of the estate,, they submit themselves to this law. See Weiss, p. 589. § 131] JURISDICTION IN DECLARATION OF DEATff, 293 belonging to one who has disappeared. [The principle of this statute is therefore entirely in accordance with that laid down in the text.] JUEISDICTION OF THE COURTS. § 131. It is easy on this matter to determine the competency of the courts. The law which deals on the merits with the declaration of death, decides also what court shall pronounce it.^ According to the view, then, which takes nationality as the determinant of personal law, there is no room for admitting the jurisdiction of the courts of the country in which the missing man had merely his domicile or his place of residence : we can only pronounce the courts of the last domicile to be competent, when that is within the State to which he be- longed as a citizen.8 If, like Weiss (p. 589) and Olivi {Rev. de droit, 1887, p. 520), we allow e.g. a French court to pi'onounce a declarator of the death of a citizen of the Netherlands, if it can be shown that he had his last known domicile in France, we are landed in insoluble difficulties. There will then be attached to the declaration of the French court — as, in fact, happens with Weiss — -effects which it can never have by the law of France, or else the court is forced into pronouncing deliverances which are by the lex fori absolutely incompetent.^ It is quite overlooked, too, that any system which attributes far-reaching results to this declaration of death, may possibly, just on that account, attach stringent conditions to such applications. Every State, however, is entitled to enact provisional regulations as a matter of security,^" and in particular, to set up a provisional curatory in such cases. Indeed, it is bound to do so, in so far as the missing person has property within its territory, not merely in its own interest, for the maintenance of public order, but even in the interests of humanity. These provisional regulations, however, must cease, so soon as the officials of the missing man's own country take up the matter.^^ ' Olivi {Eevue gin6rale du droit, de la Ugislat. xii. 1886, p. 136) proposes that the law of the place where the declarator of disappearance is pronounced should rule, even although the court which pronounces it is not the court of the domicile of the missing person ; but, on the other hand, he proposes to confine the operation of the decree to the territory to which the •court belongs, so that the wife of one who has been declared dead at his domicile, would not be able to marry again in another country, in which the decree did not have, that effect. It seems to us that this result is practically a misfortune : it will lead to confusion in family relations, and, as wo have shown in the text, is unsound in principle. ' By the Hannoverian statute of 23rd May 1848, § 6, it is properly provided that an appli- cation for a declaration of death is to be made to the court to which the missing person, as a matter of general jurisdiction, was last subject "in this country.'' ^ It would, however, be difiicult to adduce a case in which a court would find itself en- titled to pronounce such a decree otherwise than in accordance with its own law, the lex fori. ^'' See, too, Weiss, ut cit. Haus (p. 146) will not allow the articles 112-114 of the Code Civil to be applied to a foreigner, i.e. in his view a person who is not domiciled in the oountiy. 11 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 regula- 294 bar's international law. [§ 132 ■EXTKA-TERRITORIAL EFFECT. § 132. Is a declaration of death or disappearance, pronounced by a competent judge, to be recognised as operative all the world over ? In our view, this question must on principle be answered in the affirmative.^^ The whole matter is simply a prudential regulation for family affairs and questions of succession. Now if, for example, the law of succession were generally to be determined by the personal law, should we not listen to that law, if it enacted that, " Succession to the property of a person, who would be one hundred years old if alive, or who has been absent for a period of ten years without any news of him having reached what was up to that time his domicile, shall be looked upon as having opened " ? The judicial process in question merely introduces a series of special precautionary regulations, the purification of which is certified by the judgment. That can be no reason for showing any less respect to the operation of the personal law in another country. Even the juris- prudence of France in this matter recognises the judgment of the com- petent judge of another country as proof of a fact,^* although as a rule, in consequence of the jM-ovisions of the Code Civil, apart from international treaties, the judicial sentence of a foreign judge is denied the effect of a res judicata. No doubt, as a declaration of this kind in truth merely creates a presumption, the foreign judge, to whom it is pleaded, must be allowed a certain uncontrolled discretion, in virtue of which he may under certain circumstances require an edictal citation in his own country." tions as to disappearance, and the presumptions thereanent, as mere rules of proof, 'n'hich the' judge must in each case determine 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, and before its courts, or whether, and under what conditions, he may allow himself to be convinced by the 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. ^2 Hefl'ter, § 37, note 5, in spite of my exposition in the iirst edition of this work, remain.s of opinion that no judicial declaration of death can take the place of real proof of death, in so far as other States, which either do not have any such doctrine, or whose doctrine on the subject is of another character, are concerned, because a mere legal fiction can claim no recog- nition in a State to which it does not belong. It is not clear what he means by the expression "of another character ; " are trifling differences as to the doctrine sufficient to give the doctrine "another character"? In view, however, of the modem Franco-Italian jurisprudence, it viill hardly be necessary to refute in detail Heffter's theory. The question is not one of a capricious ' imposition of disabilities on certain individuals, but it is a regulation of matters of family status and of property, which is practically necessary, the family and the property having been at the best abandoned to the State, whose subject the missing person was when last heard of. If such declaration by a foreign judge were absolutely refused recognition, the result would be uncertainty and confusion, to the great disadvantage of those concerned. ^' See, too, Haus, § 40, No. 146, and the judgments to which he refers. ^■' If, for instance, the two countries in question are very distant from each other. In such cases advertisements in the official journals of the one country are us»less in the other. 133] LAW OF STATUS AND CAPACITY. 295 II. STATUS AND CAPACITY. {RecUs-und HandlungsfaUgheit: Etat et capacity.) a. general doctrines. Introduction. Limitation and Definition of the Eules of Law that belong to this Subject. § 133. It is a custom which has remained from the days of the old statute theory, to treat a very large number of legal rules and legal doctrines, as having to do with the condition or the capacity of persons.^ This category is seen in its most extended, and therefore also in its vaguest, form here and there in the Franco-Italian jurisprudence of the most modern -school, which has raised the personal rights of the individual into a general I'egulative principle for private international law, limited, it is true, by the public law of the territory. In German jurisprudence, as a rule, it is merely questions of capacity to have rights and capacity to act that are treated in combination, and this point of view is that which is now being more and more commonly adopted by foreign jurists in discussions of particular topics. It must, however, at the outset be plain that a collective treatment of all the rules of law, which admit of being so turned in expression as to treat of the incapacity of a person for some act, or for the exercise of some light, as the case may be, may lead to general confusion. Such a collective treatment is in truth not a whit better than the distinction taken by Bartolus, which has been so much mocked at, founded on the principle of consi- dering whether the primary subject jsf the words of a statute was a person or a thing : for almost all propositions of law admit of being expressed in the form that a person is thereby declared capable or incapable of doing .something. For example, if a man is not owner of a thing, it may be said, he is incapable of disposing of it. If a son, because he is not yet emancipated, requires his father's consent before he can enter on any legal transaction, it may be said that he is incapable per se of entering on it, etc., etc. We can thus account for the fact that, if we undertake to set up a principle of so much generality as the principle which shall regulate the law of status, the capacity or incapacity of a person, we shall to a certain extent stumble at every comer on practical impossibilities, and involve ourselves in contradictions, which must needs be removed by cap- ricious limitations and exceptions to such an extent, in many cases, that 1 Savigny uses the expression, "Condition of the person ;" Story makes use of the expres- sion "Capacity of persons," which corresponds with the title we have chosen ; and Fcelix comprises the whole subject under the title " Effet du Statut personnel," yehich. includes the operation of all the rules that belong to this subject. In the older writers, we find either this latter heading worded as " Statutum Personale" or the expression " Status." Cf. Code Civil, art. 3 : "Xcs Ms eoncernant I'Uat et la capaeiti." 296 bar's international law. [§ 134 there is little more than a shadow left of the comprehensive principle which was laid down with the utmost assurance at the outset. The distinction between the existence of a legal condition fe,r se on the one hand, whicli according to the theory of many shall be recognised at once in foreign countries according to the standard of the law of the country to which the person belongs, and, on the other hand, the effects produced by this legal condition, which are not recognised in foreign countries — as if a man's legal condition was something perceptible to the senses, like his complexion, or the colour of his hair — is a mere feat of logic, by means of which we can prove everything and nothing, and the magic power of which will always find some believers. Exactly the same thing is to be said of the modern and more dangerous theory of the public interest, according to which, again, the effects of a legal condition or state of capacity may be refused recognition in a foreign country. § 134. Let us with these observations consider shortly the course of the historical development of this part of our subject: we must first notice that, as a rule, the following legal topics are treated together under this head, viz. (1) nobility, slavery, civil death, frequently, too, the capacity to inherit, to acquire real property, the loss of reputation (infamy), restrictions on civil capacity by admission into priestly order, the incapacity of juristic and other persons for certain modes of acquisition ; and also (2) minority 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. The older authors proceeded (cf. supra, § 18) on the assumption that the legislator can only provide for the persons of his own subjects ; while, as a rule, foreigners are to be exempted from our laws. If, then, as in all questions relating to this subject, there is a doubt about the habilitas or inhabiliias 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 inhabiliias of the person ? It is obvious that this theory is untenable according to the modern 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 domicile, so the universal applicability of the leges domicilii to all the attributes of the person results as a consequence. " Statuta in personas directa quaegvs 2 Bald. Ubald in L. 1, C. de S. T., Noa. 58, 78, 92; Alb. Brun. art. 8, § 127; Alderau Mascardus, concl. 6, No. 14 et seq. § 134] DETERMINATION OF STATUS. 297 certam iis qualitatem affigunt, transeunt cum personis extra territorium statuentium, ut persona iihique sit uniformis ejusque unus status." ' Others express it thus: "The status^ of a person must be the same everywhere." The difaculty 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 is plainly a statute which will be everywhere recog- nised 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 declared 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 where 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 proper meaning from the obscure expressions of the author. According to Argentrseus (§§ 16-18), a statute of the former kind is always a real statute, which is dependent upon the lex rei sitce. 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 obligation, but the lex rei sifas, on the contrary, so far as the question is one as to the transference of a real right, has been already (^ 20) 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 obligation involved in the transference. P. Voet® denies altogether the operation of any 3 Stockmanns' Decis. ; 125, No. 8, cf., too, Christiansens, vol. ii. decis. 3, No. 3— "06, ut ita loguar, afficierUiam personos." Walter, D. Privatrecht, § 43. * D'Aguesseau's "Works, iv. p. 638; Boullenois, i. pp. 26, 153 — "L'homme itawt le mAine partout." Merlin Rep. Testament, sect. 1, § 5, art. 1. 5 Danz., D. Privatrecht, i. § 53 ; Gliick, part i. p. 288. « Rodenburg, 1, 3, §§ 4-6, Ii. 1, § 1 ; Bouhier, chap. 24, Nos. 1-9 ; Duplessis. Consult. :'S INTERXATIOXAL LAW. \noTE R 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 relations, his powers of managing his estate, and generally all 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 qualified : we have then to deal with the interests of a Scotsman 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 will 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 ? If he has acted prudently and with reasonable care,, and if there was nothing in the appearance of the otlier 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. The rule admits, according to his lordship, of another exception ; obligations 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. 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. Mallac, 1860, 2 S. and T. 77, a learned judge says : " In general, the personal competency and incompetency of individuals to contract has been held to depend upon the law of the place where the contract is made ; " while, on the other hand, the very high authority of Lord West- bury 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. E. 1, Sc App. 457 and Court of Sess. Reps. 3rd ser. vii. H. of L. p. 89). Westlake, pp. . 45, 46, inclines to the view that the doctrine of Lord Westbury may be taken, as likely to be regulative of English law in the future. In a recent case ip the House of Lords (Cooper v. Cooper, Feb. 24, 1888, Court of Sess. Eeps. N0T2 /''.] Il^TERNATlONAL RULES AS TO CAPACITY. 3II 4th ser. xv. p. 21), which was taken on appeal from the Scots courts, the question was raised whether an Irish lady, not of full age, and therefore by tlie law of Ireland incapable of contracting, could on the head of minority alone set aside a marriage contract, which she had executed on her marriage with a Scotsman, it being the intention of the parties that their married life should be passed in Scotland. The House held, that the contract having been made in the country in which she was domiciled, no conflict of law arose, for it could not be contended that, by contemplating a different country as the place of the fulfilment of the contract, i.e. contemplating a change of domicile after the contract should be made, the lady could alter the capacity which she then had. Lord Macnaghten, however, says of the question as to whether the law of the domicile of the party, or the law of the place where the contract is made, is to determine that party's competency or incompetency to contract : " Perhaps in this country the question is not finally settled, though the preponderance of opinion here, as well as abroad, seems to be in favour of the law of the domicile." The doctrine so laid down does not seem to be confined to questions of alleged incapacity or capacity on account of age, but to be of general application (see Westlake, p. 45 et seq). This judgment, like that of Lord Westbury, will be applicable to English and Scots law alike. Although it may be accepted as a statement of the general principle, the exceptions by which Lord Fraser, as we have seen, qualifies the law of Scotland, may quite fairly be grafted on it. In America the rule seems to be laid down by Story, as cited by the author — viz. that the lex loci contractus rules (cf. the case of Saul and his creditors, cited supra, note 29, and by Story). The French law in its general statement is that the term of minority is always to be ascertained by reference to the law of the country of the foreigner's nationality ; and, for example, a Cuban, by whose native law the age of majority is twenty-five, is held incapable of contracting in France before attaining that age (Trib. civ. de la Seine, Ferron v. de Santa Venia, 1878, Jour. v. p. 502). But this rule is qualified by another — viz. that French courts will 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 bills, and had stated tliereon that he was domiciled in France; the bank which discounted these bills had nob 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 full capacity of the acceptor. In these circumstances, the plea of incapacity was repelled (Fourgeand v. Comte de Santa Venia; Cour de Paris, 1879, Jour. vi. p. 488). Again, in the case of Cussac v. Hartog, 1883 (Jour. x. 290), the Cour de Paris held that the rule of a foreigner's personal statute could not be applied, without modification, in the case of a foreigner resident in France for a short time 312 bar's INTERKATIONAL LAW. [§ 141 only, so as to benefit him at the expense of French traders, who had dealt with him without any undue want of precaution, and from whom he had concealed the fact that he was a foreigner. The same rule was applied in the case of Gache v. Drake del Castillo, 1886 (Jour. xiv. 178), by the Tribunal of the Seine. (See the text of § 142 infra.) 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 precautionary measures which Belgian law requires in the case of the alienation of the heritage of minors. It will 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, etc., Cour de Lifege, 1879, Jour. viii. 87). In Germany the ordinary rule is the same as generally upon the con- tinent — viz. that the status of the person is determined by the law of his domicile ; but by § 53 of the German Code of Procedure, a foreigner who has no capacity to sue by 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. A somewhat peculiar case is reported as decided in the Supreme Court of Austria in 1882 (Jour. xiii. p. 468). A Prussian lady attained majority, twenty-one years of age, in 1878 : next year she married an Austrian, and by the Austrian law the age of majority is twenty-four. After her marriage she accepted a bill in Austria, and, on being sued for payment, pleaded that she was an Austrian, and therefore not of age. The court of first instance sustained this defence, but on appeal decree went against her, on the ground that by her marriage she could not destroy rights which she had acquired, i.e. could not relapse into minority again. M. Clunet, however, doubts the soundness of this decision. See his note in the Journal.] Eeaction of modern Positive Law against this Customary Law. § 141. On the other hand, the more recent statutes of the European continent are tending more and more to make an exception from the rule of recognising the law of the country to which the parties belong, by recognising contracts concluded in any country as valid, if the foreigner contracting would by the laws of that country be deemed to be of full capacity.^^ Thus, to a certain extent, the theory of the law of the United ^ Thus the Prussian Allgem. Landr. EinUitung, §§ 23 and 35. § 23 provides: "The personal attributes and powers of an individual shall be determined by the law of the juris- diction in which he has his domicile." § 35, again, runs thus ; "A foreigner, however, who makes contracts in this country, about things that are situated here, will have his capacity to contract determined by the law, which will be most favourable to the subsistence of the contracts." To this effect, too, the statute book for Zurich, § 2, subseo. 2. Saxon statute book, § 8 ; "The capacity of a foreigner will be determined by the law of this country, if there is a question as to his liability arising upon a contract made in this country." (Construed literally, this implies that a foreigner who is of full capacity by the law of his own § 142] INTERNATIONAL RULES AS TO CAPACITY. 313 States, which originally was that of England, is making itself felt, although there is room for doubt whether the result is to declare that the Ux loci actus regulates such obligations generally, or only does so to the effect of favouring obligations which are undertaken in the country of the legislator himself. Thorough-going measures of this kind, in favour of the subjects of the countries which hold this theory, have, as we think, not been fully tested so long as the execution of foreign judgments, without examination of their merits, takes place only to the limited extent, or under the many restric- tions, which we find at present to be the case. If we assume an extended and a reciprocal recognition of foreign judgments, it would then frequently be an easy matter for a person who was under guardianship or curatory, to withdraw himself from that limitation upon his powers by making a journey into some neighbouring country, in which a different legal system prevailed, and so to laugh at the law of his own country. Although such a system seems feasible enough in the United States, where this manceuvre cannot be put in practice without crossing the ocean or a vast extent of desert country, the situation of affairs in Europe is quite different, as indeed will soon come to be the case in North America. The new draft of a commercial code for Portugal has, therefore, rightly declared against such enactments. Ax Intermediate Phinciple. (Most modern French Practice.) § 142. French jurisprudence has recently hit upon a via media. The view has several times been recognised that a foreigner, who by the law of France would have full capacity, cannot escape from an obligation under- taken by him in France, by an appeal to his own domestic law, his personal statute, which differs from that of France in this point, if no neglect of precautions to inform himself of the capacity of tlie foreigner can be charged against the other party.^'' country, will be treated as wanting in capacity in Saxony, if by the law of Saxony he is so wanting. See Stobbe, § 21, note 24. This is certainly peculiar.) The Swiss Federal Statute, too, which came into force on 1st January 1882, provides in its tenth article, after making capacity dependent on the law of the nationality, and drawing the line of full age at twenty, that the foreigner, who by the law of Switzerland has full capacity, will validly bind himself in Switzerland, although, by the law of his own country, he may not be clothed with full capacity. (Cf. Martin, Jour. x. p. 29.) Muheim (p. 123) declares against such obligations, except in connection with bills. In relation to capacity in the law of bills, see the General German Wechselordnung, § 84 : " The capacity of a.foreigner to undertake obligations by bill, is determined by the law of the State to which he belongs. But yet a foreigner who, by the law of his native country, has not this capacity, will be bound by such obligations undertaken by him in this country, in so far as, by the law of this country, he is capable of undertaking them." Substantially to the same etfect, art. 2 of the " Projet d'unc loi vniforme sur hi lettres de change et Us billets d, ordre," sketched by the International Congress at Antwerp iu 1885. For an application of this principle, which in our view is not at all appropriate, is § 53 of the German Civilprocessordnung; see the subject of the law of process. '' So Demolombe, dmit civil, i. pp. 117, 118, and.the judgments of tlie Cour de Paris of 1858, and the Court of Cassation of 1861, cited by Weiss, p. 546. But see, in the same .sense. 314 bar's international law. [§ 142 We would be glad to believe that the future belongs to this theory,^* which is an intermediate theory between the doctrines of the Continent of Europe and of England and America, and which, according to Lord Eraser, is in harmony with the practice of Scotland (see supra, p. 3 1 0). It does, liowever, on one side lead to strange results, which are highly inconvenient for countries whose frontiers are easily crossed, if a man, who in his own country is incapable, by simply crossing the frontier can attain full capacity in accordance with the lex loci actus, or, at least, will be regarded l)y the courts of the other country as of full capacity ; ^^ while, on the other hand, the rule " qui cum alio contrahit, vel est vel esse debet non ignarus coiiditionis ejus" cannot without serious results be applied to all such contracts, in which there is often no occasion to suspect a foreigner in the other party, or in which it would put too severe an obstacle upon trade, if a difficult and perhaps protracted inquiry as to the law of the country to which he belongs had to be set on foot/" Of course, such a provision in the law would never be called in to aid mala fides, i.e. to assist a man who actually knew that the foreigner contracting with him had not full capacity. This objection may no doubt be taken, that the question of " due care " will in practice raise many difficulties : these do not, however, seem to be insur- mountable. As a matter of fact, we know that, in very many matters of daily life, e.g. in unimportant ready -money sales in a shop, any enquiry as to the capacity of the party, if he seems to be of full capacity by the rules of our law {i.e. of full age), would be looked upon as something quite unusual, while the case is otherwise in unimportant transactions on credit, or in sales of heritable property ; while to contract a marriage, without precise information as to the personal legal position of the other spouses, would be thought to be gross carelessness. But it cannot be shown that there is any protection for gross carelessness or for mala fides in our rule ; that mala fides which, for example, would rob a young man, who by the the judgment of the Com- de Paris of October 1883 (Jour. x. p. 291), and the Trib. Civ. Seine ]st July 1886 (Jour. xiv. p. 178), in relation to " achats fails pour les bescins usucls," if the other party "a traiti saris impntdeiice et de bonne foi." In connection with capacity to contract by bills, see judgment of the Com- de Paris of 10th June 1879 (Jour. vi. p. 488). According to this a foreign minor who, by the law of France, would be major, cannot disjiute the validity of obligations on bills undertaken by him in France as against bona fide third parties who hold the bills, and who have acted with sufficient caution. In 1883 1 recommended the two following propositions for adoption by the Institute of International Law, viz. ; — " (1.) La capaciU pcrsonnelle, m&me en maiUre commerciale est regie par la loi nationale dela j-artie. "(2.) Toutefois, une partie {ou le successeur de celle-ce) ayant agi de bonne foi, le contral [ou I'acte d' acquisition) scrait valablc quant a le capacite persmielle, selon la loi du contrat" (Aijnuaire vii. p. 49). I should like to add in (2), after the words "bonne foi," the words " et sans imprudence gram. " ^ Bard, § 137, also declares for it. ^^ Such rules must necessarily also do much to hamper the recognition of foreign judicial decisions. *> Similarly, too, Aubry et Rau, i. § 21, note 29. Sup, too, Broclier, Xouv. Tr. p. 10-). . . . "Les trilmnaux peuvcnt appricier les fails et rechereher de quel c6ti se troure la fauie principale." § 143] INTERNATIONAr. RULES AS TO CAPACITY. !IS law of his own country was still under age; still, however, by the categorical words of the new Swiss statute and of the Saxon code, even such mala fides receives protection." Laurent (ii. §§ 51 and 95) combats this theory fiercely, and he is right to this extent, that it is hardly possible to maintain it intact agiinst the provision of article 3 of the Code civil, and that it is also impracticable for It CO prevail against the customary law of the European Continent without special legislative sanction. But he is wrong in asserting that the operation ■of the personal statute is annulled by the theory of the French Court of Cassation, and wrong also in asserting that the law of a man's home - only declares an incapacity which has a real existence in itself (see supra, AS to the general principles of incapacity, p. 300). In the draft of a statute book for Belgium, prepared by himself, Laurent falls upon a device which •comes very close to the theory against which lie is fighting, but in one respect is less practical.*^ The foreigner who contracts in Belgium shall, he suggests, always declare his personal law, and any incapacity which it may impose upon him, otherwise the other party contracting in good faith may •demand the application of the law of Belgium. Apart altogether from the very possible case that a man should be mistaken as to his own nationality, or should not be accurately acquainted with its laws, such a ^rofessio legis in these modern times would be in marked conflict with the usages of our intercourse, and could hardly be observed.*^ Special Incapacities. (Incapacity foe certain paeticular Kinds of Legal Transactions.) § 143. Such a modified application of the party's own law, with a view to advancing the security of commerce,** and not with the more selfish -view of favouring the citizens of our own country, would practically also put an end to a difficult special controversy, the controversy, namely. *^ It would certainly be going too far to say, with some authors, that no regard at all can "be paid to the foreign personal statute, where this conflicts with the interest of our own citizen. Such a theory of interest is unlawyerlike. Against it, see Clunet, Jour. v. p. 502 ; French jurisprudence has declared against it. *'^ Avant projet de revision du code civil {beige) litre, prelim, art. 15 (i. p. 95). The Belgian ■Commission, recently (1884) established, has again omitted this special provision. It proposes {art. 4) that capacity should be simply and solely determined by the loi nationale of the party •contracting, even as regards the so-called special incapacities ; and argues in support of this, on "the one hand, that one who is incapable should be protected against his own thoughtlessness ■(ecarte), and, on the other hand, appeals to the rule so often employed here, which we have already cited (L. 19, D. de R. J. 50, 17 ; Rev. xvi. pp. 449, 450). There may, however, be disputes as to the meaning of the latter passage wrenched away from the context, and eveu iu their own country minors do not enjoy an absolute protection against their own follies. •Otherwise we should have to protect them even against a true £^oZ«s on their part, which had turned out to their disadvantage. ^' Such a compulsitor would be necessarily imposed, as Laurent projoscs, in the case of the execution of notarial deeds. ** Against this, no doubt, is Weiss, p. 546. 3i6 ear's inter If at/onal law. [§ 143 whether we must pronounce a legal transaction not to be binding, by reason of some special incapacity which exists according to the foreign personal statute ; by reason, that is to say, of a rule of law which leaves the person in general with full legal capacity, and only declares him or her to be incapable of undertaking certain particular obligations, e.g. obligations by bills ,loans of money {S. Cum Macedonianum), and suretyships (S. Cum Vclleianun). International recognition of such special incapacities, by reason of rules of law that are quite special, indisputably implies a very serious danger to commerce. In these cases there is, as a rule, a total absence of any point on which the other party may rely for warning and information.*^ At this point, too, the opinions of those who in other respects declare for the application of the law of the foreigner's own country, begin to diverge.** My belief is that there is no sufficient evidence of any general law of custom in the matter of these special incapacities, by which incapacity, existing in virtue of the law of the domicile or nationality, can be made generally available.*'^ I am, however, of the opinion that the judge of the foreigner's own country must take the incapacity as the basis of his judgment, even against a different rule of law prevailing at the lomts actus, and even where the other contracting party can show absolute bona fides; thus, I fear, these special incapacities, the numbers of which have, no doubt, been much thinned by modern legislation, must give occasion for a variety of conflicts of law. Such conflicts would cease, if the principle w& have recommended were adopted. In a foreign country it would, as a rule, be possible to be ignorant of the special incapacities of our law,, without giving any ground for a charge of remissness, and thus the judge of the country to which the defender in the action belonged, might reach the same result as the judge of the country in which the transaction was concluded, or was to be carried out.*^ ^ Whereas the grounds of general incapacity (no doubt with some modiiications) are recognised in all civilised countries, just because they are more natural in their character, and whereas the persons who are generally recognised as subject to this incapacity, do not, as a rule, have in fact the assets of their property ready to hand, so that the other party to the' contract is directly put upon his enquiry, the case is often exactly the reverse with the special incapacities, which are frequently quite arbitrary. " Laurent, ii. § 57, admits the difference in opinion which has prevailed since the times of the Post Glossatores. Against the recognition of any law of custom, see v. Martens, p. 301. *'' Many take no particular notice of the point. Wachter, ii. p. 172 ; Savigny, § 364 ; Guthrie, p. 157 ; Stobbe, § 30 (wi^w. : Bbhlau, p. 489; R. 0. H. 22; Entsch. 22, p. 67; Fbrster, ii. § 140, note 224 : Schmid, p. 45 ; Laurent, ii. § 58, v. § 69, declare in favour of ruling special incapacities also by the law of the person's own country, Laurent doi-s not, however, prove much by the ground which he adduces in the" iirst place, "Vital est une chose complexe et indivisible." Botthier, cap. 27, No. 3 ; "Walter, § 45 ; Thbl., § 85, note 7 ; Savigny, § 364 ; Guthrie,, p. 158, pronounce for tlie universal validity of the Ux dcnmcilii in reference to the S. Cons. Macedonianum. " The laws of Hamburg know nothing of the exceptio S. Ci. Macedoniani (Baumeister's Hamburgisches Privatr. ii. p. 61). ^ 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. § 154] IN INTEGRUM RESTITUTIO. 339 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 measure of universal application, for it may conceivably be applied in every department 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 textbooks of particular 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 beginning 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 ordinary case in a civil suit — here deliberately and consciously reduces a legal relation that exists, or restores one that has been lost.^ We might, therefore, 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 class of suits which the court holds to be immoral or indecent), hold that the lex fori is applicable in all 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 imperfect invalidity in the origin or extinction of the legal relation which is con- cerned,* and one end in view is to support that existing state of legal relations which the ordinary rules of law justify, by aid, first, of a special proviso tliat the person who desires to avail himself of the invalidity in question shall have to appeal to the judge ; next, by the possibility 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 liampered 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, therefore, there is no place, for the application of the lex fori in questions involving substantive le^al rights, the result is that this in integrum restitutio falls under the ^ Savigny, Syst vii. p. 100. 2 Cf. supra, § 26. =• "Walter, D. Privatr. § 44 ; Holzschuher, i. p. 78. * See the resolution of the Supreme Court ol Berlin on 14th February 1842 (Dec. 7, p. 323), ■B-hich gives expression to this theory in reference to the applicability of new legislation as to restitution. 340 bar's international law. [§ 154 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 purposes,* against the prescription of a suit by the laws by which the suit is itself to be ruled, and against delays of process ^ and judicial sentences by the law of the place where the process is pro- ceeding. Many writers, however, make an exception in regard to the restitutimi of minors. They hold that to be merely a special mode of the operation of incapacity to act, and therefore 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 Eoinan 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 statute 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.^ra domicilii of the minor. At the same time, the following modifications of the general rule we have expounded must be recognised as applicable to the restitution of minors in conformity with the lex domicilii. (1.) The restitution of minors in modern 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 guardianship ; but whether this latter fact is true or not depends, as we have seen, upon the personal law, and so, therefore, must the further question whether a person in a question of restitution is to be treated as a minor.^^ ' So P. Voet, 9, 2 ; J. Voet, in Dig. i, 1, § 29. Judgments of the Courts of Cassation and Kevision at Berlin in 1847, Seuffert, ii. § 2. * P. Voet, I.C., J. Voet, Lc. ; Hert, iv. 66 ; Henr. de Cocceji, vii. 9 ; Bartolus, in L. 1. O. de S. Trin. No. 19 ; Bald. Ubald. L. 1, C. de S. Trin. No. 94 ; Baldus Perus, de statutis Vo. Territorium, § 1 ; ChristianiEus, Decis. vol. i. drois, 283 ; Burge, ii. p. 844 ; Savigny, § 374 ; Guthrie, p. 247; Mitterraaier, Arch, filr civ. Praxis, 13, p. 301. ' The older authors say the laws of the place are to be applied in this case, ubi contracta es irmra {negligentia) ; cf. Bartolus, P. Voet, J. Voet, ut cit. supra. 8 So BouUenois, ii. p. 439 ; Bouhier, cap. 25, Nos. 62-66 ; Merlin, Rep. Vo. Majoriti, § 5 ; decision of the Supreme Court at Berlin, on 25th March 1833 (Simon & Strampff, i. p. 279). " Savigny, § 365 ; Guthrie, p. 168 ; vii. p. 146 ; Laurent, viii. § 72. "• So the Lex Plsetoria in older Roman law. See Savigny, I.e. Cf. in modern law the German Criminal Code, §§ 301, 302. " Otherwise by the older Roman law. 12 Cf. J. Voet, l.c. § 154] RESTITUTION OF MINORS. 341 (2.) The restitution of minors rests upon a special protection which is extended to them. That, however, can only take place where it is so extended by the personal law of the minor. If a foreign State proposed to afford such protection to a minor against the law of his own State, no benefit would accrue to the minor,^^ but his credit would much more probably 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 personal law.^* This is perhaps unimportant, since, if restitution of minors is not recognised by the lex domicilii, it may be assumed that the constitution of the admiaistration by curators is such as to render this legal remedy unnecessary or even prejudicial, 15 ^ See the exposition given above, § 135. " Huber, § 12; Eicci, p. 522. The Supreme Court of AJ)peal at Celle 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 accord- dance with the law of his domicile). V. Biilow and Hagemann, Pralct. Erort. i. p. 150 (cf. Kiimdohr, Jurist. Erfahrungcn, iii. p. 992). (In the older provinces of Hanover, Roman law is the common law.) !•' Wiichter, 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 argument, however, would neces- sitate the application of the lex fori, not here only, but in every other case. jfiftb Booft. LAW OF THE FAMILY. Inteoductoey. § 155. The law of the family is, as we have already remarked above, ta be ruled by the law of the State to which the person belongs, or, as others will have it, by the lex domicilii. Difficulties arise, however, in this subject, either because — In the first place, the persons who are concerned belong to different States, or have different domiciles, as the case may be. The question then comes to be, whether the personal law of the one or that of the other is to rule, or whether, and to what extent, the rules laid down by the laws of both of the persons concerned must be observed, in order to effect a binding contract, e.g. a marriage : In the second place, the persons concerned may change their allegiance, or domiciles, as the case may be ; it may then be matter of doubt whether, and to what extent, the earlier or the later allegiance, or domicile, as the case may be, should give the rule : In the third place, the exercise of privileges belonging to the law of the family may be hampered by the law of the person's residence : In the fourth place, the will of the persons concerned supplies the rule to a certain extent, and it is to be ascertained from the circumstances : In the fifth place, the family relations may produce effects upon the law of property, which in itself may be subject to the law of some other territory. In seeking solutions for the important questions which international law presents in connection with the law of the family, we must, as an essential, keep constantly in our view that the laws of different countries must be so interpreted, and an international agreement must so far as possible be effected, so as to avoid conflicting decisions as to the family 342 § 156] QUESTIONS CONNECTED WITH MARRIAGE. 343 status of one and the same person, since it is in family relations that such conflicts will be specially dangerous, and will have a specially prejudicial effect on public morality.^ I. MAEEIAGE. Introductory. § 156. The special difficulties in the international treatment of marriage,^ arise from the facts that — In the first place, marriage on the one hand rests upon a eonsensits, i.e. upon a contract, while on the other hand the effects or consequences of this contract are not subject to the will of the parties, but are regulated directly by the law. As marriage is intended to set up a permanent condition, the law which regulates it is naturally the law of the State to which the spouses permanently belong ; but again, the spouses, in virtue of their free powers of emigration, may withdraw themselves from the dominion of any particular law : In the second place, marriage is in its essence a relation which cannot come into existence, or continue in existence, on the part of one only of the two spouses, and, again, it would seem that it can only be realised, if the personal law is the same for both the husband and the wife ; and thus it may seem to be a question how far the freedom of emigration of one of the spouses should give way to the principle of the unity of the law of the marriage, or, conversely, how far this principle of unity is to give way to the freedom of emigration : ^ In the third place, very serious differences must be admitted to exist on this subject in the legal systems of civilised States, which in other respects are closely akin, while it is just on such a subject as this that differences are directly traceable to principles of morals or of manners, and are therefore most unfavourable to the application of foreign rules of law. A. PERSONAL CAPACITY TO CONTRACT MARRIAGE. IMPEDIMEls'TS TO MARRIAGE. CONSENT OF THE SPOUSES. l^ECESSITY FOR OBSERVANCE OF THE PERSONAL LaW. DIFFERENT ViEW TAKEN BY THE LaW OF THE UNITED STATES, AND BY THE SwiSS Statute of 1874. § 157. (1.) The jurisprudence of the Continent of Europe has long been agreed that the capacity to contract marriage must exist, in order that a marriage should be valid, according to the law of the parties' own 1 See, to this effect, Brocher, Nouv. Tr. § 28, p. 108. 2 Beach-Lawrence gives a number of interesting cases and decisions, ii. pp. 270-398 ; for some well-known cases, see Calvo, iii. p. 149. ' See, in this sense, Brocher, Nouv. Tr. % 34, p. 123. 344 bar's international law. [§ 157 country : * ^ and that in any event it is not enough if they have such capacity by the law of the place in which the marriage is celebrated. The decisions of the English courts are more and more approaching the same result.^ ^ The jurisprudence of the United States, however, will, as the law of England once did, keep the law of the place of celebration in view at the same time to this extent, that it will hold a marriage which is valid accord- ing to that law to be valid everywhere. This point of view is in recent times represented by Wharton : * at least he can see no reason for deviating from it as far as America is concerned.® The law, in setting up rules as to the possibility of marriage, means, on the one hand, to. provide for the welfare of its citizens, by protecting them from the consequences of premature marriages, or marriages without full consent.'-* On the other hand, it has in view also the welfare of families, when, for example, it forbids the union of persons too closely related to '' As regards capacity for marriage, the view that the law of a person's allegiance must determine the question is more and more widely recognised. See v. Martens, p. 303. ° Henr. de Cocceji, Be fund. vii. 22 ; Cochin, GLuvres, ii. p. 154 ; Seger, pp. 8, 9 ; Walter, § 46 ; Holzschuher, i. p. 82 ; BouUenois, i. pp. 495, 496 ; Wachter, ii. p. 185 ; Piittlingen, § 56 ; Thol, § 80 ; Mittermaier, i. § 30, p. 116 ; Savigny, § 379, i.; Guthrie, p. 291 ; Brocher, Kev, V. p. 154 ; Stobbe, § 34, ii.; Fiore, § 79 ; Laurent, iv. § 263 ; Bard, § 139 ; v. Martens, § 716 ; Asser-Eivier, § 47; Durand, § 144; Weiss, p. 630; Wheaton, § 92, p. 122. As to the recognition of this principle in legislation, see Foelix, ii. p. 483. See, too, the judgment of tlie Supreme Court at Berlin, reported in the Decisions, 29, p. 380, 15th January 1855 (especially p. 398). " Burge (i. pp. 190-194, 195), and apparently also Story (§ 119a), following Huber, § 8 ; and Bouhier, ch. 24, § 12, 90, would refuse to recognise a marriage which was celebrated in a foreign country in fratidem, legis, merely to avoid some prohibition which prevailed in the country to which the parties belonged. 7 Westlake-Holtzendorir, § 17 ; Alexander (Jour. vi. p. 521); Piggott, p. 272. * § 126 et seq. In his iirst edition, Wharton tried to base the international treatment of the law of marriage upon a distinction between Christian principles, which could not be gain- said, and must be recognised eveiywhere, and purely municipal principles with no international effect. See, against this, Brocher, Nouv, Tr. p. 111. Wharton has now abandoned this position. * See, to this effect, Dudley Field, §§ 547, 548 : " A marriage valid according to the law of the place where it is contracted is valid everywhere, and the issue of such a marriage is every- where legitimate. A marriage invalid according to the law of the place where it is contracted is invalid everywhere, and the issue of such marriage is everywhere illegitimate." The error or inexactness of these principles seem, however, to be demonstrated by the limitation (in my opinion just as erroneous) which is added by § 552, viz.: "A marriage, though valid according to the law of theplace where it is contracted, will not be recognised as valid in any country in which the circumstances of such marriage would render the personal relation between the parties a crime." Is the son of a Turk, by whose law polygamy is sanctioned, on that account to be held illegitimate in America ? "• This consideratibn supplies us with a principle by means of which we can solve this peculiar case. It may happen that the personal law of a man, who is intending to marry, obliges him to seek the assent of some relative, while this relative is subject to a law which gives him no such right to assent to the marriage. The assent must be required all the same, in respect that its object is to protect immature persons, just as much as to recognise a right of the relative in question. But we cannot apply this rule to the case of the Actes re^ectucux, which, by article 151 of the Code Civil, persons up to the age of twenty-five years must pay to their relatives. (But see a judgment of the Trib. Civ. of the Seine on 21st Dee. 1885, Jour, xiii. p. 443.) § 157] I'ERSONAL LAW SHOULD REGULATE COMPETENCY. 345 each other: for the family is the kernel of the State. It would be unreasonable to release citizens from the obligations of their own law, provided they contracted their marriages in another country, crossing the frontier and returning again at once. And again, what interest would any State have in subjecting persons, who -had no permanent connection . with it, to these rules ? And, granting that it desired to do so, could it do so effectually ? Will any State forbid all foreigners, to whose marriage, if they were subjects of its own, it would have some objection, to reside in its territories ? It would lose itself in a sea of troublesome inquiries. But, on the other hand, the application of the law of the place of celebration may be defended on the ground that persons who desire to enter on a marriage, should not be checked by the application of the personal law of one or other of the spouses. Considerations of this kind will to a certain extent commend themselves in the case of other contracts, but they have no application to a contract of marriage.^i In the case of an union for life, it would in almost every case be an act of wanton thoughtlessness to forbear to make close enquiry into the personal circumstances of the other party ; and rules of law are not set up for entirely exceptional cases. Durand, too, is justified in saying that, if there were a country which sanctioned a marriage, forbidden by the rest of the world, this one system of law would be sufficient to furnish a means of evading the laws of every other civilised country. The more intercourse extends, the more intolerable must the practical results of a rule be, which should prescribe that a marriage valid at the place of celebration should settle all questions as to the capacity of the parties to contract marriage, or to contract marriage with each other. That such a rule can be still observed in the United States without serious difficulties, and without creating the most open disregard of the law, may be explained by the fact that that country is separated from most other civilised States by the ocean. But as the ocean more and more ceases to constitute a barrier against a return to one's own country, so much the more distinctly must the intrinsic fault of their system make itself felt, as indeed we see in the case of England, where it is gradually being abandoned, as the '"■ This analogy no doubt is urged by Kdnig, Zeitsch. filr Schweiz. RecM, 1886, p. 11. But, strangely enough, on I'age 16 we find this statement, viz.: "The effect which marriage is to have upon the civil status of the wife can be determined by no law save the national law of the husband. It is the law of that State alone to which the husband belongs, that can say whether a wife by her marriage with a foreigner acquires his name, his status, and his home ... for the law of that State alone to which the wife and the child born before marriage are about to belong as citizens can rule their status and their nationality." But why should the lex loci actus not be applied in the ease of a matrimonium subseijuens iilso ? Kdnig (p. 14) proposes to consider a marriage as assailable only in case the gi-ound of nullity is recognised both by the law that prevails in the country to which the parties belong, and that of the place of the celebration of the marriage. This is provided in the 54th article of the Swiss statute of 24th December 1874, but it is for all that not beyond the region of debate, especially as Ch. Brocher (Jour. ii. p. 456) says on this subject, " Une telle regie s'icarte hewucoup de notre ancien droit Suisse, et •mime en la supposant convenahle, il aurait etc nicessaire d'y apporter de notables exceptions.' 346 bar's international law. [§ 157 Channel ceases to be an obstacle to free intercourse.^^ Wharton is of opinion that the rule, that the personal capacity for contracting a marriage shall be determined by the law of the place of the celebration, is in America recommended by the considerations that, on the one hand, the many limitations which the old world puts upon the capacity of contracting marriage (e.g. by requiring the consent of parents) are contrary to the natural ideas of the United States, and that restrictions of that class are only suitable for countries which are afraid of being overpopulated, whereas in the United States there is still room for a large increase of population. That leads us back to the principle enunciated by Savigny, which in my opinion is erroneous, that where economical reasons may be assigned as the foundation of any rule of law — although the necessity of the parents' consent has, as a matter of history, an origin elsewhere than in economical theories — or where you can discover a. conflict of ideas or theories of morals, then foreign rules of law are to be. ignored. We have already noticed that this view is untenable ; the question of population, on which Wharton lays so much stress, is only justified, if the States declare them- selves willing to accept as permanent citizens the persons in question, i.e. if they declare them to be American citizens, and give them naturalisation. They may facilitate naturalisation in the States, instead of rendering it more difficult, as they are at present doing, and this they may do without giving new citizens the political franchise at once. But to determine the personal capacity for marriage by the lex loci actus can have no other result than to lead to deplorable confusion, in the case of persons who have any intention of returning to Europe. For the State to which they belong will not make up its mind to recognise the rule laid down by the United States. The last line of defence for this rule of the United States is its alleged simplicity.!^ People who wish to marry, do not require to furnish any information as to the law of the country to which they belong, etc., and much smaller demands will be made on the intelligence and prudence of the authorities who are charged with the superintendence of the law of status, than would fall to be made under a system which applied the personal law in such matters. But as intercourse increases this advantage turns to a disadvantage : the whole system ends in a general subversion of the authority of the law." '^ At the same time, the present law of Switzerland shows a certain inclination to this system. See KOnig's proposal to the Institute of Dr. Inter. (Annuaire, 9th year, pp. 73, 74). ^^ But see Phillimore's excellent remarks, iv. § 336. ^* It might be thought that, if we were to adopt the view which makes the personal law dependent on the domicile, there would be no such great objection to allowing the law of the place of celebration to give the rule for determining all questions, since the official or clergy- man of the domicile would be the competent and proper authority to celebrate the marriage. But, in the first place, the official of the bride's domicile is just as much the competent and proper person as, the official of the bridegroom's domicile: in the second place, in such matters the conception of domicile is frequently not very accurate, e.g. the Imperial German Statute of 1875, § 42, places the ordinary residence on the same footing as domicile; and, in the third place, the incompetency of the authority who celebrates is, according to many systems of law, not fatal to the validity of the marriage. See German Imperial Statute, § 42, subscc. 2. § 158] HAS THE LAW OF PLACE OF CELEBRATION ANY IMPORTANCE! 347 Eespect due to the Law of the Place of Celebeation ; Determination AS TO MaERIAGES ACTUALLY CONTEACTED, ON THE ONE HaND, AND EuLE OF Conduct for State Officials, on the othee. § 158. We have noticed that there is a general agreement to assume that there is capacity to contract marriage, and that the law of the country of the spouses will give the rule, in cases in which the laws of the countries of both spouses affirm their capacity ; and that in such cases no heed need be paid to any restrictive law on the subject which may happen to exist at the place of the celebration, e.g. a law which makes the validity of the marriage dependent on the consent of the father and the like. On the other hand, this question may be raised: If the intending spouses have full capacity to marry according to the law of State A, need the authorities of that State concern themselves with the enquiry, whether they possess that capacity by the law of the country to which they belong? May we not say — ^just as the parties to any other contract you like may dictate it in any terms they please to a notary, who cannot refuse to authenticate it, so long as it is not prohibited by the law which he is bound to obey, although it may possibly be of no validity — that the parties in the case of marriage must be entitled to contract a marriage at their own risk, although by the law of the country to which they belong it may not be effectual ? The practice of almost all States — except that of the United States — very properly pronounces against any such freedom ^^ of marriage. If the marriage is invalid in the home of the intending spouses, the most serious disadvantages would arise from such a recognition, not only for the spouses themselves, but in the future for their descendants, their family. In fact, marriage will be degraded to the level of a miserable farce, at least if the law of the married person's own State is to have extra-territorial effect, in so far as the main legal incidents and qualities of the marriage are concerned : and again, if the descendants of a marriage of a foreigner with a native woman, which has been declared to be invalid, should at any time be in want of means of support, the burden of their maintenance may fall upon the woman's country. We are therefore well founded in requiring that the intending spouses shall show that by the law of their own country they are capable of contracting marriage. Of course, we cannot require absolutely irrefutable proof : proof of that kind could only be got by way of a legal process. No such irrefutable proof is required 15 See to this effect, and on the necessity of certificates, Fiore, § 90 ; Swiss statute of 1874, S 37 § 3 : " (Si Vipoux est itranger, le mariage no peut Ure, cilihri que sur pr^sentaiion cCuiie declaration de VautoriU Hrangire competinte constatant que le mariage sera reconnu par elle arec toutes ses mites Ugales." The Italian statute book, § 103, § 1, says expressly, " Lo straniero clie xoqlia, eontra/rre matrimonio nel regno, deve presenlare alVuffiziale dello. stalo civile una dichiarazione delV autorita competente del paese a cui appartiene, dal guali eonsti che giusta le leggi da cui dipende, nulla osta al divisato matrimonio. " 348 bar's international law. [§ 158 even when both spouses are natives of this country. A process of nullity may be brought to cut down a marriage contracted by spouses belonging to this country before the o'fBcials of this country. In international practice we are contented with certificates ^^ ^^ from the officials of the country to which the intended spouses belong. In this connection it would be desirable that provision should be made by statute, or by international treaties framed with precision and care, for the appointment of officials, who should be in a position to issue such certificates, and should have a competent knowledge of the law. At present parties and the officials charged with the superintendence of matters of status are often puzzled to know what officials should or may issue these certificates.'^* The best machinery for the purpose would be small divisions of judges sitting together. The matter, as one affijcting the prosperity of whole families, is too important to be committed to subordinate administrative officials merely, or to the officials charged with the superintendence of civil status, particularly as, in many instances, legal rules must be expounded to some foreign official. Again, on the other hand, I am unable to under- stand how the issue of such certificates is inconsistent with the position which a judge occupies. It may no doubt be that occasionally a certificate of the kind may give an incorrect answer to some difficult question of law, or that, in a process afterwards raised in the courts, the tribunal of ultimate resort takes a different view. But we know that such rectifications of judicial opinions and decisions take place in other matters, and no one finds anything unbecoming in the fact that they do so take place. At all events, some precaution would be taken to ensure the legal rights of the parties.^* " See V. Sicherer, p. 268, as to the certificates required in different German States. (The Imperial German statute as to the registration of personal status and the celebration of marriage, of 6th February 1875, simply says that the ofiBcials must require proof of the necessary conditions for a valid marriage, without making special mention of foreigners. ) The rule for certificates in France is furnished by a despatch of the minister of Justice, of 4th May 1831, cf. Durand, p. 302 : as regards Sweden, see Olivecrona, Jour. xi. p. 355 ; Austria, Vesque von Piittlingen, p. 215. Of course, no such certificate will be required from the citizens of a country which recognises as valid the marriage of its subjects, provided it is valid by the law of the place of celebration. See Vesque v. Piittlingen, p. 215. Such a certificate will be superfluous in the case of citizens of the United States. 1' The procedure must not be too strict, else much harm may be done by the prohibition of marriages. At bottom, the question we are dealing with is a prudential regulation. In cases of necessity, we may content ourselves with 'the sworn assurances of the spouses, unless these shall appear to be obviously unworthy of credit, and in any case some means of proof other than certificates must in pressing cases be admitted. See Imperial German statute of 6th February 1875, § 45. ^^ In pressing cases in Frane^e; the so-called actes de iiotorieti have been held sufficient, i.e. formal declarations by French witnesses as to the foreigners' circumstances. Durand, p. SIO, pronounces these documents to be absolutely valueless : to the same effect Laurent, iv. § 299 ; " Ml fait sept Parisiens viennent declarer devant le jugedepaix que le futur ipoux est apte ct contraeter mariaye d'apris les lois de son pays. Cela resemble d, tine seine de vaudeville plus qu'd, une garantie Ugale." 1' It might, perhaps, be of some practical service to substitute for the certificates on the bride's side, whose national law is of importance merely in some isolated particulars, a kind of § 159] HAS THE LAW OF PLACE OF CELEBRATION ANY IMPOKTANCEf -ifA^ § 159. But, on the other hand, it may be asked whether no attention at all is to be paid to a prohibitive law which is in force at the place where it is proposed to celebrate the marriage. Here a distinction must be taken,2» although it is a distinction which is not always kept clearly enough in view.^i A. Suppose the question to be as to the validity of a marriage already celebrated. In that case we cannot admit any exception.^^ The State in whose dominions the marriage ceremony has taken place, has no interest at all to look upon this maniage as any less valid than a marriage contracted by foreigners in their own country. If we recognise a marriage between two foreigners, who are not yet according to our law capable of contracting marriage, there is no reason for refusing to recognise it, because the consent The soundness of the view taken in the text is made abundantly clear in the case of a wife who has been married in her own country, and has not yet followed her husband into his home. Shall her own State force her to follow a husband, whom she does not require to follow accord- ing to the law of her own State, on account of some error owing to a deceit practised on her by her husband ? See Laurent, iv. § 323. * Of course, the tribunal which controls the official, before whom the marriage is to take place. § -^^1] SC/GGESTIONS FOR LEGISLATION. 355 to the good of families, aud parity of treatment of the same marriage by •different States, to recognise as valid a marriage of this kind.*^ For these reasons the following rules were proposed in a sketch for the regulation of international law, which Brusa and I laid before the Institute of International Law at Brussels in 1885 (Annuaire, 8th year, p. 68) :— " (5.) L'officier de Vitat civil d'un pays qvelconque procMera d la cdilration du manage, si le manage n' est pas prohiU par la hi nationale du mari.^ " Toute fois Vofficier doit observer de w.i'me : " a. Quant d la fiancie, la loi nationale de celle ci et la hi du lieu de la c6U- iration en ce qui concerne I'dge requis pour la ciUhration du mariage, et encore la loi TMtionale de la fiancie, en ce qui concerne le consentemervt n&essaire des parents ou tuteurs. " b. qvMnt aujiancie, la loi du lieu de la ciUhration 'par rapport d I'age requis. " Toute fois si la fiancie a I'dge requis taut par sa hi nationale que par celle du fianc6, la Gour supirieure locale, h la demande des parties, pourra dispenser de I'dge requis par la loi locale, et dispenser du mime du consentement des parents ou tuteurs, nicessaire seulement d'apre's la hi nationale de lafiancie. " En to%tt cas, la dispense du consentement des parents ou tuteurs en tant que ce consentement n'est nicessaire qu^ d'aprSs la loi nationale de lafiancie, ne sera pas refused, si la Cour trouve que la volonte de la fiancie est vraiment lihre et rifUchie et que la fiancie n'est pas empechAe par V indigence de retournsr chez ses parents ou tuteurs. " Si le consentement des parents ou tuteurs est egalement nicessaire d'apres la loi nationale du mari, ce consentement sera indispensable, sauf les disposi- tions de I'article 6." As it was intended that, in the case of such a dispensation, the native State of the wife should also recognise the marriage which had been contracted, it would be desirable to add this further rule to the projected legislation, viz. : " Si la dispense est regulikrement obtenue, le mariage est xaldble mime d'aprhs la loi nationale du mari."^^ It must also be held to be quite immaterial on what grounds the 3)articular impediments to marriage are rested, whether on considerations *2 Dispensations from the Actes respedueux of French law and from parental consent are, -on account of the great distance, provided in a French statute of 2Sth June 1877, for the cases of New Caledonia and for French possessions in Oceania. See on that point Verger, p. 57. *' There was a general principle laid down at the outset, that in every case the national law of the husband must be observed. For greater distinctness, it would have been desirable to say ; — " Quant aux empMiements le mariage ne pent Stre invalids qite d'apris la loi nationale du mari. Pourtant le defaut de T&ge requis pour la fiancU et V absence du consentement des parents ou tuteurs suivant la loi nationale de lafiancie doivent invalider le mariage." ** Lehr (Jour. xi. p. 49), along with the Bernese magistrate Gamier, thinks it would be desirable to set up an international tribunal, made up of lawyers of different countries, or an international office, to decide on the admissibility of marriages. I cannot concur with them. Sucb a thing would only serve to aggravate the difficulties, e.g. if the place where the marriage iwas to be concluded was very remote. 356 bar's INTERNATIONAL LAW. [§161 of political economy, or of morality, or religion, or politics, etc. Apart from the fact that it may very often be matter of dispute what the consideration really was which moved the legislature, it is surely plain that the marriage must be governed by the law of the husband's nationality or domicile. Nothing but confusion can result from the recognition of the marriage in question by another State, on the pretext of philanthropy, or from its permitting it to be celebrated before its officials on any such ground. Accordingly, a clergyman cannot be allowed to contract a marriage in a foreign country, if, by the law of his own country, his orders constitute a civil disability for marriage.*^ The case is different when it is only the law of the bride which prohibits such a marriage. Again, any impedi- ments to marriage which rest upon the status of the husband will operate in countries in which such distinctions of status are unknown. For instance, a member of a reigning house is bound even in foreign countries by the disabilities which the law of his house imposes, and the foreign official must have regard to them.'*^ The same result will follow as to prohibitions of marriage between white and coloured persons. So soon, however, as the foreigner acquires the nationality of the country where the marriage is to be celebrated, or of any country in which the proposed marriage is sanctioned, he acquires also capacity to contract it.*'' A slave, however, does not need to acquire any new nationality. All the effects, of the nationality to which he belongs cease on the moment at which he sets foot in a country that does not recognise slavery, since slavery is no. longer a legal institution that has any extra-territorial operation. A slave, then, can marry at once.*^ Other people must at least have lost th& nationality which imposes on them the limitation in question. Provided that the acquisition of nationality without political rights is not made too. difficult, no special disadvantages are likely to arise from a recognition of the impediments to marriage which exist in the husband's State. On the other hand, to enter on a marriage irrespective of all such impediments, whether they rest on religious or on political considerations, may infer the most serious complications, because the State to which the husband belongs will not recognise it. Capacity to contract marriage must be tested by the law of the State to which the person belonged at the time when it was contracted. This seems obvious — it has, however, an important ^^ So Merlin, Mp. v. Loi, § 6, note 6 ; Aubry et Ran, § 31, No. 26, C. de Paris, June 1814 (Sirey xv. i. p. 67). *" Laurent, iv. § 331 ; Olivi, Eev. xv. p. 223 ; "Westlake, Holtzendorff, p. 64 ; "Weiss, p. 634, are of a diiferent opinion. But the validity of the personal statute on which Weiss so strongly insists cannot he got rid of by such arguments as, " Le droit public francais basi sur I'igaliU ripugne aux distinctions de race: il lie connait pas de princes de sang royal." On such topics we have to deal with nothing but public law. ^' [A Frenchman married to a negfess in Louisiana cannot plead the nullity which the law of that State imposes on such mixed marriages. Roger v. Roger, Trib. Civ. de Pontoise, 1884„ 12, J. p. 296.] ^ To the same eifect Olivi, Rev. xv. p. 223, with reference to the law of Italy. § 162] DISPENSATJONS. 357 application *» to the case of a divorced spouse who, hy the law of his or her earlier home, the law upon which the decree of divorce proceeds, was incapable of marrying a second time, whereas the law of the State to which he or she now belongs (in cases where the law of the domicile rules, the law of the new domicile) implies capacity for a second marriage. This supplies us with a test for the case of Bauffremont, which we have already discussed in another connection. The Princess Bauffremont, if she had been regularly naturalised in Prussia, might have demanded, in virtue of § 77 of the statute of the German Empire of 6th February 1875,50 for the regulation of the publication of personal status — a section which came into force in Prussia after 1st March 1875 — that the separation de corps which had been pronounced in France should be converted into a decree of divorce by the competent Prussian court. She was, however, not a Prussian subject, but, if the naturalisation which had taken place was effectual, a subject of Altenburg. But the rule of the 77th section, to which we have referred, which, in virtue of § 79 of the same statute, came into force in Prussia at an early date, was not yet law in Altenburg, nor was there any other statute in force there to a like effect. Even if we were to assume — and it is a very doubtful point — that she had taken up her domicile in Berlin, and that therefore the law of Prussia became applicable to her, the separation de corps, oi the French court would not of itself, ipso Jure, be transformed into a decree of divorce which will allow a second marriage. That can only be done by means of a judgment in a suit instituted for the purpose, and no such suit had in this case been instituted.^^ Dispensations. § 162. Many impediments to marriage may be got rid of by dispensa- tions. The authority of the State by whose power the impediment in question operates, is the proper source of such dispensations. As a general rule, then, the sovereign of the country to which the person belongs is the person to give a dispensation. In some cases, however, we require a dispensation from the officials of the State in which the wedding is to be celebrated. In some cases we shall have to obtain a dispensation not only *> Cf. V. Sicherer, p. 139, and the judgment of the Court of Berlin of 24th Feb. 1875 there cited (lohow, Jachrhrueher fur endguUige Enlscheidungen, vi. p. 19). 5» " If a sentence of permanent separation of the spouses at bed and board would fall to be pronounced in accordance with the existing law, a sentence of dissolution of the marriage shall be forthwith pronounced. " If a sentence of permanent separation at bed and board has been pronounced before this statute comes into force, either of the spouses may sue for dissolution of the marriage in a regular process, on the ground of the existing decree of separation, proyided that the spouses have not in the meantime come together again." 51 Cf. the clear exposition in Stolzel's paper so often cited, p. 59. Bluntsehli's and v. Holt- zendorfTs discussions are based upon erroneous assumptions as to the law of Altenburg at the time and consequently on a mistaken interpretation of the Imperial statute to which I have referred 358 BAliS INTERNATIONAL LAW. [§ 163 from them, but from the official of the State to which the parties belong. (See, however, supra, § 161.) •"Want of Consent as an Impediment to Marriage. § 163. There are, too, impediments to marriage, which have their roots not so much in the incapacity of the person, as in some defect in the expression of consent. Of this kind the most prominent impediments are force and error. We would be inclined in such cases not to apply the personal laws of the spouses, but to some extent the law which prevails at the place of the wedding, i.e. where the declaration of intention takes place. This is v. Sicherer's view.^^ The contract, however, on which marriage is founded is not to be ranked in the same line as an ordinary obligatory contract. It has a far closer relation to the permanent legal position of the person, and cannot therefore very well submit itself to the rule of any other law than that which governs the other personal relations. As a consequence, the law of the home of the spouses must also regulate the question whether the right of appealing to some defect in the declara- tion of intention can be renounced with effect. This result is an important one for the protection of a wife who has married a foreigner. B. FORMS OF MARRIAGE. Eecognition of the Eule "locus regit actum" in a Permissive Sense. § 164. There is a general agreement that a marriage which, in so far as its form goes,^ is in conformity with the law of the place where it is celebrated, must be recognised everywhere as formally valid,^ especially in "2 p. 130. On the other hand, see Laurent, iv. § 322. 1 Of course, it is of importance to define "form" or "formalities" accurately, and tO' adhere to this definition (see supra, § 121). That is very often neglected, and in particular by English jurists. Thus Foote, p. 48, includes in forms the requirement of the consent of third parties, e.g. of parents, and according to him the essential and material requirements for a valid marriage are the facts, and the facts alone, on the presence of which it depends whether the parties in question can contract any marriage at all. This distinction, ■which to some extent owes its origin to the French institution of " Acies respedueux," will obviously give rise to the greatest confusion. 2 Hert, iv. 10 ; Cocoeji, vii. 24 ; Hofaaker, de eff. § 28 : Bouhier, c. 28, No. 59 ; Hommel, Khaps. Qusest. vol. ii. obs. 409 ; Lauterbach, Diss. Acad. iii. 128, c. 9, No. 3 ; Cochin, CEuvres, i. p. 153 ; BouUenois, i. pp. 494, 495 ; Putter, Eechtsf. iii. pt. i. pp. 69-80 ; Titius, Jus. Pr. i. c. 10, § 21 ; Oppenheim, p. 393 ; Burge, i. p. 184 ; Wheaton, p. 115 ; Schafiher, p. 127 ; Foelix, ii. p. 367, note 2. The Code CivU, in its 170th article, recognises the principle ; but neglect to publish the marriage in the way which is for all that required by French law may in certain circiimstances operate nullity of the marriage in France. (See Foelix, p. 382, as to the disputed meaning of the latter part of the 170th article, cf. Mittermaier, i. 16 ; Stephen, i. p. 243.) French jurisprudence is now fixed to this effect, viz. that, where there is a. failure to make the publication prescribed by art. 170, nullity will attach to the marriage celebrated in a foreign country only if this publication is obviously omitted, in order to § 164] APPLICATION OF " LOCUS REGIT ACTUM'' 359 the State to which the spouses belong. In accordance with what we have already said upon the principle of the rule "locus regit actum" the rule which comes into play here, we can attribute to this rule merely a permissive force, i.e. the parties may legally avail themselves also of the forms of their own country, provided always that in fact that is possible. This is the common opinion,^* which e.g. undoubtedly lies at the Irtjttom of the provisions of the 165th and following articles of the Code CiviL It would, of course, be possible for the legislature to provide that a marriage celebrated abroad, under the forms of a foreign country, should not be recognised, although such a course would be most unpractical and, as a rule, mischievous.^ Laurent's new Theory. Criticism of it. Eesolutions of the Institute of International Law. § 165. Laurent has recently (iv. § 230 et seq.) championed the opposite view. He thinks that this is a question of police regulations, which must be ruled by the sovereign authority of the locality. But what interest could any State, in which two persons of whom it knows nothing accidentally contract a marriage, have in seeing that its forms are observed ? Of course, uncertain or defective forms of celebration may be objectionable from the point of view of a censor of morals ; but consider- ations such as this would prove too much, for they would show that no State could suffer marriages contracted in a foreign territory to prevail in its own country, unless they were celebrated according to its own forms as deprive those who by French law are entitled to object to the marriage from having an opportunity of objecting. See Trib. Seine, 26th April 1887, Jour. xv. p. 476 ; C. Besancon, 4tli January 1888, Jour. xv. p. 90 ; and Clunet, Jour. xv. p. 91. This result is justified by reason of the connection which exists in French jurisprudence between this right of objection, which is subject to the personal law, and the form of the celebration on the other. The jurisprudence of Spain, as Torres Campos shows at p. 280, recognises in the fullest sense the ^■ex loci actus. A marriage is always valid, if it is celebrated in the form of the lex loci actus. * See, especially, Savigny, § 381 ; Guthrie, p. 32.3 ; Durand, p. 367 ; "Weiss, p. 660. See, too, the judgment of the Supreme Court of Appeal at Dresden, of 21st June 1845, reported by Senffert, 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 marriages before a civil official, and the registration of the same, were not observed ; because, although the rule " locus regit actum" is recognised by the practice of the Saxon court, yet the law of Saxony must decide in the case of a legal transaction between two subjects of Saxony, the legal existence of which is recognised by that law, and the legal consequences of which are to be ascertained and fixed for the whole life of the parties interested. For the permissive force as all*hat can be given to the rule lex loci actus, see in recent times D. R. G. (iii.) 27th January 1887 (Bolze, iv. § 18, p. 6), Vesque v. Piittlingen, § 62. * It is no doubt possible to look upon the failure to observe the form which prevails at the place of celebration as casting doubt upon the reality of the consent, e.g. in cases where the law of the country to which the parties belong allows marriages to be contracted without any particular form. s A former Bavarian ordinance declared all marriages conti'acted abroad by Bavarian subjects null. 360 bar's international law. [§ 165 well. That would, however, contradict Laurent's own theory. Further, it is entirely unhistorical to require absolutely for a marriage some solemn act * before an official charged with such afiairs : it is trite that almost the whole world has long recognised the rule consensus faeit nuptias!' The official of the State does not, in celebrating a marriage, as Laurent no doubt thinks, exercise an act of sovereignty in the highest sense, but only performs the function of a privileged witness to a solemnity. The true ground, however, of Laurent's theory is his aversion to the religious shape of the ceremony of marriage. If his reasoning is correct, even foreigners could never contract a marriage in the religious form in a country in which the so-called civil marriage is recognised as an imperative form ; and iu particular, if the marriage ceremony in its unalterable essence and nature requires an actus soUemnis or the co-operation of the State, then neither Frenchmen nor Belgians could ever avail themselves of the religious form * in a foreign country. Jline illce lacrimce. This new theory, which brings Laurent into conflict with other recognised rules of international law, and which, on his authority, has been taken up by others, is calculated to ' Two careful judgments in accordance with each other on the same case (C. d'Aix and C. Cass. 8th July 1886, Jour. xiii. 585) are as much opposed to this new theory of solemnity as to the notioii that the rule " locus regit actum " has anything more than a merely permissive force. Proof of a marriage between two persons of French nationality was made out by mere private records of it, because at the time of the marriage no registers of such matters were kept at the place where the marriage was celebrated : and, on the other hand, the Court of Cassation expressly declined to take proof as to foreign law, on the ground that the observance of the law of France is all that is required to evidence a marriage and to found a family. A more emphatic rejection of Laurent's entirely capricious theory, the adoption of which would be a calamity for the citizens of all nations that are fond of travel or of enterprise, is hardly conceivable. As against Laurent, see, too, Olivi, Rev. 15, p. 230 ; but particularly the trenchant criticism uf Durand, p. 321, "Enun mot il (Laurent) arrive d, imposer a tout le monde la loifraneaise. G'est la une source d'insolubles confiifs. " '' It is recognised in the United States in this sense, — that their jurisprudence does not impose nullity of the marriage as a consequence of the failure to observe the formalities prescribed in any State for the celebration of it ; any such nullity must be expressly enacted by the law of that State. See Beach-Lawrence, iii. p. 323 ; judgment of the Supreme Court of the United States, rep. J. V. p. 541. In truth, the rule consensus faeit imiptias is recognised. It is noticeable that Dudley Field (§ 548) attributes to this rule an absolutely obligatory force in regard to the marriage ceremony, of course without any demonstration. An author who casts a text-book in the shape of a statute book or code very easily encounters the risk of confusing what he thinks desirable or suitable with what is recognised law. See, too, Field's remark on the transactions of the Institute of International Law, Ann. 1887, 1888, p. 93. On the other hand, see the remark of the president v. Bulmerincq at the same place. 8 The opposite position, it may be noted, obtains in one State — the Argentine Republic — where the ceremony of marriage is regarded as an exclusively religious act. Here, however, every marriage celebrated in the form of the country in which it takes place is recognised as formally valid, even although the spouses have gone abroad in order to withdraw themselves from the form which the law of their own country prescribes. On the other hand, howeTCi-, every maniage concluded in the forms of the Catholic Church — without any civil wedding — although it may be invalid by the lex lad actus, is treated as valid by the Argentine Republic. (Cf. Daireaux, Jour. xiii. p. 292.) See, too, the express provision of the treaty of the Spanish- American States in 1878 {iibers. Zeitschr. f. d. ges. Handelsr. xxv. p. 547, §§ 7 and 9). § 9 provides : "A marriage contracted according to the spiritual law of the Catholic Church has civil effects within the State, even although it would not have had such effects in the country in which it was celebrated." §16.5] APPLICATION OF "LOCUS KEGIT ACTUM." 361 create great confusion, the prejudicial effects of which have already shown themselves in the proceedings of the Institute at Brussels in 1885. We shall return immediately to the question of ecclesiastical forms. We need only in the meantime note, that of course it may seem desirable, from the point of view of the lawgiver who has adopted the principle of a compulsory civil marriage, to put down altogether marriages in facie ecdesice, even when these are exclusively confined to foreigners. This result, however, may be attained in a very simple way by a law which forbids clergymen, under a specified penalty, from performing marriages unless they have been preceded by a civil ceremony. Such a penal provision, of the same kind as is contained in the Code p^nal, § 199, and in § 67 of the statute of the German Empire dealing with the publication of status, is quite sufficient ; whereas the absolute prohibition of ecclesiastical marriages even in other countries may work most prejudicially for the legislator's subjects abroad. However, it may be noted that the 41st section of the German statute of 6th February 1875, at least in its literal interpretation, and in the meaning which v. Sicherer {Personeinstand, p. 346) puts on it, oversteps the limits of the legislative authority conceded by international law to a State. It runs thus : " Within the German Empire a marriage can only be validly concluded by an official charged with matters of status." If, then, for instance, marriages without any particular form, or marriages contracted before private witnesses, are recognised as valid by the jurispru- dence of the United States, and if two subjects of the States contract within the German Empire an informal marriage, or a marriage before private witnesses, this rule of law, read literally, directs the German judge to declare that marriage invalid, even if the validity of the marriage should be a preliminary question for the decision of some other legal claim, e.g. a claim of succession. That is altogether absurd. The statute, correctly read, must run : " In so far as the validity of a marriage depends on the law of the German Empire, or of one of the States of that empire, it can only be concluded within the empire before an official charged with matters of status." ® Finally, the Institute of International Law, in the resolutions taken at Heidelberg inl887(cf.Ann.l887,1888, p. 101),assigned to the rule "ZocMsreg'ti Cf. e.g. Art. Smalcaldici, depotestate, quoted by Hase, Libri symholid, p. 355, and the thorough exposition in the judgment of the Supreme Ct. of Berlin already cited in note 22. By it an informal marriage concluded at Gretna Green was recognised as formally valid, although the laws of the domiciles of the spouses required marriage infcwie ecclesice. 31 I am sorry to remark that Thol, § 80, Gerber, § 36, No. 6, Unger, p. 210, are instances in which men have been confused by this new train of reasoning. Olivi (Bev. xv. p. 237) peaches the same result, and in particular this mischievous conclusion, that subjects of a State, which recognises none but an ecclesiastical marriage, can never be married in another State, where none but civil marriages are recognised. He establishes this in a way that is unworthy of a lawyer. A cdlOrratim religieuse, he thinks, is a nonsens juridique. But the State to which the parties thus invalidly married belong may regard the marriage as " simple fait," and on this footing force them to go through a marriage in accordance with its own forms. Wherein this power of compulsion consists, and how it is to be worked out if the spouses remain abroad and perhaps die there, Olivi does not say. Even the Spanish Code of 1862, art. 50, which he cites, and which makes sufficient concessions to the Catholic religion and to piety, expresses itself more prudently. It does not say that the marriage is null or a simple fact, but that the spouses must again go through the marriage in facie ecclesice, if they return to Spam. 2 A 370 bar's international law. [§ 169 clergyman of their own church, because he is not a civil official of the French Government. But he proposes in the same way to refuse to citizens of the United States, who by their personal law may contract a marriage without any form at all, the possibility of doing so in France. Durand has supplied us with a trenchant refutation of this fanaticism for civil marriage. He says that Laurent's desire is simply to impose the law of France on the whole world.^^ We shall not go wrong if we suppose that in this case, as in others, dislike of the Catholic Church has guided the pen of the famous Belgian jurist. "We can only deplore that, as was made plain at the meeting at Brussels in 1885, every one has not paid sufficient attention to Durand's refutation of Laurent's misleading words.^^ NOTE H ON §§ 156-167. Form of the Maeeiagb Ceremony, Capacity to Marry, and Marriages in Presence of Ambassadors and Consuls. [The laws of Scotland, England, and America all hold that a marriage celebrated in accordance with the lex loci actus is a valid marriage. But the rule is limited to the case of Christian marriage, and is not to be extended to the case of a ceremony such as is in use among savage or unchristian races. As Lord Brougham remarked in Warrender's case (1835, 2 CI. and Fin. p. 488), if there are two different things which in two different countries pass under the common name of marriage, the law will not invest the institution of the foreign country, which is essentially different from its own, with the same attributes and effects, merely because of the identity of its name. This doctrine was applied in a case where an Englishman, living in Bechuanaland, had gone through a ceremony with a native woman and lived with her for several years. The ceremony was one that was practised by the savage tribe to which the woman belonged, and did not confer on the woman the same status or rights as are conferred by marriage in Christian countries. It merely recognised her as a chief concubine. The man had not, however, taken any other wives or concubines. The English court, after the man's death, refused to recognise the union as a marriage, to the efifect of legitimating offspring (Bethell v. Bethell and Hildyard 1888, L.E. 38 Ch. Div. 220). But in a recent case (Brinkley v. ^'^ In our view persons, in Avhose own country ecclesiastical marriage prevails, validly contract a marriage before a clergyman of their own church, in another country, where civil marriage is the law. In truth, in that case, the clergyman is simply a privileged witness. If the parties could conclude their marriage before private witnesses, if their own law provides for this, why not also before a witness who happens to be a clergyman ? Finally, the only question of importance is whether the State to which the family belongs recognises the marriage. Fiore {§ xiii. p. 302) and Clunet (ihid. ) take a dififerent view. ^ § 171 of the Code Civil has made this useful practical provision, that marriages of French subjects which have taken place abroad shall be entered upon French registers. On such a matter international arrangements might very well be made. (See Pierantoni's proposition in the Annuaire, viii. p. 77, and art. 3 of the resolutions of the Institute at Lausanne.) The 171st section to which we have referred is, however, a lex imperfecta: it wants the necessary compulsitor on the spo.ises to make the entry (see on the different theories, Weiss, p. 652). NOTE H\ FORM OF THE MARRIAGE CEREMONY. 37 1 Att. Gen. 1890, L.K. 15 Prob. Div. 76) it was explained that by the term "Christian marriage" is to be understood not any particular religious ceremony, but a contract, the effect of which is to bind one man to one woman exclusively. Such a ceremony may take place in a heathen country, as in the case in hand, in Japan. In England, then, the marriage ceremony, if valid according to the Ux loci actus, is valid everywhere (Harvey v. Farnie, 1882, L.E. 8, App. Ca. 43). The doctrine has been thus expressed by Lord Campbell in the House of Lords : the forms of entering into a contract of marriage are regulated by the lex loci contractus, the essentials of the contract depend upon the lex domicilii: if these essentials, by which his lordship seems to mean the capacities of the parties, are contrary to the law of the domicile, the marriage, although duly solemnised elsewhere, is void (Brook ^. Brook, 1861, 9 CI. and Fin. 193). But, on the other hand, in contrast with the author's doctrine, the laws ■of England and America 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 (Westlake, § 17, p. 55, and cases there cited). The law of Scotland holds that a marriage is well celebrated if celebrated according to the lex loci actus (under the same limitation as to uncivilised countries as exists in England), and Lord Eraser (Husband and Wife, p. 1309) goes so far as to say, "The forms and ceremonies prescribed by the law of the place where the marriage is entered into 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." No authority, however, is cited for the proposition that -observance of the lex loci actus is imperative, and it is thought that the law of Scotland would not refuse to recognise a marriage celebrated abroad in such a fashion as would suffice to constitute a marriage in Scotland, in cases where both husband and wife were Scots people, i.e. domiciled in Scot- land. The law of Scotland requires no form of marriage : it recognises fully that consensus facit matriinonium,and requires nothing more than trustworthy «vidence of the interchange of that consent. That evidence may either be .supplied by regular certificates of marriage or the testimony of witnesses, or may be rested on presumptions, derived either from the cohabitation of the anan and woman with the habit and repute of married persons, or from a promise of marriage formed by copula. The last method requires a declarator ■of a competent court, and does not, with absence of such declarator, ^er se ■constitute marriage. The marriage contract being in Scotland so purely a matter of consent, and so entirely independent of form, it would seem, with all deference to Lord Eraser's authority, to savour of absurdity to hold that Scots persons must, if they desire to enter into their contract abroad, go -through the forms prescribed by the law of the foreign country. Is it to be 372 BAI^S INTERNATIONAL LAW. [NOTE H said that, while the interchange of consent openly before witnesses in Edin- burgh will constitute a marriage, the same consent cannot be interchanged before the same witnesses in Paris, and that the Scots court will refuse to uphold the same contract proved in the same way ? Lord Fraser cites no authority in support of his dictum, and principle seems to be against it. In further illustration of the same point, one may enquire whether, in the case of a marriage proved by the cohabitation of the man and woman with the habit and repute of married persons, that cohabitation must be in Scotland, and whether evidence of such cohabitation had in another country will be rejected. If Lord Eraser's doctrine is correct, the whole course of life, which is to be adduced to prove the existence of a marriage, would have to be in Scotland, and evidence of the same kind of life abroad would be inadmissible. But we find, in the case of the Countess of Strath- more (1750, Elchies Voce. Proof, and Paton, 6 H. of L. 684), that proof was allowed of cohabitation in Holland as man and wife, in an action of declarator of marriage, and the President of the Court (Dundas) referred to two precedents in which proof of cohabitation in countries other than Scotland had been allowed. No doubt, in these cases, the matter that was sent to proof was the conduct of the parties, which was said to be evidence', of a consent previously interchanged in Scotland. But the final question; to be settled in such cases must always be, was there consent ? If there was, the consenting parties are married, and geographical or political, boundaries cannot alter this fact. The law of one country may draw a different inference from the fact of consent from what the law of another- country does : one law will say it makes marriage, another will say that no one shall be held to so permanent and important a contract as marriage without some more solemn ceremonial. Now, in the case supposed, the Scots, courts are to consider whether a consent was given : they find sufficient evidence of that fact. They must then hold that the parties, both of whom are, ex hypothesi, Scots, consented to be married, i.e. made a contract to that effect. Any other contract so entered into would be valid if it accorded, with Scots forms. Why should this contract, proved as the law of Scot- land requires it to be proved, not receive effect ? A Scotsman is surely not to be allowed to break his contract, of which there is ample evidence,, because he made the engagement which constitutes it in another country.. If there is insufficient evidence of consent — and part of this evidence might, no doubt, consist in proof of his knowledge of the forms of the foreign law, and of their accessibility and his deliberate rejection of them — then there is no contract, and no marriage. But, given proof of the^ consensus, the fact of its being given in another country, does not seem sufficient to warrant repudiation of it in Scotland. The same kind of proof that was allowed in the Strathmore case, i.e. of' residence abroad as man and wife, was allowed in the case of Napier v. Napier (1801, Hume's Eeps. 367), although there, after consideration, it- was rejected as insufficient to prove habit and repute. Again, in the Breadalbane Peerage Case (Campbell v. Campbell, 1867, Ct. of Sess. Eeps.. NOTE R] CAPACITY OF THE PARTIES TO MARRY. 373 3rd ser. vol. v. (House of Lords), p. 115), proof was led and considered as to cohabitation in England. Under another class of marriages, viz. marriages inferred or presumed from a promise of marriage sidsequente copula, the same reasoning would apply, and is put by Lord Westbury in the case of Longworth v. Yelverton (Ct. of Sess. Eeps. 3rd ser. vol. ii. (House of Lords), p. 49, Lord Westbury, at p. 67). In that case it was held that it was necessary for the pursuer to show that both the promise and the copula took place in Scotland, but that was because the pursuer was an Englishwoman and the defender an Irishman, the law of Scotland being therefore invoked as the lex loci con- tractus. That being so, the whole transaction must necessarily take place in Scotland. The decision would have no application to the case of two Scots persons. 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 Government (Boyer v. Dively, 58 Miss. 510). Scotland and the United Slates determine 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 cele- brated for the express purpose of evading the restrictive laws of their domicile (Eraser, 1300, 1301). 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 (Sotto- mayor v. Barios, 1877, 3 P. D. 1). The principle seems to be that quoted above as enunciated by Lord Campbell in Brook's case, viz. that for the essentials of the marriage you must look to the law of the domicile. But where some requirement which is demanded by the law of the domicile as a mere impedimentum impediens is unsatisfied, the result is otherwise. Thus 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 L. J. Mat, 97). This decision is reconciled with that pronounced in the case of Sottomayor, by holding the consent of parents to be part of the cere- mony, and not a matter affecting the capacity of the parties. Belgium and France require in certain circumstances publication and registration of marriages, and the performance of what are known as actes respectueux. The English courts have recognised marriages of French people without observance of these requirements (Simonin u Mallac, ut sup), just as they had recognised Gretna Green marriages. But the French 374 bar's INTERNATIONAL LAW. [NOTE H courts, although they do not pronounce such marriages void, hold that they are, in the discretion of the court, voidable (Cibeins, 1886, J. xiii. p, 334; Cruypeninc, 1890, J. xvii. p. 487; see, also, J. xiv. p. 475, xv. p. 90, and xvi. p. 641). If the marriage has been celebrated abroad m/rattrf!em legis domesiicce, and in order to avoid publicity, then it will be annulled (d'Alinegro v. Louis, 1876, J. iv. 43, d'lm^court v. Musurus Bey, 1882, J. ix. p. 308). 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, 1879, J. vi. 486). 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 publication, being desirous of emigrating to America speedily, or where parties are resident in Brazil, and have no opportunity of observing French formsr while their conduct shows an absence of any desire for concealment (Pau- mier v. Jouard, 1879, J. vi. p. 281), and generally, where there is hoTia fides the marriage so informally celebrated secundum, legem loci contractus will be allowed to stand (Desaye v. Clement, C. de Cass. 1880, J. ix. p. 85 ; Lebon. 1879, J. ix. p. 205). For instance, where the parties have lived openly as husband and wife, neither they nor their parents can attack the marriage, even although it has been celebrated abroad in fraudem legis (Eouet, 1886, J. xiv. p. 66): acquiescence by the parents will import consent, and will bar one of the spouses from founding on the absence of it (Bonne, 1883, J. xi. p. 67). The omission of the actes respectueux cannot be pleaded by collaterals (Goux. ,1881, J. ix. p. 531). The want of registration and publica- tion, as required by French law, can only be pleaded by third parties who. have an interest in reducing the marriage : a husband who has lived with his wife as if they were married persons cannot plead this, his own fault or fraud (Bonn^ utsup. ; Gouzfene, 1881, J. ix. 534 ; Beaufils, 1877, J. v, 43). That the fiction of the ambassador's hotel being part of the territory of his country is not carried to its legitimate conclusions, 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 ambassa- dor is accredited, or between one native of that country and a woman of the 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 reallj 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 marri- age was held null by the Supreme Court of Austria, 17th August 1880 (J. viii. 171), 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 aiid Wife, p. 1539; see also J. i. p. 71. The same judgment was repeated' by a French court, 1889, J. xvi. p. 836.) No doubt English courts have held that marriages celebrated in the § 170] MARRIAGES BEFORE AMBASSADORS. 375 residelice of an ambassador of England, where only one of the parties is English, are valid, 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 Lushington, in Lloyd v. Petitjean, 1839, 2 Curteis, 251 ; see also 12 and 13 Vict. c. 68, and 31 and 32 Vict. c. 61) ; 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 internationally 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.) By a statute of 1890 (53 and 54 Vict. c. 47), it is declared (§1) that marriages celebrated in the houses of British ambassadors abroad, " between parties of whom one at least is a British subject," shall be as valid as if celebrated in the United Kingdom. By the 4th section the same declaration is made as to similar marriages celebrated on board a Queen's ship on a foreign station. The remark just made on the old statutes applies equally to the provisions of this Act, viz. that the result is that such marriages will be good in England and nowhere else. By the 9th section it is provided that Her Majesty may prohibit or restrict the exercise of the powers conferred by the Act or the previous Acts on ambassadors, etc., " where the exercise of these powers appears to Her Majesty to be inconsistent with international law or the comity of nations, or in places where, in the opinion of Her Majesty, sufficient facilities exist without the exercise of those powers for the solemnization of marriages to which any British subject is a party." Another statute was passed in 1891 (54 and 55 Vict. c. 74) to regulate marriages celebrated by British ambassadors and consuls abroad, and contains various provisions to ensure the bona fides of the parties, and to prevent any abuse of the power of these officers. Infer alia, by § 8 an official shall not be required to solemnise a marriage, if he thinks that to do so would be inconsistent with international law or the comity of nations. His refusal, however, may be reviewed by the Secretary of State on appeal] C. DECLARATORS OF NULLITY. § 170. It is plain that, if an action is raised for annulling a marriage, an offence against the law of any of the States concerned will warrant decree, just exactly according as the observance of that law ■was necessary for the constitution or existe nce of the marriage.^ Impedi- 1 To the same effect Brocher, i. § 91 ; Weiss, p. 698. "We cannot discuss exhaustively the fjuestions on this point which arise for consideration, until we reach the subject of the compet- ency of courts in matrimonial matters. No doubt a defect in the form of the celebration, like any other ground of nullity, may be subsequently cured, e.g. by possession d'etat. That may ilepend upon the subsequent personal statute of the spouses, while the question as to form must for itself be tested by the lex loci. 376 bar's international law. [§ 170 meats, therefore, of a resolutive character are always good grounds for annulling the marriage, if the law of the country to which the husband belongs affirms their existence in the particular case. But if it is only the law of the wife's country which so describes the facts of the case, them there is not, according to the view I have adopted, good ground in every case for a declarator of nullity.^ We must remember that by the law of the United States, a scientific partisan of which, remarkably enough, is now to be found in Switzerland ^ in the person of Konig,* an action for annulling a marriage can only be raised on a plea of nullity which is recognised as sound, not only by the law of the country to which the spouses belong, but by that of the country where the wedding took place.^ ° It is, besides, to be noticed that the action for setting the marriage aside can, a« a rule, only be instituted in the courts of the country to which the sponses belong, or to which the husbamt belongs (see post discussion on the competency of the courts). Since the question will generally be one as to the right to plead some alleged impediment to marriage in such an action, the view by which the lex fori is the only law that can be applied comes to the same result as we have reached in the text. Most authors have no special discussion of the subject of action.* of nullity ; they speak only of actions of divorce. ' We have here to consider the provisions of § 54 of the Federal Constitution of 1874, which are not very clearly conceived, and are rightly held by Brocher to be very dangerous (Nova). Tr. p. 113). These are: "Sera reconmi comme valable dans touts la ConfSd^ration, le mariage coTiclw dans un canton ou ci I'Hranger, conformement A la legislation qui y est en vigeur ; " the 54tli article of the law as to civil status, of 24th December 1874, is in these teiTus : " Un mariage contracts A I' stranger, ne pent etre declari nul que lorsque la nulliti risulte en inSme temps de lir. legislation Mrangere et des dispositions de la prisente loi." Brocher (p. 166) very properly saya that the legislator, in making these enactments, has yielded too far to his desii-e to ensure marriages against challenge. * See Konig's propositions, §§ 6 and 7 ad fin. (Ann. de I'lnstitut, viii. pp. 72-74). On this other hand, see Muheim, p. 191 and note, with the Swiss jurists there cited. ^ A peculiar case was decided on 12th February 1882, by the Supreme Court of Illinois (Madelaine Roth v. Ehmann et al.). R, a subject of WUrtemberg, married Madelaine Roth hi 1855 in Chicago ; the spouses afterwards returned to Europe, and lived together as man and wife in Wiirtemberg. In 1873 the marriage was declared null at the husband's instance in Wiirtemberg, on the ground that it had been concluded without the man having obtained a special permission to be married abroad, which was at that time, by an ordinance of 1808, the law of Wiirtemberg. R married on 27th November 1873 Amalie S., and on 28th March 1874 concluded a marriage contract with her, on the lines generally of a community of goods during their joint lives, the longest liver to enjoy all, except certain provisions to children and a fe^v legacies. R died in 1876, leaving a considerable landed estate in Illinois. Madelaine, the first wife, claimed, as lawful widow of the deceased, a share of this estate in the courts of Illinois. Since the first marriage was undoubtedly good by the law of the place of celebration, she maintained the invalidity of the decree of nullity, at least in Illinois. The Supreme Court of Illinois refused her claim, because the spouses at the time of the decree of nullity were by force of their domicile subject to the courts and to the law of Wiirtemberg, and therefore the decree, as one affecting their status, must be valid all the world over. Two jndges however, dissented, and Justice Walker laid down that the Court of Wiirtemberg had no jurisdiction to declare null a contract concluded under the law of another country, i.e. the first marriage : that the judgment of the Court of Wiirtemberg was directly counter to the law of America ; if it were to be recognised, the result would be that a statute of Wiirtemberg could provide c%mi effectti that subjects of Wiirtemberg could not acquire land in America without permission of their own sovereign. (Pamphlet published at Chicago, Beach Barnard 1882. I have to thank the kindness of Messrs Rosenthal & Pence for bringing, it under my notice.) In one respect we must certainly concur with the judgment : it is not the courts of the § 171] DECLARATORS OF NULLITY. 177 If this proposition, or anything like it, were really to become interna- tional law in Europe, the smallest of the European States would have it in its power to render the matrimonial legislation of all the Great Powers a mockery, by introducing some lax legislation of its own ; or at least would ■enable anyone who could pay for an excursion or return ticket, and the •charges of a stay of a few weeks or months on its territory, to set his own law at defiance. An international matrimonial office might be set up at Monaco, just as there now exists there an International Gambling Bank.s It is very proper that jurisprudence should strive to lay down, as far as possible, principles which can carry the motto " hie et uUque," that is to say, we should, as far as possible, avoid the melancholy predicament that one and the same marriage is valid by the law of one State, and invalid by the law of another, perhaps an adjoining. State. With this end in view, •one is inclined to recommend to the legislation of each State a [certain measure of concession, or, as one might say, a rounding off of the corners of its own system, in the case where a marriage has been concluded abroad, and has substantially to subsist abroad. This consideration was at the bottom of the sketch which Brusa and I laid before the Institute of International Law in 1885, especially in so far as it dealt with impedi- ments to marriage existing by the law of the wife's country. But there is a long way between this and the recognition of a territory for international marriages, within which each and every kind of marriage, which is forbidden elsewhere, abductions, etc., may be legalised, so that the native State of the spouses, or the State in which they are for the future to live, will have to accept the most open neglect and contempt of its laws. I •cannot believe that it would prosper, and I doubt if the Great Powers of Elurope would be inclined to tolerate the sovereignty of every little State that chose to take up this position.'' D. BETROTHAL. § 171. It results, from the same reasoning as proves that the personal ■country in which the disputed marriage took place that are competent to pronounce decree of mnllity, but those of the State to which the spouses belong at the date of the action. They have subjected themselves to these latter. ' My respected colleague Konig certainly did not fully consider the perils to European States which would arise from his system. ' If the laws of particular States (cf. Code. Civ. art. 88) invest certain military officials, in an army stationed in foreign territory, with the functions of civil officials charged with matters ■of status, it is questionable whether they can celebrate marriages between soldiers and foreign women. Verger, pp. 133, 134, says Yes, and refers to French jurisprudence. (See, however what was said above, as to the competency of ambassadors and consuls.) He is, however, right in holding that such marriages, between soldiers and foreign women, can be celebrated by the •officials of the occupied territory. For the territorial sovereignty which has hitherto existed, and the consequent right of these officials, are not suspended by the military occupation. 378 .-mar's international law. [§ 171 law of the husband should be the legal test of marriage, that betrothal, which does not subject the woman to the personal statute of the man, and under which both parties still face each other with full rights the one against the other, must be tested by the personal law of both.^ It is only in so far as the form of the betrothal is concerned, that the rule "locus regit actum" is to be applied, and it is obvious that the judge must reject any suit founded on a betrothal, which is regarded by the law of his country as improper or indecent.^ But it does not at all follow that betrothals generally are subject to the law that prevails at the seat of the court.^ This cannot be deduced from the attribution of a coercitive character to the law that prevails there. The application of the rule " locus regit actum" is, in the case of a betrothal * above all other cases. ■■ If, therefore, there is a case of a real conflict of law, the decision mnst be in the defender's favour. E.g. suppose that by the bridegroom's personal law the betrothal is invalid, but valid hy that of the bride. If either raises a process, founding on the betrothal, the action must be-, dismissed. Cf. Duplessis, Consult. 20 (Oiuvres, ii. p'. 115). See judgment of the Sujireme Court at Stuttgart, 28tb June 1853 (Seufiert, vi. § 306). " By the provisions of the marriage law of Wiirtemberg, a valid betrothal can only be dissolved by a sentence of the Consistorial Court ; this provision is a law of a positive coercitive character, resting on reasons of morality, from which a woman, who, as a native of Wiirtemberg, is bound by it, cannot withdraw herself, on the ground that she has entered into a contract of betrothal with a foreigner, with a view to carrying out her contract in another country." See, too, Ct. of the Empire, iv. 2nd March 1885 ; same Ct. 7th July 1887 ; and Ct. of the Empire, ii. 21st October 1887 (Bolze, Praxis, i. § 43, V. § 10) ; the bridegroom lived in the territory of the common law, the bride in the territory of the Prussian Allgem-Landr. The Prussian Landr. is not, as a matter of course, held decisive of the question, whether the bridegroom can sue for damages, apart from any question of form which must be settled by the common law ; the point to be settled rather is, to what law did the parties intend to subject themselves ? (This form of expression seems- innocent.) It is at the same time, says the judgment, to be taken into account in what country the marriage was intended to be celebrated (carried out ?). 2 E.g. by art. 45 of the Austrian General Statute Book. ^ Unger, p. 192, is of a different opinion. * A judgment of the Supreme Court of Appeal at Celle, on 3rd February 1846 (Seufiert, v. No. 36), proceeds on the opposite theory. By the legal system of the Principality of Calenberg in Hanover, in matters of marriage and betrothal, of date 5-16th January 1733, it is necessary, to constitute a contract of betrothal that can be sued upon, that it should be preceded by the sanction of the parents on both sides, or of the grandparents or guardians, as the case may be, and that the betrothal should take place before two persons of repute, of whom one, in country places, is to be the clergyman of the locality. The judgment referred to lays down that the legality of betrothals of inhabitants of Calenberg is to be tested by the rules of that system of law, as positive rules, even in cases in which the betrothal takes place in another country, and the marriage is intended to subsist in another country. See, on the other hand, the judgment of the Supreme Court of Wolfenbiittel, of 8th March 1858 (Zeitschrift fur Eeehtspflege im Eerzogthum Braunschweig 1859, No. 2, p. 28), which applies the rule "locus regit actum" to. a betrothal of a Brunswicker and a foreign woman in a foreign country, and declares it good, although the law of Brunswick has special forms for betrothal, with requirements of its own, which must be observed, and the omission of which is threatened with punishment ; and these ceremonies were of course omitted in this case. See, too, Court of the Empire, iv. 4th March 1885 (Bolze, Prax. i. § 43, p. 10). See, too, an interesting judgment of Ger. Imp. Ct. (ii.), of 27th October 1887 (Dec. xx. p. 333), by which the law of the place of the intended domicile of the marriage is held to be regulative, as being the true place for the fulfilment of the promise which has been given. § 172] PERSONAL RELATIONS OF MARRIED PERSONS. 379 imperative, unless good faith and confidence are to be wantonly abused.^ ^ "^ E. PEESONAL RELATIONS OF THE SPOUSES DURIKG MAEKIAGE. § 172. No one will doubt that the personal relations of the spouses must be determined, while the marriage lasts, by the national law of thehusband.^ A change of nationality, or of domicile, as the case may be, gives rise at once to the rule of another law.^ We cannot look at the matter as if it were a mere contract, although no doubt the entering into a marriage is a kind of contract. The parties may marry or not, as they please : so far they are free : but if they do marry, they are not free to adopt some of the con- sequences of the married relation, and reject others ; the law itself, in truth, determines these consequences directly, and it certainly desires that the marriages of all who are its permanent subjects shall be regulated by its own provisions, irrespective of whether the parties may have at some past, time- belonged to some other State and its law. What I have just said applies to the capacity of the wife to act, which is variously dealt with in different legal systems, applies to her capacity tO' sue without her husband's concurrence, to the possibility of her being invested with a general power to that effect by her husband {Codice civ. Italiano, art. 134), etc. There can be no doubt that this is so in cases in which the national (or domiciliary) law, differing from the law of the transaction in question, gives the wife wider powers.^ But it is also the law, as the general consensus of opinion on the Continent of Europe rightly holds, in the converse case, where a wider capacity is accorded to her by the law of the place of the transaction than she enjoys by her domestic law.* We must however remark, in the first place, that the husband can only put in force any measures of personal constraint upon his wife, in so far as the law of the place of residence will allow. If, for instance, their domestic law allows him to lock her up, or to do so under certain conditions, he does not enjoy this power, if it does not exist by the law of the place of the wife's residence at the time. If our law forbids such a measure of force, and sets a higher value on personal liberty, it will regard force of ^ The law of betrothal is often passed over in expositions of private international law, Stobbe, § 34, note 1, agrees with the text. ' An action for solemnisation, of the marriage is only competent if the betrothal has this effect both by the lex fori and by the domestic law of both spouses. Stobbe, § 34, 1, and Muheim, p. 183, speak only of the lex domicilii of the defender, and of the lex fori. But if the pursuer is, in any case you like to take, not himself bound, the defender cannot be. ' On the import of betrothals in Germany, there is a gross error in Beach-Lawrence, p. 306. 1 Phillips, § 24, p. 189 ; Wachter, ii. p. 185 ; Weiss, p. 670. ^ See, in particular, Stobbe, § 34, note 7. * Laurent, v. § 61 ; Weiss, p. 674. Fiore, § 110; Weiss p. 675 ; C. de Chambery, 9th January 1884, Jour. xii. p. 180. 38o bar's international law. [note I that character as contra bonos mores, and our legal system can never hold out its hand to realise, what it regards as contra bonos mores or degrading.* On the other hand, however, a husband can never claim a higher right of compulsion over his wife, than his personal law gives him. If his personal law regards the married life rather as an affair of freedom and of good manners, the system of law of the place of residence has no reason for introducing, in the shape of constraint, a new element into the married life of two foreigners ; and all the less can it do so, as even by its own provisions it is left to the humour of the spouses to introduce that element into their life or not.* The second remark we have to make is, that whatever the law of the place of residence regards as the bounden duty of mankind as between spouses, must be recognised by them, so long as that residence endures, irrespective of any different rule laid down by their personal law. This rule is specially to be kept in view in questions as to aliment. If a man was released from his obligation to maintain his wife, because his personal law knew of no such obligation, or ignored it in the particular circumstances of the case, a foreign wife would now and again require to be supported at the expense of the poor's box.' It is true that this obligation ceases so soon as the husband quits the territory. But, on the other hand, the measure of it, where it does exist, is at the least the extent to which the personal law of the husband recognises it.^ There is no ground on which the law of the place of residence should hinder the operation of a more extensive duty of support sanctioned by his personal law. NOTE I ON § 172. PERSONAL RELATIONS OF THE SPOUSES. [The French courts hold that the personal relations of the spouses are determined by the law of the husband's domicile (Caro v. Caro, 1875, Jour, iii. p. 182). In other judgments there had been a question whether the law of the husband's nationality or that of his domicile should prevail in such matters (Bronski v. Bronski, 1876, Jour. iv. p. 237) ; but the final decision, and the law accepted at present, is in favour of the law of the domicile, and an exception 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 ' Laurent, v. p. 110; Story, §189; "Weiss, p. 672. See, too, Civilprozessordnung des Deutschen Beichs, § 774, Div. 2. « Laurent, v. p. 113 ; Weiss, p. 672. ' Laurent, v. p. 185, takes a different view ; Brocher, i. p. 297 ; Olivi, Rev. xvii. p. 55. See on the other hand, and in agreement with the text, Aubry et Eau, i. p. 82 ; Fiore, § 109 ; Weiss, p. 677. Thus the courts of a country in which a foreigner is residing are competent to decern against him for aliment. Trib. Seine, 31st August 1878 ; C. Paris, 3rd August 1878 (Jour. vi. p. 66), agrees with our conclusions. Clunet (Jour. vi. p. 67) has very sound observations on this point. ' To the same effect, Weis», p. 678. NOTE 7] PERSONAL RELATIONS OF MARRIED PERSONS. 38 1 law, where there has been an intention of making a home in France, that intention being indicated by the establishment of a business in France (Camous v. Ghisla, 1878, Jour. v. p. 610). In that case the place of the matrimonial domicile was held to determine all the personal relations of the spouses ; and in the later case of Kowalski v. Kowalski (1879, Trib. Civ. de la Seine, Jour. vi. p. 550j, 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 determine the husband's liability for aliment. Equity has established 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. infra, p. 399 et seq.) In the law of England (Westlake, p. 61) and in that of Scotland (Fraser, p. 1318) the personal relations of the spouses must be determined by the law of the forum, in so far at least as such rights are of the description dealt with in the text. According to Story, § 198, the domicile of the- marriage, or, if that is not clear, the domicile of the husband will rule. The result in practice will probably be found to coincide pretty much with the doctrine of the text, because wives claiming aliment or demanding protection will resort to the forum of the place of residence, while these courts will not determine any question of rights so as permanently to affect the marriage relations unless they have jurisdiction ratione domicilii.] F. DIVORCE. § 173. Divorce, and that permanent judicial separation, which in many respects is equivalent to it, recognised by those systems of law which have no real divorce to the effect of completely dissolving the marriage tie, are subject to the national law, or 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 ■■ Bnrge, i. p. 689 ; Stobbe, § 34, note 11 ; Wharton, § 223 ; Fiore, § 131 ; Brocher, i. § 96 ;. Weiss, p. 705 ; Laurent, v. § 119. 382 bar's international law. [§ 173 just as much an offence against morality.^ This conflict, according to which the law of the nationality or domicile would be applied on the one hand, while the lex fori is applied on the other, is solved by the consider- ation,^ that in actions of divorce — unless there is some express enactment to the contrary — the judge of the domicile or the nationality is the only competent judge,* while we cannot allow the parties the option of submitting themselves to the law and to the courts of another country, since it is not in their power to deal as they please with the relation which is the subject of the action.^ A decree of divorce, therefore, pronounced by 2 Walter, § 42 ; Schiiffner, p. 159 ; Savigny, § 379 ; Guthrie, p. 299 ; Story, § 227. Cf., too, the judgment of the Court of the Empire, iii. Sen. of 22nd April 1884 (Entsch. xi. p. 29) ; according to § 77 of the Imperial statute of 1875, German courts can only decree dissolution absolutely, and not separation a mensa et Ihoro, even although by the native law of the parties the latter is the only known form of interfering with the marriage. (Judgment of the Imp. Ct. 19th June 1883, Entsch. ix. 192.) ^ Cf. Durand, § 175 ; Bard, § 147 ; v. Martens, § 72, who, however, under note 96, makes an exception of which we shall take notice. * Although a decree of divorce cannot be pronounced by a court whose laws do not recognise divorce, a decree of divorce pronounced by a competent foreign court must have its proper consequences, even in a country whose courts have no such powers. Accordingly, in such oases, the foreign judgment may be declared executory. See App. Ct. of Rome, 1884 ublic," and thus a court may be prevented from bringing foreign law directly into play. *^ On the other hand, Pilicier's attack upon Frencli practice, and in particular that of the 'Court of Cassation, by which the merits of any action of divorce will be tested by French law, if the parties have a domicile authorised by the Government in France, is very well justified. In this matter French practice abounds in illogicalities and contradictions. We cannot give an absolutely clear exposition of the points raised in this connection, until we come to the •discussion of the competency of the courts of different nations. See Chavegrin, Jour, xii.- p. 154, and Pilicier, pp. 34-91, on the details of French jurisprudence in this connection. 396 BAI^S INTEKNATIONAL LAW. [§ i78 The second paragraph proceeds thus : — " Mais une fois le divorce admis en principe par la hi Tiationale, les ca^ises qui la motivent doivent itre celles de la loi du lieu ou I'action est intentde.'' The court, then, before which an action for divorce is brought, must aslc itself this question, viz.: Does the national law of the parties permit divorce; under any conditions at all ? If this question is answered in the affirmative, then it simply applies the lex fori. That is, of course, a simplification of procedure which will be very pleasant for the court, since the question w& have put may, as a rule, be answered without any trouble, whereas yerj serious difficulties may arise in attempting to say whether some particular fact is, by the domestic law of the spouses, a sufficient ground for divorce^ But this must be kept in mind, that it is not divorce in absiracto that is the important matter : the question of much greater importance in practice is, what are admissible grounds for divorce ? ^ Compare for a moment the strict law of divorce which obtains in England with the lax principles of; the Prussian AUgemeines Landrecht, which permit divorce by mutual consent, and it will be conceded that it is just when one looks at the- particular grounds for divorce that the fundamental differences of social theory are brought out. "We cannot possibly proceed, therefore, on the footing that the State to which the parties belong, whose recognition of the divorce is as a matter of fact of most importance, will have no interest in- the grounds of the divorce, no interest beyond seeing that there is agreement, between the two systems on the abstract question of principle. On the contrary, it is highly improbable that the legal systems of different countries- will allow the subsistence of the marriage ties of their subjects to be dependent on the laws of a foreign country; and thus this proposition, which is in juristic illogicality almost without precedent, will operate- as an actual impediment against the general adoption of the Heidelberg; resolutions. ^0 doubt the rule will have a less extensive importance, if the compe- tent tribunal, which is spoken of in the third paragraph of No. vii., is to be exclusively or generally that of the State to which the parties belong. Then the last proposition of the Heidelberg resolutions, in itself highly desirable, will be realised, viz. : — " Le divorce ainsi prononce par le tribuTial competent sera reconnw- partout." On the question of competency, the Institute has not as yet given anj^ deliverance, and has not adopted the rule of Konig's scheme, according to- which the competent, and only competent, judge shall be the judge of the domicile.^^ ^^ '" If we proceed upon the omnipotence of the legislative authority, which may assume, too, a judicial character, a type of which character in this very matter of divorce may be found in the divorces granted by the legislative authority of the English Parliament, we may go the- length of asserting, although it would no doubt be something of a refinement, that divorce in abstracto is not excluded by any system of law. ^' In KSnig's scheme the 12th article bore ; La question de savoirsi un divorce est Ugalemcnt admissible ou nan dipend de la Ugislalion nationale du mari. Mais une fois le divorce admisi § 179.] • FEASIBILITY OF AN INTERNATIONAL TRIBUNAL? 397 When the resolutions on the law of marriage, which were adopted at Heidelberg in 1887, were revised at the meeting of the Institute at Xausanne in 1888, the seventeenth and eighteenth paragraphs of the Tegulations finally adopted were thus expressed, viz : — " (17.) La question de savoir si un divorce est Ugalement admissible ou nan ■depend de la legislation des djootix. "(18.) Si le divorce est admis en principe par la loi nationale, les causes •gui le motivent doivent Stre celles de la loi du lieu ou I'action est intentde. JjC divorce ainsi prononci par le tribunal competent sera reconnu valable ;partouf." As the question of jurisdiction is entirely reserved, the meaning of these jjropositions is left completely undefined. An International Tribunal for Matrimonial Questions ? I 179. Lastly, we must say that a proposal of Lehr (J. xi. p. 49), in iavour of which Weiss has pronounced (p. 717), is not satisfactory. He proposes to set up a general international court to decide matrimonial suits in which questions of private international law are involved. In the form in which it is put forward, this suggestion seems somewhat vague. This much, however, is certain, that an international tribunal of the kind would mean, owing to the enormous distances at which parties might be from the seat of the court, a complete denial of justice. Again, the decisions of all courts on questions of private international law must in practice rest primarily on the legal principles of their own country, but, since in every case that came before this international court there would probably be a majority of judges belonging to countries different from that to which the ■case belonged, there would be imminent danger that the law of that country would not be respected. We could hardly, therefore, expect the «n principe par la loi nationale, les causes qui le motivent doivent Ure celles de la legislation du domicile du mari ; lejuge compUent sera celui du domicile." The theory thus put forward by Xbni" may be looked upon as a modification of what was proposed by Barilliet (J. vii. p. 361) ; the Swiss judge {judex domicilii) shall apply no law but his own {lex fori). Pilicier, p. 98, .shows very clearly the serious consequences of this view, if the State to which the parties ibelong does not recognise such divorces, as e.g. would be the case with Italian subjects. 52 Yery recently KSnig has again modified his opinion (see opinion cited above with reference to the alteration of the law in Switzerland). He refers to the authority of Rossi, and his new proposal is "that in divorce suits by foreigners, whose law allows divorce, the -tribunal of the domicile be generally recognised as the proper tribunal, and that divorce may he granted on grounds which are recognised by the law of Switzerland as well as by the law of the country to which the spouses belong." In this way a probability approaching certainty is -attained, that the Swiss decree will be recognised and executed abroad. In one respect, this is no doubt much less serious than the proposal of KQnig which was formerly adopted by the Institute of International Law. But practice may well show that very great difficulties will ha involved in keeping two different systems of matrimonial law in view at once. For instance, what is to be said of the res judicata, if the action is thrown out 1 Does this dismissal of the ..action take effect de piano in the country to which the spouses belong ? 398 bak's international law. [§ 179 legislative powers of the dififerent States to hold out a helping hand to any such arrangement, and all tlie less so, as in matrimonial law the differences of opinion are differences as to social and moral problems. The case,^* cited by Lehr as an illustration of his proposal, rests in part simply on an error in the legal system of one of the countries concerned, viz. the error of the law of Hungary in refusing to apply the familiar rule " locus regit actum"' to cases where there is a conflict between religious and so-called civil forms of celebration of marriage. Where errors like this exist in legal systems, the necessary result is that the courts will fall into erroneous conclusions. But, again, the official at Zurich who celebrated the marriage fell, as is- pointed out in the judgment of the Federal court, into error. He gave na thought to the possibility of the rule " locus regit actuvi " not being recognised by the law of the country to which the parties belonged. Now, is it intended, that this international tribunal, whose very name seems to many to guarantee relief to all the evils known to the law, shall have power tO' amend and alter laws ? We do not mean to say that a decision pronounced in accordance simply with sound reason — a course which Lehr points at for the case on hand — would not, where you find a foreign law that is contrary to all good sense, be preferable in the long run to the decision of the Swiss Federal court, which follows too closely the letter of the statute. But it may seem very doubtful whether the Swiss courts had any power tO' pronounce so broad a judgment. We must, however, admit an exception to the rule that none but the: courts of the State to which the spouses permanently belong have- jurisdiction in such matters, in cases in which it would de facto lead to ». real denial of justice to declare that there was no jurisdiction in the courts, of the domicile : and in using the term domicile we may perhaps (?) place- in the same category a place of residence for a considerable time.^ But such a case cannot be held to arise where some definite foreign nationality or citizenship is patent on the face of the facts, or where the defender pleads such foreign nationality as a ground for urging that the court is- 5' J. xi. p. 483 (case of Bacs). A Hungarian citizen married in Ziirich a Swiss woman according to the forms of the civil marriage, whereas the law of his own country absolutely forbids civil marriage. The Hungarian consul thereupon declared that the marriage would be- regarded in Hungary as non-existent. Upon this the court of Zurich rejected an action of divorce raised by the husband, founding on the 56th article of the Swiss statute, and the- Federal court refused an appeal. This determination was sound, for a marriage, which by the- law of the parties' own country has no existence, cannot be dissolved, and a divorce which has followed on such a union cannot be recognised by the country of either. The simplest course- is to treat the marriage in such a case as ipso jure null, and that is the import of the declaration of the Hungarian consul. That is so because the proper ceremony, i.e. the ceremony which will be recognised by the parties' own State, has never been observed. The solution given by Muheim (p. 199) is peculiar, but not very scientific. Divorce, in cases in which the law of the parties' own country pronounces the marriage to be altogether invalid, should proceed according to the law of the country in which the marriage took place. The divorce will then simply dissolve the ceremony or form of marriage, the marriage itself having no real existence. See Kittner (J. xii. p. 152) on the Bacs case. ^ See Trib. Marseille, 23rd April 1875 (J. iii. p. 186), and Clunet's remarks there, on the- most modern French jurisprudence. 399 § 180] BARS TO MARRIAGE. incompetent. The courts of France are inclined, in cases in which the interest of foreign spouses are involved, to declare in favour of their own jurisdiction, if the objection to their jurisdiction is not timeously put forward.55 This goes too far. In that way jurisdiction will be founded by a voluntary subjection by the parties themselves, and in matrimonial questions in the stricter sense such a voluntary prorogation of a foreign court and its law is forbidden by the general conceptions of the le^al systems of all civilised States.^^ The jurisdiction of the judex domicilii, however desirable it may be in itself, is, in our view, as a rule only to be recognised under special conditions, whereby the application of the national law of the parties is really secured, conditions which we shall discuss on another occasion. They can only be provided by means of positive enactment. Decisions upon Bars or Oppositions to Marriage. § 180. A special question of jurisdiction may be raised in such cases as those in which the officer charged with the care of matters affecting status- refuses to celebrate the wedding, or where some third person raises. opposition to the wedding (Cod. Civ. § 172), or where some rectification of a register is desired. The primary question here is as to an act of the- public executive, or an order which ought to be given to a public official.. The officers and courts of the State, in whose territory and by whose- officials the act in question must be done, are alone competent in such matters.^'' It is, too, the law of this latter State which prescribes what officials and what courts are competent, and they may also prescribe that, the courts of this country are competent in the case of foreigners who have a domicile, or even a mere place of residence, in this country. Of course, if the official who is charged with matters of status can only perform the act which he is desired to perform, if, for instance, there shall have been ai valid judgment pronounced as to the nullity of a marriage, so that this nullity is not to be regarded as a merely incidental or prejudicial point;; then this condition precedent to the official's action belongs to the foreign court, provided always that that foreign court would at anyrate- be the only court competent to decide in this process of declarator of nullity. NOTE K ON §§ 173-180. INTERNATIONAL ASPECTS OF DIVORCE. [As regards the grounds on which a decree of divorce may competently be pronounced, so as to be recognised by the courts of other countries, it 55 Competency of the French courts, where no definite nationality can be asserted (Trib.. Civ. Marseille, C. d'Aix, 3rd July 1873, J. ii. p. 273). This is probably sound. C. Dijon, 7th April 1857 (J. XV. p. 87). 56 Cf. e.g. B. C. Rouen, 12th May 1874 (J. ii. p. 356), and the special paper on this subject by Feraud-Giraud in J. xii. pp. 379 et seq. prces. 390. w See Gentet, p. 72. 4O0 bar's international law. {note K Las been laid down in the House of Lords (Harvey v. Farnie, Nov. 30, 1882, L.R 8, App. Ca. p. 43), that the decision of a competent foreign Christian tribunal, dissolving a marriage celebrated in England between an Englishwoman and a domiciled native of the country where the divorce ■was pronounced, will be recognised, although that decree proceeds upon grounds that may not be known to the law of England as grounds for divorce, e.g. upon desertion as that term is understood in the law of Scotland. This decision disposes of the old notion of the indissolubility of an English marriage, ie. of the notion that a marriage celebrated in England could only be dissolved by English courts and in conformity with English law. It also seems to determine that the law which the competent ■court is to apply is to be the lex fori. This, then, may be taken to be the law of both England and Scotland, viz. that the competent court must a,pply its own law to determine what is or is not a sufficient ground of ■divorce, and that a determination on this ground will be recognised in JEngland and Scotland. The important matter for determination in these countries is, therefore, what is the competent court, or, on what considerations is the jurisdiction •of a divorce court to be founded ? In determining on what principles the courts of any country will sustain their own jurisdiction in divorce or ;separation, 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 the foreign country before they will recognise 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. All courts, too, especially those of America, will take care before recognising .a foreign decree to see that it was not obtained without due notice and the observance of the regular forms ; cf. Shaw v. Att. Gen. (1870, L. E. 2, P. and M. p, 156), where the husband had no notice of the suit " except .an advertisement which he never saw and was never likely to see ; " and ^ case decided by the Appeal Court of New York (People v. Belker, 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. It will, then, be understood that a court, in exercising its own juris- ■diction according to certain rules, implies thereby that it will recognise ■decrees of foreign courts based upon like jurisdiction. The only principles of jurisdiction now recognised are nationality, domicile, and what has been called matrimonial domicile, i.e. residence of .such a duration and of such a nature by the spouses as married persons within any territory, as to justify either of them holding that their matri- monial 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. The jurisdictions formerly claimed in Scotland by virtue of a residence by the defender for IfOTE K] JURISDICTION IN DIVORCE. 401 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, Ct. of Sess. Eeps. 4th ser. ix. 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 permanent status of the parties. 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 jurisdiction and determining capacity, but is also accepted as sufficient in France, Belgium, Italy, and countries where nationality and not domicile is the ordinary criterion for determining the istatus, capacity, and personal rights of every individual, and establishing jurisdiction. The American courts in New Jersey have refused to enter- tain 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 v. 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, 25th April 1878). A Frenchman who married a Belgian, and afterwards lived for twenty years in Belgium, was held to have acquired a domicile ithere, 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 -jnarriage (Viminet, C. de Bruxelles, 1877, J. v. p. 513.) In this case there -was complete lona fides in the residence in Belgium, an important con- sideration, as we shall see. The domicile in such cases is always the ■domicile of the husband, which is imputed to the wife. (In England, Eatcliff, 1859, 1, S. and T. 467; Wilson, 1872, L. E. 2, P. and M. 435. In :Scotland, Warrender v. Warrender, 1835, 2, C. C. and Fin. 488; and 2, SL •and M'L. 154 ; also Low, 1891, Ct. of Sess. Eeps. 4th ser. xix. p. 115.) In France the 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. Civ. de la Seine, 1880, J. vii. p. 303). 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, 1872, J. v. p. 386). There is also accepted, as a ground for founding jurisdiction 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 Iiusband, from being a foreigner, and only in Scotland on the public 2c 402 bar's international law. {note K service, may never have acquired a domicile of succession in this country " (per Lords Neaves and Mackenzie, in Jack v. Jack, 7th Feb. 1862, Gt. of Sess. Eeps. 2nd series, 467). "The impossibility of resting jurisdiction in divorce exclusively on the domicile of succession, is obvious from other considerations equally cogent and conclusive " (per Inglis 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 " matri- monial domicile," as it has been called, is not a good ground on vrhich 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 t. Stavert (cited supra) :. " Now, a very important question arises in some such cases, whether the- domicile 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 settled home of the marriage for some period with no intention 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 ia 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, Lord Deas and Shand, in the same case, held that a complete, domicile would be necessary. In the subsequent case of Low in 1891 (see supra), the doctrine of matrimonial domicile is rejected. 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 England, is resident there, not on a visit or as a traveller, and not having taken up that residence for the purpose of obtaining or facili- tating 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." Of. Niboyet, 1878,. L.E. 4, P.D. 1, the tendency of which decision is to make residence and not domicile the ground for jurisdiction. In Detchegoyen's case (1888,. L.E. 13, P. and D. 132), Sir James Hannen says: " Apart from the events, which have since happened, I should strongly incline to think that, where a man leaves his wife, returning to her from time to time, that is the place of the matrimonial home." In that particular case, England was found to- be the true domicile of the husband, and therefore of both spouses, but. NOTE K\ TVRISDICTION IN DIVORCE. 403 a " matrimonial home," which would give the court jurisdiction, appears to be recognised as something distinct from domicile. The necessity of recognising in such matters some special ground of juris- diction, less stringent than the personal law of the husband, be that the law of his domicile or the law of his nationality, has been indicated by the following decisions of Continental courts : — Such a domicile can be acquired without the loss of a foreign nationality (Cour de Cassation, 11th 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, 1875, J. iii. p. 185); domiciled foreigners will, in the discretion of the court, be allowed to sue in French courts for sijparation de corps, the French law not sanctioning divorce, if neither party objects to the jurisdiction, if public order and morals are not offended, and if the French court is forum conveniens (Mazy v. Jolly, 1878, C. de Nancy, J. v. p. 371) ; in Switzerland, domicile will confer such jurisdiction without naturalisation (App. Court of Geneva, 1876, J. iii. p. 227), and by a diplomatic convention of 1869, French and Swiss courts have con- ceded to each other mutual jurisdiction of this character. This has been observed in the Swiss decision just cited, and by the Court of Cassation in France (Benweguen, 1878, J. v. p. 450), This doctrine of "matrimonial domicile " has also been applied by the French courts to this effect, that a woman who has lived with her husband for a considerable period in France, or who has been married in France, with a French marriage con- tract, is entitled to appeal to the French courts for a separation, although the husband has gone abroad ; the object of his departure being to with- draw himself from French jurisdiction and to embarrass his wife in the pursuit of her remedies (Eamondenc, C. de Cass. 1875, J. iii. p. 183 ; X. Cour. de Chamb^ry, 1877, J. v. p. 164; MuIHer, 1886, J. xiii. p. 349) ; and even where a man has been naturalised in a foreign country, if this has been done with the object of obtaining a divorce under a foreign law, which may operate prejudicially to the law of the home of the marriage to which the wife is entitled to look for protection, he will not be heard to plead that the French courts, to which his wife has had recourse, have no jurisdiction, Agoust, 1882 (J. ix. p. 544). 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. Eeel, American Eeports, 414). That separate domicile, it would appear, however, must be in a country in which the marriage has subsisted and the parties have lived as man and wife. A deserted wife cannot, by returning to her forum originis and acquiring a domicile there, the marriage never having subsisted in that cuuntry, thereby raise up a right in herself to convene her husband before the courts of that country, in a process of divorce (Redding, 1888, Ct. of Sess. Eeps. 4th ser. xv. p. 1102). The law of Italy recognises the competency of its courts to dispose of questions of divorce raised by persons who have a home or settlement in 404 bar's INTERNATIONAL LAW. {NOTE K Italy, which does not amount to a true domicile (Trib. Ancona, 1882, J. xi. p. 553). This temporary residence or matrimonial domicile (or, it may be, natur- alisation in countries where nationality is a ground of jurisdiction) must, however, be genuine, and not acquired collusively (Westlake, ut supra) ; but. if a true domicile is acquired, it matters not, in Scotland at least, that one of the causes which induced the acquisition of it was a desire to take advantage of the divorce law of the country in which it is acquired (Carswell, 1881, Ct. of Sess. Eeps. 4th ser. viii. p. 901). To prevent collusion, and to protect public morals, the Minister of Justice in France will intervene (Eaunheim, 1875, Trib. Civ. de la Seine, J. iii. p. 36o) ; where a French couple fraudulently acquired Swiss nationality in order to obtain divorce, neither of them having ever left Paris, a second marriage contracted by one of the spouses was 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, 1877, J. v. p. 268). Another case of the same kind is reported, where a Prenchman, already separated from his wife, obtained Swiss nationality in December 1874, and was divorced in the Swiss courts in Januarv 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 Vallees, 1878, Trib. Civ. de la Seine, J. v. p. 602). 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, 1877, J. v. p. 513); and in the case of the Princess Bauffremont, 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 nullity of the marriage contracted by her abroad, if she should again return to the juris- diction of the Austrian Courts (Supreme Court of Austria, 1871, J. iv. p. 77). Again, in 1885, the same court held that without a change of nationalitv an Austrian subject could not validly have his marriage dissolved by a foreign court (J. xiii. p. 471). In this case the husband had renounced the Catholic faith, while the wife had not, and a second ground of judgment which suggested itself to the court was that, so long as one of the spouses remained true to the Catholic faith, her marriage must be indissoluble ; if ^181] PROPERTY OF THE SPOUSES. 405 the marriage was indissoluble as regarded one spouse, it must be so as regarded the other. These judgments,- in treating Austrian marriages, celebrated according to the rites of the Eoman Catholic Church, as indis- soluble, seem to be tainted with the same error as at one time prevailed in England, viz. that an English marriage was not liable to be dissolved under any circumstances whatever. Where the spouses are, both or either of them, Protestants, the Supreme Court of Austria recognises a divorce pronounced by the court of their domicile (J. xii. pp. 157, 158). French law, although it knows nothing of divorce, accepts liberally foreign judg- ments, where there is jurisdiction. Thus the courts of France will still recognise the effect of a divorce pronounced in a foreign court having jurisdiction, where one of the parties is French, and will 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 ou domicile, the cases that have occurred have all 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 French- man by nationality had obtained divorce abroad after a 'bona fide residence of some duration (Brune de Mans v. Guillamnin, Trib. Civ. de Nogent-le- Kotrou, 1878, J. vi. p. 277; Plaquet v. Maire de Lille, Cour d' Amiens, 1880, J. vii. p. 298; two French persons divorced in Belgium, Lufert ■;;. Roquet, 1887, J. xv. p. 86, see p. 279 ; and Plaquet, Cour de Cassation, 1878, J. V. p. 499. 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 (1872, J. i. p. 31) 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. In 1887 the Tribunal of the Seine went so far as to recognise the decree of a Belgian court divorcing two French people (J. XV. p. 86). But the soundness of this decision seems to be questioned by French lawyers (J. xv. p. 279).] G. BELATIONS OF THE SPOUSES AS REGARDS PROPERTY. The Pkinciple. The Personal Law, generally speaking, the Eule. § 181. Private international law contains under this head a long list of important and difficult questions. Let us assume, in the first place, for simplicity's sake, that the spoures Jiofore marriage belong to the same nation, that there is no difference in their domiciles to call more than one law into play, and still further, that their domicile and the place of the celebration of the marriage are identical. Now, the oldest of all debated questions, which has been discussed since the days of the Postglossatores, at once arises : Does the law of property, applicable to the case of mamed persons according to the legal system of the domicile of the spouses, extend to real property which lies beyond 4o6 bak's international law. [§ 181 that territor}-, or is the lex- rei sitce the exclusive rule ? ^ Jurisprudence has been much occupied with this question in particular, viz. whether a community of goods established by the law of the domicile of the spouses attaches to real estate which is situated in another country. Moveable property has always been treated under the rule "mohilia personam, sequuniur," and thus moveables situated in another country have been subjected to the personal law of the spouses. In the Middle Ages the application of the lex rei sitce ^ was always defended on the ground that the laws which are concerned with the property of married persons speak of things only, and not of persons. We need not spend much time on this illusory and purely scholastic reasoning, any more than on the argument 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 sitce, some definite real right to such a subject cannot be constituted at all, or must be constituted in u 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. par- ticular form prescribed shall be observed, as the case may be.^ But this does not affect the question before us. The recognition of the lex rei sitce is even at the present day the only rule known to the practice of England and the United States,* and is generally adopted, too, iii that of France.' In England, however, there is an inclination towards the view that the lex domicilii is universal : the theory of English writers certainly leans in this direction, and to some extent also the practice of English courts.* The opposite theory, which had even in more ancient literature a considerable number of representatives, regards exclusively the personal law of the spouses. At the present day it may be said to hold absolute ^ All agree that tlie place of the celebration of the marriage does not decide. See Savigny, § 37&; Guthrie, p. 292; Story, §§ 191, 199; Maevius in Jus. Zut. Froleg. qu. 4, §§ 19, 20. ^ Argentrffius, § 31; Burge, i. p. 617; Wheaton, i. p. 113; Masse, ii. § 63, 3 Gaill, Observat. ii. 124, No. 4. * See Story's Citation.s, § 148.. ' This is no doubt the meaning of the 3rd art. prop. 2, of the Code Civil. Cf. Demtingeat on Tfcelix, p. 214. « See "Wharton, § 191. '' See citations by Weiss, p. 692, note 2. It is the old statute theory wliich is followed here. ' Cf. Westlake Holtzendorff, § 31, and Lord Meadowbank's dictum there quoted. ["The legal assignment of marriage operates without regard to territory." Royal Bank of Scotland V. Ass. of Stein, Smith & Co., Jan. 20, 1813, F.C.] Phillimore, iv. § 34o". 407 § 181] PROPERTY OF THE SPOUSES. sway in Germany ,» i" and the new Italian school of course adopts this view. It takes different ground, however, on which to place it, and deduces different results from it. Some writers regard the law of married persons' property as the direct outcome of national customs and arrangements. In that view, of course, the rule must he given not hy the domicile, but •exclusively by the law of the nationality to which the husband belongs, for it is this law which prescribes generally the organisation of the family.^^ Others, again, treat the law of married persons' property as a product of the free will of the spouses. We must infer this will from the circum- stances, and it must besides have an universal and an extra-territorial operation. The result of this theory is to leave us hesitating to some extent between the national law of the husband,!^ the law of his domicile at the moment when the question arises,^^ the law of a domicile which the husband means to acquire so soon as the marriage takes place,^* and possibly even the law of the place where the marriage is celebrated, especially in cases in which the spouses have lived a considerable time before the celebration of the marriage in this latter place.^* ^* This last 5 Seufifert, Comm. i. p. 237 ; Walter, § 46 ; Reyscher, i. § 82 ; Bouhier, cap. 26, § 3 ; Eich- horn, § 307 ; Mittermaier, § 350 ; Goschen, i. p. 112 ; Holzschuher, i. p. 84 ; Wening-Ingen- heiin, § 22 ; Giinther, p. 731 ; Miihlenbruch, i. § 72 (who founds on Dig. de jud. 5, 1, L. 65, a passage which, however, speaks merely of the competency of the court, and not of the appli- cation of the local law). Stobbe, § 34, No. v. " It will, of course, be understood that at the present moment the domicile theory is the prevailing theory in the subject of married persons' property. But to dbtermine such questions by the law of the domicile, lands us at once in difficulties. Is the domicile of the husband at the time the marriage was entered into to decide, or is it to be the dotnicile which he intends to take up immediately after the marriage ? A decision of the Reiohsoberhandelsgericht, of 26th March 1876, takes an alternative position on this question. Brocher, too, Nouv. Traiti, % 225, calls attention to the doubts to which the principle of domicile gives rise. There are many cases in which the spouses themselves could give no definite answer to the question, where they propose to fix their domicile. " So Fiore, § 325 ; Lomonaco, p. 96 ; v. Martens, § 73, p. 313 ; so, too, Feraud-Giraud (J. xii. p. 386). In Austria-Hungary, Vesque v. Piittlingen, p. 238 ; Revised Statute Book for the Canton of Zurich, § 3, and in addition Schneider Comm. In Ziirich there is a very proper recognition of the connection between the law of married persons' property and the law of succession as a factor in this question. ^^ E.g. Laurent, v. § 66 ; Weiss, p. 693 ; Durand, p. 338 ; C. de Bourdeaux, 2nd June 1875 (J. iii. p. 182, and Clunet, J. iv. p. 237) ; also C. de Paris, 5th February 1887 (J. xiv- jp. 190). I' So e.g. C. of Aix, 12th March 1878, J. v. p, 610. " So frequently in French practice. See citations in J. viii. p. 148, and Folleville, p. 508. So, too, Dutch judgments in 1878 (Hingst, Rev. xiii. p. 411). On the other hand, for the law of the nationality (except in the case of real property), see C. of Cassation, 4th Ap. 1881, J. viii. p. 426 ; see, too, J. ix. p. 81. C. d'Aix, 7th February 1882, J. xii. p. 188. ^5 French jurisprudence generally holds, in cases in which a foreigner marries a French ■woman in France, that the French law as to the property of married persons may be presumed to be that which parties have chosen. Cf. Trib. Marseilles, 12th February 1885 (J. xii. p. 558) and Clunet's note. ^= The futility of considerations of that kind is plainly to be seen in J. xiv. p. 334, in a judgment of the civil tribunal of the Seine, of 5th April 1887, which at last in despair has recourse to the law of the spouses' nationality. 4o8 bar's international law. [§ 182 view is iu truth the same as the old theory, by which, failing a marriage contract, the fiction of an implied contract between the parties was set up.17 Implied Contract. § 182. Argentrseus 1* long ago rightly declared against the assump- tion of any implied contract.^* 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 expressions of what may be presumed to be the will of the parties.^" 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 binding themselves by any special con- tracts as to their property, could never come under these statutory provi- sions ; and against this tacit understanding, as against every other under- standing which expresses itself in acts, there would be rights of reduction and restitution. But neither of these results is recognised. But again, as a- matter of history, it is a mistake to base the origin of the law on any theory of absolute freedom of contract. As a matter of history, the origim of the law is much more in a theory of absolute subjection to some parti- cular national law. The law of most civilised nations in modern times- goes a long way, no doubt, in allowing parties to withdraw themselves from the operation of this, law and to substitute some other rule for it. This is specially the case with the law of France, which, as a rule, is inclined tO' look upon the Code Civil as the fundamental and natural law of all civilised nations. The possibility of the parties substituting a law of their own seems obvious to French law. But still the foundation of the law of the family and of succession is always to be found in the positive law of the land ; it is upon that law that the exercise of the power of the parties to substitute another really proceeds. What is to be the result, if the national law, let us say of the husband, distinctly forbids deviations from this national law on certain points ? Fiore justly remarks that a dualism which, goes so far as to deal with the marriage itself on the principles of the national law of the parties, while the law of their property is to be deter- mined by the law of the domicile, would be intolerable.^^ ^^ ^^ ^' So e.g. MoliniEus ; J. Voet, de stat. §§ 18-20 ; Abraham a Wesel, Se commb. bon society Tract i. §§ 115-119 ; Cochin, (Euvres, il. p. 47. 1* § 33 ; see, too, Thol, § 44. ^' See, for instance, Hans, § 119, on the theory of a tacit contract. ™ See Teichmann " on the applicability or non-applicability of the matrimonial law of property," in opposition to the theory o£ a contract, and especially the French legal theory which was formed under the influence of the constructors of the Code. Stobbe, § 34, note 12. ^ If the legal rules affecting the disposal of the property of married persons are to be traced to a tacit contract, and based on such a contract, the inclination will be to apply the- law of the domicile which the husband intends to acquire immediately after the marriage is; § 183] PERSONAL LAW THE GENERAL RULE. 409 The only theory which is then left upon a sound basis is that which is insisted on by Italian jurists with special force, and which sees in the law of the property of married persons simply a deduction from the law of marriage of the nation to which the parties belong. 2* This conception differs little, except in form of expression, from that which I adopted in my earlier edition of this book. It may be urged against it, that it not infrequently makes it possible for the parties concerned to be misled, since the law of their domicile is more familiar to them than the law of their nationality, when they are entering on their marriage. We may concede that people may be so misled, and frequently are. But then the opposite view leads to the greatest uncertainty in the judgments of the courts, as is shown by the division among the adherents of the domicile theory. Against these more or less arbitrary doctrines of the courts ^^ there is no remedy, except in an actual contract of marriage, to regulate the property of the spouses, while the fact is that such contracts are not the fashion everywhere, or from considerations of delicacy are not entered into. On the other hand, any man who has a definite sentiment of nationality will, in all questions of family law, if he thinks on the subject at all, as a general rule think and feel in the spirit of that nationality. Limitations on the Personal Law. Eegaed paid to the lex rei sitce IN EXCEPTIONAL CaSES. § 183. "We must, however, note a certain limitation, which must be imposed both in the cases in which the law of the nation, and those in which the law of the domicile, is taken as the ruling law. The subjection concluded, provided always that he has sufficiently revealed his intention to the wife or tt> her guardian. But this theory, which has often been stated, becomes untenable if the theory of a tacit contract is rejected. That being so, if the law of the domicile is taken as the rule, it must be the domicile which really existed at the time of the marriage, or the domicile which the parties last had, as the case may be. ^ The Institute for International Law, on the subject of the marriage law, in their resolutions at Lausanne in 18S8 adopted, in article 14, the theory which prevails in the existing French system. The law of the first matrimonial domicile is to be applied, unless the circumstances clearly disclose some other view in the view of the parties. ^ I may remark in passing that I did not, as Clunet (J. iii. p. 182) certainly thinks, in my iirst edition incline to commit the judgment of the matter to lex domicilii. The terminology of the subject is not yet fully established, but I have used the term lex domicilii as equivalent to the personal law. *• The German Jv/ristentag (Trans, xviii. 2, p. 141) pronounced in favour of this view. 25 See Teichmann's excellent discussion (p. 16) on the uncertainty of these conclusions, which contradict each other, and trench on each other's authority. Teichmann, however, proposes to take not nationality, but the first matrimonial domicile, as the basis for the law of married persons' property. See, too, the projects of law in Switzerland, reported by Teich- mann, p. 43. In the Journal xv. pp. 95, 96, we have judgments of the C. de Paris, of 5th December 1887, and of the C. d'Aix, of 14th December 1885 (affirming a judgment of the Trib. Civ. Grasse). In these judgments the national law of the spouses, or of the husband, as tlie case may be, is regarded as the primary mle, but a door is left open for holding that, in the circumstances of any particular case, there has been a tacit subjection of the spouses to another law. 410 bar's INTERNATIONAL LAW. [§183 of real estate, which lies beyond the territory, to the personal law of the spouses, presupposes that the personal law itself holds the theory of the unity of the assets that make up the property of the married persons. If each individual asset constitutes a separate estate, the fate of which is absolutely apart from that of all the rest of the person's estate, we can scarcely in such a case hold that the personal law intended to regulate property beyond the territory, in dealing with the law of the property of the spouses. According to the principles of the Germanic law, it is not maintained that each particular thing constitutes a separate estate, and indeed the moveable property is regarded as a whole. But each separate piece of real estate is recognised as a special aggregate of property, to which different rules of succession, for instance the feudal rules, may be applied, while the moveable property descends in another channel. By older German law, and by the law of England at the present day, in which these principles are retained, the right of married persons in their property is looked upon as an acquisition of rights in separate things, excepting always the moveables, which represent the personality of the husband in quite a peculiar sense, and are therefore conceived as present at his domicile.^* In accordance with this theory, real estate follows the lex rei sitce, moveables the lex domicilii, whereas, according to Eoman law, where all property, "without distinction between real and personal estate, constitutes a universitas, both constituent parts of the estate are subjected solely to the lex domicilii. In this way we account for the practice of the English common law, and for the circumstance that the older French authors, who have concerned themselves specially with the conflict of law in the matter of matrimonial property, fall into two classes. The one class keeps in view the couiiim.es with the Germanic conception of property, and supports on that account the general application of the lex rei sitce; the other class, more familiar with the Eoman law, rests upon the lex domicilii.^ We cannot, however, infer from the fact that a system of law, in dealing with the subject of matrimonial rights in property, draws a distinction between moveable and immoveable estate, that the Germanic idea of property is at the bottom of this system. The introduction or retention of this distinction may very likely be nothing more than an anomaly which is justified by practical considerations. For instance, it may be that all the moveable goods, which the spouses had before their marriage, fall under the communio bonorum, while real property does not, just because the former can so easily be brought together in the household of the spouses, and for this reason, as a matter of fact, cannot easily be separated one article from another. -* " Mohilia personam sequuntur." ^ Thus e.g the practice of the Parliament of Kouen was in favour of the lex rei sitoe, that of the Parliament of Paris in favour of the lex domicilii; Argentrseus has the Coutumes de Bretagne and their feudal principles primarily in view, while Bouhier, as president of the Parliament of Dijon, follows the orders of the Roman law. Cf. Boullenois, i. p. 798 ; Bouhier ut cit. ; Demangeat in his note to Foelix, i. p. 211. § 183] KIGHTS IN KEAL ESTATE REGULATED BY PEKSONAI. LAW. 4I I The true test is rather to look at the theory of the law of succession.^^ When the law of succession sets up an universal succession,^® the Pioman conception of the property as a whole has penetrated deeply, and this conception is no more disturbed by the fact that some, or, it may be, all the real estate is subjected to a special treatment by the law of matrimonial property, than it is in Eoman law by reason of the special treatment accorded to the Fundiis dotalis in contradistinction to the moveable subjects, which are given to the man m dotem. Thus, for instance, in the law of France, although in the Communautd there is a line drawn between moveable and immoveable things, we find proof of the existence of that theory, according to which the personal statute supplies the rule, just as it does in the Preussisches Allgemeines Landrecht. But, in order to justify the application of the personal law of the spouses to foreign real estate, it is indispensable that the personal statute and the lex rei sitae should both hold the doctrine that the estate must be treated as an unity. If the former knows nothing of this doctrine, it will lay down no rules that will affect foreign heritage ; and if the leo: rei sitce docs not recognise it, it will treat the right of property given by marriage as a real right in the particular thing which is subject to the lex rei sitce and to no other law.^" It is therefore quite impossible to decide the dispute in a way which shall be universally applicable.*^ ^^ ^ See below on the law of succession. ^ The law of married persons' property is, however, neither hy the law of Rome nor by the German law, an universal succession. Savigny, § 379 ; Guthrie, pp. 292, 293. ^ The decision of the Court of Cassation at Paris on 30th January 1854 (reported by Demangeat in his note on Fcelix, i. p. 216), which seems to take a different view, is explained by the fact that by the law of France the Communaute only takes place in cases in which the spouses have not for themselves validly come to some other determination. We cannot, therefore, hold that there is a community of goods, when an Englishman acquires an estate in France, nor even if he should be naturalised in France ; for as this community has once been validly excluded, it cannot afterwards be touched by a change of domicile. ^ The same principles regulate the special provision which by many systems of law are made for widows, and are certainly distinct from rights of succession { Vidualicium, Dotalicium, Dcmaire, coutumier, Dower). In this connection the lex rei sitce is recognised by many authors •who in other respects pronounce in favour of the lex domicilii. Boullenois, ii. pp. 57, 58 ; Bnrgundus, i. pp. 50, 51. The latter, no doubt, excepts the case of the law of the domicile applying to all property wUcumque sita. Eodenburg, ii. p. 2, c. 5, § 5, and J. Voet, 23, 24, f 27, decide for the lex domicilii,-h\it only in cases in which the laW of the dcJmicile has not ■confined its OAvn operation to real estate situated in its own territory, a result which does not differ from our own view. Cocceji. De fuTid. vii. 19 ; Surge, i. p. 635, favour the universal application of the lex rei sitce ■; Bouhier, on the other hand, u. 25, § 44, that of the lex domicilii. '2 It must further be noted that, if the lex rei sites prescribes particular forms for the trans- mission of real rights, rights of the one spouse over the property of the other, which are given by their personal law, can only be made effectual as an actio personalis until these forms are complied with. This has been noticed by old writers. Burgundus, i. 15, 16, 37 ; P. Voet, -vi. 3, § 9 ; Eodenburg, ii. c. 5, § 9 ; Christianaeus, Deo. ii. § 57 (see in the same sense Haus, ?125; Stobbe, § 34, note 16). "What has been said is ako, of course, true of the statutory hypothec of the wife over the husband's property. 412 BA/i'S INTERNATIONAL LAW. [§ 183 The objection may further be taken, that the regulation of the rights of property of married persons, if, and so far as, in accordance with what we liave said, this is to be guided by the lex rei dice, on the one hand is at variance with what is probably the desire of the parties, and thereby may 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 opposite may be just as. easily assumed. The second argument is much more a description of the effect of the rights which the hiisband originally had in the subjects which he alienates, than of the consequences of our theory as to the conflict of laws. If he cannot by the lex rei sitae alienate landed property, and by the lex domicilii cannot change the investments of the funds without his wife's- consent, then this dangerous power is fully excluded. If the application of the lex rei sitce is sound, the whole matter stands precisely as in the case where within the territory of one and the same system of law there are particular regulations as to the property of spouses in particular kinds of estate, e.g. manorial or peasant holdings. These are 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 exception 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 sitce is to be preferred, but not because the law that interferes is a prohibitive statute. Tor 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 possess property there ; an instance is the Eoman law, which 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 sitce.^ ^ Bouliier, cap. 26, No. 19 ; BurgUDdus, as cited ; Boullenois, pp. 753, 796, 797. ^ See infra, § 187. Wachter, ii. pp. 362, 198, rouudly asserts the application of the lex- domicilii, because an authoritative statute as to the property of married persons has regard not to things within its own territory, but to persons, and in doubt must be held to take cognisance:' of none but its own subjects. ^5 A judgment of the Court of Cassation of Paris, 4th May 1829 (Sirey, xxx. 1, p, 191), affirming one of the Cour Ebyale at Rouen, declares the 329th and 330th articles of the- Coutumes of Normandy, which onlyallow a certain part of the ccmquits 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 I 184] CHANGE OF PERSONAL LAW. 413 Can the Law of the Spouses' Property undergo a Change, OR CAN IT not? § 184. What, however, is to be the result if the spouses, after con- tracting marriage, change their personal law, i.e. alter their nationality or ■domicile, as the case may be ? Does such a change carry with it an iilteration in the law applicable to their property, in respect that that law is dependent on the personal law ? Practical jurists have busied themselves a good deal over this question as to whether the law of married persons' property changes or does not,^^ and there has also been much theoretical discussion of the subject, but there has not as yet been an unanimous answer returned to the question. Those who refer the positive law of married persons' property to a tacit agreement, say that it cannot undergo any change, for agreements cannot •be set aside by a change of nationality or of domicile.^^ It may be that the expediency of having the law of married persons' property preserved from change has done something to bolster up the theory of a tacit agreement. For, if the law of property as between the spouses is transformed with every change of domicile or of nationality, many difficulties are, in the view of most authorities, at once raised, and the rights of the wife are very apt to be put at the mercy of her husband's caprice. their domicile, live in complete community of goods. The reasons assigned for this, viz. " Lc atalut est personnel, lorsqu'il rigle direetement et principalemenl la capacity ou VincapcuciU generale des personnes pour contracter —le statut estriel, lorsqxi'il a principalement et direetement les biens pour objct," certainly do not -warrant the result. Stobbe, § 34, note 14, has attached himself to the view worked out in the text, with full recognition of the exceptions that must be recognised where the lex rei sitoe is applicable. By the law of England, land situated in England is not affected by any other marriage law than tliat 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, will regulate the rights of the spouses in moveable property. This is also the law of Scotland (Eraser, 1323, 1324) ; and conversely, real estate situated out of England or Scotland, as the ease may be, is not subject to any of the rules of English or Scottish law to any elfect, and specially with regard to the present topic, is not subject to be affected by the rule 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 provisions 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, 1879 ; Trib. Civ. de la Seine, J. vi. p. 549). As to the effect of an English marriage-contract upon the succession of the spouses, when that succession opens in France, of. the case of Noireterre (1881, J. viii. p. 529) decided "by the civil tribunal of Albi (see infra, note 97, p. 426). ^ See A. Teichmann's monograph on the subject already mentioned. Muheim, p. 205, treats the question most exhaustively, but without any hesitation pronounces for the impossibility of change. ^^ No doubt it has been said, on the other hand, that even with a theory of tacit agreement, we may suppose a new agreement at every change of domicile. This suggestion is not, howevt-r, very scientific. 414 BA/^'S INTERNATIONAL I.AIV. [§ 184 At the present day, there is no doubt that the theory which asserts that there can be no change is adopted by the great weight of opinion.^ But there is no want of respectable authority in favour of there being a change in the law,^^ a theory which is in particular recognised by the practice of the United States.*** As we have seen, the theory of a tacit agreement cannot be invoked t* set up the doctrine that the law of the property of the spouses is subject to no change. But, as has been already aptly said by Savigny [§ 379, Guthrie, p. 296], if, and in so far as, the law of the new domicile holds that parties may effect for themselves changes on the common law applicable to their property, this provision can only be applied to the marriages of such persons as, at the time of their marriage, already belonged to the State, whereas the law of the older domicile intended to regulate per- ^ P. Yoot, 9, 2, No. 7 ; Hert, iv. 48, 49 ; Rodenburg, ii. p. 2, o. 4, § 3 ; J. Voet, in Dig. 23, 2, § 87 ; Burgundus, ii. p. 15 ; Molinfeus, in L. 1, C. de S. Trin. ; Hofseker, Principia, f 143, ad fin.; Seuffert, Comm. i. p. 238 ; Bouhier, c. 22, No. 21 ; Alderan Mascardus, Concl. 7, No. 62 ; Pfei£fer, Prakt. Ausf. ii. p. 263 ; Hagemann, Prakt. Erort, 6, p. 142 ; Eeyscher, i. p. 82 ; Harum in Haimerl's Magazine, viii. p. 398 ; Funk in Archiv. fur Cimlpraxis, vol. 22, pp. 93-126 ; BouUenois, i. pp. .')09 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 ; Savigny, § 379 ; Guthrie, p. 293 ; Unger, p. 194 ; Gerber, § 229 ; Fcelix, i. p. 214, |: 91, and Demangeat in his note to Foelix, i. p. 216 ; Puchta Lectures, § 113; Puffendorf, Observ. ii. obs. 121, § 2 ; Mittermaier, § 400 ; Gliick, Comm. xxv. p. 269 ; Roth, Bayer. Privatr. i. § 17, note 54 ; D. Privatr. i. § 51, note 66 ; Dernburg, Pand. § 46, note 10 ; Stobbe, § 34, note 18 ; V. Sicherer, p. 41 ; Westlake Holtzendorff, § 32 (there is a decided want of decisions in the English courts on this point) ; Phillimore, iv. § 340 ; Teichmann, p. 24 ; Asser-Rivier,. § 50 ; Arntz, Rev. xii. p. 323 ; Durand, § 160 ; Weiss, p. 694. In accordance with this is the more recent practice in Hannover (Grefe Hamwcersrecht, Hannover 1861, ii. § 20), which is- now sanctioned by statute, and has the force of law in Hannover, and so, too, the express pro- visions of the Prussian A. L. R. ii. 1, § 350. Judgment of the Supreme Court of Appeal at Munich, 3rd November 1841 (Seuffert, i. pp. 155, 156), of the Supreme Court of Appeal at Wiesbaden in 1841 (Seuffert, x. p. 322), at Jena 18th August 1843 (Seuffert, xiv. p. 161), of the Provincial Court of Cassation and Revision in Rhenish Hesse, 1st June 1826 (Archiv. 2, p. 289), of the Supreme Court of Appeal at Oldenburg, 1864 (Seuffert, xviii. No. 1), of the Supreme Court of Appeal at Wolfenbiittel, 26th November 1863 (Seuffert, xx. No. 2), of the High Court at Berlin, 29th November 1870 (Seuffert, xxviii. No. 187), of the same court, 17th December 1875 (specially noticeable, because directed against a consistent practice to the contrary in Schleswig-Holsteiu, which is set out of account as erroneous), of the same court, 28th March 1876 (Seuffert, xxxii. Nos. 103, 104) ; German Imperial Court (iii. Sen.) 18th April 1882 (Entsch. vi. p. 223, and Seuffert, xxxvii. No. 319). See also decision of 7th March 1882 (Entsch. vi. p. 394). These latter judgments will probably rule the practice. In the resolutions of the Institute of International Law of 5th September 1885, art 15 {Biglement international des conflits de lois en matiere de mariage et de divorce), it is in the same way laid down that there cannot be any alterations. " JJn changeinent du domicile ou de la nationality des ipoux ou du mari n'a aucune influence sur le regime une fois etabli entre les ipoux, sauf les droits- des tiers." ^ See Strube, EeclM. Bedenken, iv. § 13 ; Hommel, Rhaps. 409, § 13 of the Leipziger Facultiits Gutachten, Eichhorn, § 35, note g ; Runde, Ehcliches Gilterr. pp. 217 and 236 ; Kierulff, Civilr. i. p. 78 ; Bbhlau, i. § 75, p. 481 ; Beseler, § 39, note 9 ; Vesque v. Piittlingen' § 66 ad fin. ; Mommseu, Archiv. filr die civile Praxis, 61, p. 183. Supreme Court of Kiel, 26th November 1845. Supreme Court of Appeal at Liibeck, 30th December 1859 ; Supreme. Court at Oldenburg, 1864 ; at Rostock (Seuffert, No. 166 ; 18, No. 1 ; 26, No. 288). ' *» Story, § 187 ; Wharton, § 196 ; Field, § 575. I 184] CHANGE OF PERSONAL LAW. 415 manently the relations of the spouses in regard to their property.*^ It must be held that the only object of the law in the former case is to settle questions of property that arise in the case of marriages of persons belonging to its own country ; 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 undoubtedly be obliged 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, the uncontrolled power of altering his wife's domicile and his own.** If it is urged, in 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 contract, and, on the other, if there is no special contract, then the law of the property of married persons is a consequence of 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 statement is, no doubt, correct in itself, but not lit to meet the reasoning of Savigny just quoted ; the second is incorrect,, because it necessarily involves 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 *i 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 effect something of the kind by a, special bargain ; or (2) some special enactment of the country of their new domicile should forbid that community of ^ 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 husband shifts his domicile it is transformed into the- shape prescribed by the law of that new domicile." *3 We must make a clear distinction between the rights of succession of the spouses to each other, and the effects of the matrimonial law of property subsequently to the death of one of the spouses. D. R. G. vi, 19th December 1887 (Seuffert, xliii. § 196). " Those who uphold the possibility of a change in the law of property of married persons have not been able entirely to keep themselves from a consideration of the hardships attendant on it. Thus Bbhlau, p. 484, after an abrupt attack on the theory of the permanency of the law, ends by laying down that the wife shall have an action to compel the husband by contract to grant her the rights given to her by the law of her first domicile, if by changing his domicile he has prejudiced her rights of property. The distinction is scarcely in that case worth fighting about. Of course, such an action, from the point of view of those who hold that the law may be altered, is nothing but a capricious invention. See Teichmaun, p. 26, upon this and other devices. ^^ Gunther, p. 371; Malblanc, Prine. Jur. Rom. § 65 ad fin.; Eicci, pp. 597, 598; Eichhoni,, §237. 4i6 bar's international law. [§ 184 established, and that the law of the former domicile 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 Tefuted, that the permanent dependence of all questions of property between the spouses upon the law of the first domicile can only be justified lay the assumption — an erroneous assumption — of a tacit contract; and then those who would make the lex rei sitae the rule, adduce this consider- ation, that in the eye of the law moveables are always situated at the actual domicile of the party in right of them. But this second consider- ation does not support the intermediate theory, but rather the second theory, which does not except the property already acquired by the spouses from the law of the new domicile ; it is not, however, well founded, for the Tule " mobilia ossibus inhcerent " merely signifies that in certain circum- •stances moveables, according to the laws of all civilised peoples, constitute .an universitas. This intermediate view is, besides, quite unscientific. It forgets that the principle of community of goods extends not merely to the existing estate, but also to what may be subsequently acquired, and in .attempting to avoid inconveniences on the one side, this doctrine raises aip all the more on the other. Mg. the wife has had to share with her husband an inheritance which fell to her, because the law of her domicile :at the date of the succession so directed : a succession now opens to the .husband : he keeps the jus qucesitum he had in the half of the first :Succession; but, in accordance with the law recognised at their new •domicile, the wife gets nothing at all from the succession which has fallen to her husband. If, in the first place, it is contended, in opposition to the theory we liave adopted, that parties contracting with married persons are entitled to rely upon the legal conditions of that relation as recognised at the seat ■oi their existing domicile,** we cannot affirm this contention, unless every jnarriage which is celebrated in that country necessarily involves the ^ A judgment of the Supreme Court of Appeal at Liibeck, on 30th December 1859 (SeufTert, 14, pp. 162, 163), 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 ; Haus, pp. 31, 32 ; Kierultf, § 5, p. 73 ; Burge, i. p. 622 ; Story, §§ 178, 187. So, too, according to these authorities, the practice of the common law of Englaud and America, and the jurisprudence of Scotland. [See infra, p. 419.] See, too, the judgment of the Supreme Court of Appeal at Kiel, 26th November 1845 (Seuffert, 7, p. 162). ^ Schmid, p. 82, has declared in favour of this view. BouUenois, i. p. 537 ; Ruiide, Eheliches GiiterrecM , § 166, 8, ad fin.; Sehaffuer, p. 144. The bona fides ol the creditoT viill, ^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. The treaty of Spanish-American States in 1878, art. 15 (Zeitschr. f.d. ges. § 185] CHANGE OF PERSONAL LAW. 417 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 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.^^ Eesteictions on the Legal Capacity of the Wife not to be confused WITH Limitations placed upon the Wife's Power of Disposal BY Eeason of the Husband's Eights. § 185. We must not, however, confuse the invalidity of a transaction entered into by a married woman without her husband's consent — a consequence of the husband's rights over the wife's property — with the invalidity of a legal act, arising from some incapacity of a married woman to act. This incapacity, which as a rule is only partial, may very well take its rise, simply from the fact of marriage, and exist for the married woman only so long as the marriage lasts. We must, then, consider the position Handelsr. 25, p. 548, and Introduction, p. 668), takes up the principle of the possibility of altering the law of matrimonial property — in accordance with the law of the domicile — in a peculiar fashion, with the object of bringing about an assimilation of immigrant families with native born. But it would not be possible in that case to recognise the validity of contracts concluded abroad, and in^all probability the object which is sought to be attained will not be reached at all, but rather will result in confusion when it is attempted to set it in operation. ^ In this case the law of the new domicile will be applied ("Wiichter, ii. p. 55 ; Savigny, § 379 ; Guthrie, pp. 296, 297). See, too, the judgment of the Court at Celle, cited in note 1 ad fin. 5° Cf. judgment of the Supreme Court at Berlin, 26th October 1860 (Seuffert, 14, p. 340) : " When intimation is required as a necessity, the law of the territory must be recognised to this efiFect, that so long as this intimation is not given the spouses must be held, so far as their relation to others is concerned, to be living in the ordinary community of goods. This ruling 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, 143. By the law of Hamburg, contracts of marriage are of no force in questions with creditors, except it should happen that the wife possesses som.e separate estate acquired from a third party (Baumeister, Hamburg. PrivatreeM, ii. p. 95). As the judgment of the Supreme Court of Germany already cited notes, the necessity for the publication of a foreign marriage law which differs from that of the country is by no means obvious without special enactment. As to the means of giving effect to claims by the wife in case of bankruptcy, see the law of bankruptcy. " Schaffner, p. 138. 2d 41 8 bar's international law. [§ 186 carefully : Is the legal act ineffectual because of some right in the other spouse, as a rule, the husband, or is it invalid on account of an incapacity to act in the contracting party ? 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 herself. The former is 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 the transaction was entered into/^ It is to the neglect of this distinction, which has now been sharply brought out in the practice of the German Imperial Court,^^ that the origin of many of the divergent theories, to which we have already referred, may be traced.®* Enactments for Public Policy. I 1 86. It may happen, too, that the later personal law contains provi- sions for the modification or suspension, as the case may be, of the matrimonal law of property which call for application in the interests of public policy, and especially in the interest of the creditors of the spouses, to each and every married person who has a residence in the country, or who belongs to it as a citizen. The application of such an absolute provision is, of course, not in any sense interfered with by the circumstance that the law of property between the spouses is in itself subject to the legal system of some nationality or domicile which the spouses at some previous time enjoyed. In this way a judgment of the German Imperial Court (ii. Sen.) of 7th October 1884 (Entsch. xii. p. 309) found and declared the 1443rd article of the Baden Landrecht {Code Civ.), whereby any suspension of the matrimonial community of goods was required to be judicial, to be an absolutely universal proposition, applicable to all married persons living in the dbuntry.^® "2 So, too, judgment of the Supreme Court at Berlin, 19th December 1859 (Seuffert, xiv. No. 4). If we take nationality as the criterion on this matter — the proper course, as I thinks we should not regard the courts of the domicile as competent even to give any ratification that might be required to supplement the wife's capacity. (So Gianzana, i. § 98.) The rules of jurisdiction of the courts of law would in many cases shut out the possibility of applying foreign law by the courts of the domicile. 63 Court of the Empire (iii. Sen.), 7th March 1882. Entsch. vi. p. 395, § 123. " BouUenois, ii. pp. 14, 15, 24, 25 ; Duplessis, CEuvres, ii. p. 158 ; Beseler, ii. p. 383. Cf. Story, § 136 et seq. ^^ See, to the same effect, Arntz : Rev. xii. p. 324. "Weiss, p. 680 ; and Beauchet, Jour. xii. p. 39 ; Jour. xiii. p. 723, think, on the other hand, that they find in that article of the code merely a personal statute, which is not to he applied to spouses who have married under a law of matrimonial property to a different efieot. § 187] CHANGE OF PERSONAL LAW. 419 NOTK L ON §§ 184-186. RESULT OF CHANGE OF DOMICILE. [Lord Fraser (Husband and Wife, p. 1326) thus states the question raised in the foregoing paragraph : " Suppose a husband not entitled jure mariti 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 domicile 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 jus 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 matri- monial domicile." By the phrase " matrimonial domicile " in this passage is meant the domicile 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. 71 ; 1 Burge, 626 ; Savigny, § 396 ; Wharton, § 198 ; Story, § 187 ; Bishop on the Law of Married Women, vol. ii. § 565, and the American cases cited there — would probably be sufficient to determine the decision of any case that may occur in Scotland. In questions as to the rights of spouses and children on the death of one of the spouses, the law of the domicile at the time when the succession opens will settle English and Scottish cases (Hog-y. Lashley, 1804, 1 Eobertson Sc. App. c. 4; Westlake, pp. 73, 74; Fraser, p. 1325). The Court of Aix (Jour. ix. p. 541) decided that a wife who has, by marrying a man of a particular nationality, once acquired certain rights in spe as his widow cannot afterwards lose them by a change of nationality on the part of her husband.] Limitations on the Fkeedom of Contract of the Spouses ; Donations BETWEEN the SpOUSES. § 187. The positive law of the spouses in not a few instances restrains the power of the spouses to contract with each other. These are cases of limitation of capacity, and accordingly the personal law of the spouses must be exclusively applied, and the personal law which the spouses enjoyed at the date of the act in question.^^ The first of these 51 On this subject many illustrations may no doubt be given which create doubt, e.g. according to a marriage contract concluded in France, the husband had a right to the wife's wages. If, then, the spouses afterwards settle in England, can the wife appeal against her 420 BAf!'S INTERNATIONAL LAW. [§ 187 limitations is the prohibition of donations between the spouses,^'' which existed in the Eoman law. If such a prohibition exists according to the lex rei sitce, 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 Eoman 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 Eoman 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 Argentrteus correctly says,^" they confuse this prohibition of donations between spouses — a provision of the Eoman law — with the rights of the next heirs, which are founded on principles of Germanic 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 Eoman 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 husband to the Married "Women's Property Act, by which all a wife's earnings belong to her- self? In the paper in J. viii. p. 47, proes. pp. .')4, 55, the question is answered in the affirmative, because the provision of the English law is essentiellement d'ordre public;" v. Martens answers it in the negative on the ground that the law of married persons' property is unalterable, § 73 ad fin. " Savigny, § 379 ; Guthrie, i>. 297 ; Schmid, p. 83 ; Bouhier, cap. 12, § 95 ; Demangeat on Foelix, i. p. 247 ; Laurent, v. § 222 ; Stobbe, § 24, note 27 ; Saxon Statute Book, § 14 ad fin. Folleville, pp. 515, 516, goes too far in proposing to extend to gifts already completed prohibi- tions which exist by the law of some subsequently acquired nationality. =8 Burgundus, i. 38 ; Barthol. in L. 1, C. 6, S. Trin. No. 32 ; Bouhier, chap. 29, No. 37 ; Wachter, ii. p. 199 ; Holzschuher, i. p. 85 ; Unger, i. p. 93 ; Walter, § 42 ; Demangeat in his note to Fcelix, i. p. 123, and the judgment of the Cour 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 ; BouUenois, i. pp. 105, 106 ; Abraham a Wesel, ad nov. Ultra). No. \i et seq. " L. 32, §§3, 4; L. 27, D. 24, 1. '^ There are in favour of the lex rei sitce : P. Voet, iv. 2, § 2 ; J. Voet in Dig. 24, 1, § 19' (J. Voet for this reason, that the prohibition simply affects things without touching upon the personal qualities of the spouses) ; Cocceji, Be fund. vii. 19 ; Christiansens, Comm. ad leg. municip. Mechlin, tit. xvii. act. 3, No. 12 ; Ricci, Entw. pp. 547, 548 ; Burge, i. p. 639, ii. 846 ; Foelix. i. § 60, p. 123 ; Eocco, pp. 14-27 (according to the citation in Fcelix, ad fin.). For the practice of the French Parliament, which had in view that prohibition of German law, and pronounced it to be real, see Bouhier, chap, xxvii. No. 32, 45-47 ; BouUenois, i. pp. 489-491, ii. pp. 97 et seq. 104, 105, 127, 154, 155 ;;the provision of the Codes Civil, art. 1091, proceeds upon the view of the Eoman law. §187] DONATIONS BETWEEN SPOUSES. 42 1 possible benefactions «» from tbe 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 substitute contract for common law provisions to regulate their property ,«* is to be settled by the law of the domicile which the spouses had,«5 at the time of the alteration in question.^ Foreign spouses are not fettered in this matter by the fact of having property in this country. The prohibition against alienation of the fundus dotalis,^'' which existed in Eoman law, is in the same way a special case of true incapacity to act. In this case the spouses are in truth, unless in exceptional circumstances, incapacitated from disposing of one asset of their property inter vivos. The consequence is that such a prohibition, found to exist according to the lex rei sitce, will not extend to foreign spouses, by the laws of whose own country alienation of this asset is allowed. The special protection, which the law desires to give the spouses in this matter, cannot be extended to foreigners, whose own law looks upon such protection as superfluous or mischievous. Conversely, alienation will be regarded as null, not upon any logical ground, it is true, but according to the law of custom which has been adopted on the continent of Europe,"^ in cases in which only the personal law of the spouses pronounces it to be so.^^ We find an analogy in the case of a person who, in accordance with the common law of Eome, is declared by a rescript of the sovereign to be of full age. Such a person may dispose of all his other property without restraint, but may not alienate landed estate.^" '^ So, too, the modem German authorities. See Savigny, as cited. *■ Demangeat, as cited ; J. Voet, 23, 2, § 87 ; Bouhier, chap. xxii. No. 95. Cf. Code Civil, art. 1394 : " Toutes conventions matrimoniales seront ridigies avant le mciriage par acte devant notaires." 1395 : " Elles ne peuvent recevoir aucun changement apris 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. '^ The Court of Cassation at Turin, on 17th Jan. 1877, decided soundly in our view that the dos of a foreign wife, who had married a Sardinian subject, had, in accordance with the law of Sardinia, become inalienable (J. vi. p. 75). ^ Bouhier, cap. 20, No. 150 ; Beauchet, J. xi. p. 39 ; Folleville, p. 113. On the other hand, Eaoul Jay (J. xii. p. 52) improperly treats the question as a part of the rigime matrimonial,, to be determined therefore by the law of the first matrimonial domicile. ^ Cf. Code Civil, § 1554. * English jurists will be compelled to recognise that their general principle, according to which the lex Idci actvj gives the rule, must suffer an exception here. ™ Bouhier, c. 27, § 14 ; Demangeat on Foelix, i. p. 195 ; Fiore, § 332 ; Esperson, J. viii. p. 215 ; Laurent, v. §226 ; Aubry et Kau, §31, note 30 : and Weiss, p. 693, answer this question as it is answered in the text. French practice has, according to old tradition, allowed the lex rei sitce generally to rule : see Weiss, ut cit. Burge, ii. p. 270 ; Duplessis, Consult. (Euvres, ii. p. 259 ; Gand, No. 652 ; and Fcelix, § 60, p. 123, declare for the lex rei sitai. '" If judicial sanction is required to alienate the fundus dotalis, the judge who is pronounced by the personal law to be the proper judge is competent. Cf. Hannoveriati law of 30th July 1840 (6. S. L. i. p. 135, § 1). Gianzana's view on this subject is peculiar (ii. § 318). Perhaps 422 bar's international law. [§ 188 On the other hand, the question whether property in a fundus dotalis can be acquired by prescription, depends, not upon the lex domicilii, but upon the lex rei sitceJ^ Eegulation of the Property of Spouses by Contract. § 188. It is the prevailing opinion that the import of the marriage con- tract (pactum nuptiale), which determines the rights of property between the spouses, should be settled by the law of the domicile of the husband at the cele- bration of the marriage,''^ and on this point many, who take nationality as their rule in other matters, are of opinion that the guiding principle should be domicile. As a matter of principle, however, we must on this point also hold that nationality is the proper guide. We must, however, admit that circumstances may very easily occur to justify us in supposing that, in so far as the spouses were at all at liberty to make a contract for themselves, they desired that their contract should be supplemented on points that were not fully expressed, or should be interpreted by some other positive law ; and then, in a matter like a marriage contract, the practical result will very often be (in so far as the law of the husband's nationality gives him freedom of contract) that the lex domicilii will carry the day, as so often happens in other contracts. Protracted domicile at the place, it may be, to which the bride by nationality belongs, or in which she is domiciled ; ignorance on the part of the bride, or of her guardian, of the law of the husband's nationality; and the employment of expressions which are peculiar to the legal language of the domicile, possibly an engagement by the husband to continue to remain permanently at the bride's domicile,^* he is misled by the principle of the so-called " ordre public." His view is that the judex domicilii {i.e. the judge who by the personal law is the proper judge) cannot interfere with property of the spouses which is situated in another country. ^^ See below the law of things, and Aubry et Ran, § 31, note 20. We must take care not to confound the Roman prohibition against alienation of the fundus dotalis with the prohibitions which we find in German law against the alienation of particular estates, which proliibiti6n arose from the rights of the next heirs. The judgment of the French Court of Cassation of 17th Feb. 1817, reported in Sirey, xvii. i. p. 421, pronounced the statute, which was once recognised in Normandy, by which a wife siparSe de Mens could only alienate her fundus dotalis with judicial permission, and after consulting her nearest relations, to be a real statute, and therefore held (before the publication of the Code) that a, sale of such an estate by a married woman domiciled in Paris was null. Cf. BouUenois, i. pp. 739, 750, 798, 799. '2 Bartholmaeus de Salic, in leg. 1, C. de S. Trin. No. 4. Jason Maynus in leg. 1, C. de S. Trin. No. 24 ; Molinjeus in leg. 1, C. de S. Trin.; Duplessis, Consult. 17 ; CEuvres, ii. p. 93 et seq. ; P. Voet, 9, 2, No. 5 ; Huber, § 10 ; Hert, iv. 39 ; Argentraius, No. 31, 45 ; Rodenburg, ii. p. 2, c. 4, § 1 ; J. Voet, 23, 4, § 29 ; Cocceji, Befaiid. vii. 12 ; Abraham a Wesel, de Comm. bon. Soc. i. No. 100; Masse, No. 161, p. 224; BouUenois, i. p. 637 et seq. ; Wiichter, ii. p. 47. Cf. L. 65, D. dejttdiciis. [This is assumed to be the rule of the law of Scotland in the leading case of Earl of Stair v. Head, 1844, Ct. of Sess. Reps. 2nd ser. vi. 905. But it is decided in that case that spouses domiciled in one country may select the law of another as the law that shall construe their contract. Even although spouses may not have expressly made such a selection, it would appear that an inference to that effect may be drawn from the language of the contract, if it shall disclose an intention to live in a particular country, and to be ruled by its law.] "' See, for instance, the English decision reported in J. ii. p. 445. [CoUiss v. Hector, 1875 L. R. 19, Eq. 334.] § 188] INTER PRETAl^ION OF MARRIAGE CONTRACTS, 423 will all incline the scale towards the decision of the matter according to the lex domicilii. The case we have now under consideration is quite different from the case in which no special contract has been made. When parties make no contract, they allow the general rules of international law to decide, and these pronounce in our view for the law of the nationality. "When parties make a contract, they introduce their own individual wills to a certain extent as factors in the case, and may quite properly demand that this individual declaration of intention should be considered in the light of the circumstances of the individual case. There will be much less reference made to the place where the contract was concluded to discover its meaning,'^* since, in the case of a contract of marriage, hona fides does not require the parties to subject themselves to the lex loci actus. (Cf. infra on obligatory contracts.) 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 obli- gations undertaken by the future wife before her marriage, can only be determined by the law of their respective domiciles ; in the case of the wife, because it is only after celebration of the marriage that the wife follows her husband ; before this, the 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 sitae requires a special form ™ to constitute a real right which it has been undertaken in a marriage contract to grant — e.g. the registration in a public 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.^" ^* For the lex loci actus, Hommel, Rhaps. ii. obs. 409, No. 13 ; Gand, No. 648. " Cf. Alderan Mascardus, Concl. 7, No. 57, 65, 66. E.g. according to the 1547th article of the 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 circumstances (L. I. 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 eviction under the conditions of the Roman law. '' Gand, No. 671 . [So decided by the House of Lords in Cooper, see supra, p. 310.] '" In exceptional cases, then, the lex rei sitai may also be applied, but only if the contract makes special provisions for particular 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 numcratce dotis must, asarule, be governed by the law of the place where the discharge is granted. Seeabove, §77. '" The rule "locus regit actum " has application in this connection, but of course only as a permissive rule. From the fact that it is merely permissive it follows that a contract, which satisfies the forms required by the national law of both parties, is valid. Cf. art. 13 of regulations adopted by the Institute of International Law at Lausanne in 1888. 8» Argentrseus, Nos. 38, 39 ; Burge, ii p. 368 ; Story, § 184. There is no doubt that a community of goods depending on contract will include foreign real property (see Story, § 184 ; Rodenburg, iii. p. 1, c.. 4, § 5 ; Boullenois, i..pp. 794, 795), except in cases where the real 424 bar's international law. [§ 189 § 189. Some doubt is created by supposing a case where the husband 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 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 provis'ions of the law of the former domicile.^ Marriage contracts may very well contain provisions, which may be characterised as true contracts of succession : in that case, these provisions can only be defended against the unconditional rights of heirs ah intestato, or against the rights of heirs who take by some provision of law [as in the case of legitim], according to the rules of that legal system which is to be taken as determining the law of succession, be that the law of the last domicile, or of the last nationality.^* We can also deduce, from the fact that the rule " locvs regit actum " is merely permissive, the following rule, viz. : In so far as the husband undertakes unilateral obligations, if there is a plain intention on his part to impose on himself a binding obligation, we must always affirm the validity of the obligation, so far as form goes, if it is in accordance with the rules of his own law. Any other view would give him the widest opportunity of deceiving his wife.*^ Dissolution of thk Marriage. Second Marriage. § 190. Except in so far as the lex rei sitce prevails,^^ the rules of the first personal law which the spouses had in common will settle what rights right sought to be conferred is declared by the lex rei sitce to be inadmissible {e.g. Dominium pro diviso in an estate which the law says shall not be divided), or the disposition itself in the contract 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.) ^ Cf. Pothier, de la communanti, Nos. 15, 16. ^ To appeal to the law of the new domicile without previously announcing the purpose of acquiring it, is inconsistent with io^ia 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. ^ E.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. *• Supreme Court of App. Lubeck, 17th November 1874. Seuffert, 32, § 105. ^' This consideration is overlooked in the grounds of decision in the interesting judgment of the Court of Cassation at Turin, 27th November 1885 (J. xiii. p. 617) — at least in so far as the grounds of judgment are given there — and in Chretien's note, p. 619. ^ See, for instance, Stephen, ii. p. 403, on the Courtesy of England. Lehr, Dr. Ang. § 182. § 190] RESULTS OF DISSOLUTION OF MARRIAGE. 42$ the surviving spouse has in the property of the deceased, or in the goods falling under the communio after the death of the predeceasor; 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 as, for instance, where there has been a communio^ boiwrum, and at the dissolution of the marriage, the property hitherto held in common falls in whole or in part to the surviving husband, or the wife retains the manage- ment and liferent 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 management.^" Ordinary cases of succession are determined, when the lex rei dtce does not assert itself, by the rules of the last personal law which the deceased had.®^ Since divorce and its consequences can only be decreed by the court of the country whose law actually regulates the personal status of the parties, the consequences of a dissolution of marriage, in so far as they are penal, can only be determined by that law. That is, for instance, true of the purely arbitrary punishments of the Eoman law, which have no necessary connection with the Eoman law of dowry. ^^ I'or other purposes the law which regulates the relations of the spouses in other matters of property is decisive here also.^^ ^ Chopin, ad. leg. Andegav, iii. 2, No. 16 ; Rodenburg, iv. p. 2, c. 2, § 8 ; Burgundus, ii. 13, 14 ; Savigny, § 379 ; Guthrie, p. 298 ; Beseler, ii. p. 385 ; cf. Puchta Lectures, § 113. 88 Ordinance of Lippe, 1786, § 15, cf. §§ 8, 9, 6, 7 ; Kraut, § 200, No. 3, 201, No. 1, 202, No. 6 ; Hamburger SladtrecM, iii. 3, 8, cf. ii. § 1 ; Eraut, § 202, No. 15, 201, No. 1, 3. 88 Niirnherg Reform, Tit. 33, Geo. 5 (Kraut, § 212, No. 14) ; Frankfurter Ref. v. 4, § 3 (Kraut, § 205, No. 1). '" Many systems of law provide that the wife cannot renounce the community 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 "loans regit actum " is applicable, must be fulfilled in conformity 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 first domicile.) Cf. Bouhier, chap. 28, Nos. 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 Roman law. ^ The reverse is laid down in a judgment of the Supreme Court at Berlin, 31st May 1841 (Entsch. i. p. 181). See the judgment of the same court given below in note 96. Judgment of the Imperial Court (iv.) of 17th Oct. 1887 (Entsch. xviii. No. 58, p. 309). "In the first place, it is beyond all doubt that the patrimonial results of divorce are to be determined by the law of the place in which the spouses had their domicile up to the date of the dissolution of their marriage." ^ If the parties, while a process of divorce is in dependence, shall change their personal law, then the results of the divorce which could not be determined by the sentence of divorce, or which it has not, by reason of the tenor of parties' pleadings, determined, must be determined by the subsequent personal law, i.e. by the personal law which the divorced spouses had at the time when the sentence of divorce first began to take effect. Cf. judgment of the German Imperial Court (iv.) of 27th May 1881 (Entsch, v. No. 54, p. 193). By omitting to plead, it may possibly be that a party has intended to renounce his or her rights. 426 bar's international law. [§ 190 The effect of a second marriage in the same way, in so far as the lex rei sitoB 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 first personal law of that marriage ; but in so far as the law gives the children of the first marriage the right to require payment or security for payment of what the surviving spouse inherited from the predecessor, all (juestions 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 propter nuptias of the Koman law falls to the children, will be settled by the law of the original personal statute of the first marriage ; and, on the other hand, the question as to whether the property passing by inheritance from the deceased spouse to the parens binubus is to be refunded on his or her re-marriage, must be settled by the law of the last domicile of the parens prcede/undus.^* For although it is true that the children of the first marriage do not claim the goods that have fallen to the parens binubus on the footing of intestacy ,^^ it is also true that this parens binubus 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 binubus 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 binubus, and therefore in certain circumstances upon the lex rei sitce.^'' Lastly, the rules of the personal law of the new spouse must decide '^ Or by the lex rei sitae, 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 predeoeasor 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, C. 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 prcede- fmictus, and shall lose the right if they are ungrateful to ^e parens binubus; 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 binuba 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. 88 Cf. Seuffert, Comment, i. p. 243. ^ Abraham a Wesel, ad. No. Const. Vltraj. art. 10, § 138 ; J. Voet, in Dig. 23, 2, § 136 ; BouUenois, i. pp. 806-809; and Bouhier, chap. 34, No. 41, declare in favour of the lex rei sitce. [The French courts have held that an English marriage-contract must be read according to the rules of French law, quoad its testamentary provisions, if the succession opens in France § 190a] JiESVLTS OF SECOND MARRIAGE. 427 exclusively as to the rights which children have in his or her property.^* The limitations 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 who have, as a rule, the purely German institution of the rights of the next heirs in view, apply the lex rei sitce}'^ SUPPLEMENTARY PARAGRAPH. 190a. The " reglement international des conflits des lots en matiere de mariage et de divorce" adopted by the Institute of International Law at Lausanne, runs thus, viz. : — " /. De la hi qui rdgit la forme de la ciUhration du mariage. " Article premier. La loi qui rSgit la forme de la ciUbration du mariage est celle du pays ou le mariage est ceUbri." In form at least this attributes a coercitive and not a permissive force to the rule " locus regit actum." This mistake rendered it necessary, in the interest of freedom of conscience, to add several subsidiary articles; but even they will not satisfy the requirements of the case. If it had simply been provided that, " in so far as matters of form are concerned, the validity of a marriage ceremony is sufficiently secured if the forms of the place where it is celebrated are observed,'' then article 2 and the first half of article 3 might have been dispensed with. "Art. 2. Seront toutefoisreconnuspartout comme valables quant d,la forme: — " 1st. Les mariages c6Uhr6s en pays non-chr^tiens conforviiment aux capitulations en vigueur. " 2nd. Les Tnariages diplomatiques ou constdaires c6Uhr6s daTis les formes prescrites par la loi du pays de qui relive la ligation ou le consulat, si les deux parties contractantes appartiennent ii, ce pays. " Art. 3. Si dans un pays la forme de la ciUhration est purement religieU'Se, les strangers doivent itre autorisis in cilihrer leur mariage selon les formes (Noireterre, 1881, J. viii. p. 529) ; and that, in order to ascertain whether a hiasband has, in settling provisions on his wife, exceeded the one-fourth part of his estate, which is the limit of this provision by Prench law, no account can be taken of real estate abroad (Leroy de Chaumont, 1879, J. vi. p. 549).] '' For instance, by the law of Hamburg, children of the first marriage have in their step-parent a guardian who is charged by law witli their aliment and upbringing. Baumeister, Hamburg. Privatr. ii. p. 144. This is not the case according to the common law of Rome. 9« Boullenois, i. pp. 564-569 ; Savigny, § 379 ; Guthrie, p. 298. ""> Argentraeus, No. 8 (this writer correctly notes that foreign real estate is not computed in reckoning the tertia pars which the Coutumes of Bretagne allow one spouse to give to the other) ; Rodenburg, ii. c. 5, § 1 ; Hart, iv. 43 ; Ziegler, Dicast, Concl. 15, No. 21 ; J. Voet, in Dig. 23, 2, § 85 ; Molinaeus, ad Leg. i. C. de S. Trin ; Stockmanns, Dec. 25, No. 10 ; Cochin, (Euvres, v. p. 80 ; Petr. Peckins, de Testament Conjug. ii. c. 28, No. 5 ; Hofseker, de eff. § 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. 428 bar's international LAM'. . [§ 190a Idgales de leur pays d'origine ou devant les autoritis diplomatiques oiv consulaires du mari, mSme si dans les pays ou Us sont accrdditds leur qualiU d'offlcier d'Hat civil n'est pas reconnue. " Art. 4. Chaque mariage contracts co I'itranger doit itre constats par un document officiel et communiqud aiix autoritds du pays d'origine du mari. " II. De la hi qui rigit les conditions ndcessaires pour que le mariage puisse Ure ciUhri. " Art. 5. Pour que le mariage puisse itre ciUhri dans un pays autre qiie celui des ipoux ou de I'un d'cux, il faut que le futur et la future se trouvent dans les conditions prdvues par leur hi nationale respective en ce qui eoncerne : — "1st. L'dge. " 2nd. Les degris prohihis de parenti. " Zrd. Le consentement des parents ou tuteurs. " 4ith. La pichlication des hans. " II faut, en outre, que le futur et la future se trouvent dans les conditions prdvues par la hi du lieu de la ciUhration en ce qui coTicerne ; — " 1st. Les degris prohibh de parenti. " Ind. La publication des bans. " Art. 6. Les autorit6s du pays ou le mariage est ciUhri pourront accorder dispense des empicliements risultant de la parents ou de Valliance entre les fidurs ipoux, ou du difaut de consentement de leurs parents ou tuteurs, dans les cas et dans la mesure ou cette faculti appartiendrait, en vertu de la hi nationale des futurs, aux autoritds de leurs patnes respectives. "Art. 7. Les autoritis diplomatiques ou consulaires seront admises a ddivrer des certificats constatants que leurs nationaux qui se proposent de contracter mariage se trouvent dans les conditions voulues par leur hi nationale. " III. Be la hi qui rigit les conditions de validitd a difaut desquelles le mariage ciUlri pourra itre annuU. " Art. 8. Pourra itre annuli le mariage contracti en dehors des conditions exigies par la hi nationale de I'un des ipoux, en ce qui eoncerne : — " 1st. L' ge. " 2nd Les degris prohihis de parenti ou d' alliance. " Zrd. La publication des bans. "Art. 9. Pourra igalement itre annuli le mariage contracti en dehors des conditions prescriter par la hi nationale du futur, en ce qui eoncerne le consentement des parents ou tuteurs. The distinction as regards the different kinds of impediments in the way of marriage, which lies at the foundation of these proposals, is not, strictly speaking, sound. In the case of a marriage which two foreigners propose to celebrate, we can only justify the observance of the law of the place of the ceremony as to forbidden degrees of affinity or consanguinity in so far as the consummation of such an union is by that law a criminal offence. It is no matter of concern to our State whether two foreign spouses, who are only temporarily present in this country, are or are not nearly related to each other. On the other hand, the power of dispensation, § 190a] PROPOSALS OF THE INSTITUTE OF INTERNATIONAL LAW. 429 which by article 6th is given to the officials of the State in which the marriage ceremony takes place, goes too far, if it is expected that the State to which the spouses belong will respect that dispensation, if it should be given. If, however, all that is meant is that the officials of the State, in which the marriage is celebrated, may be authorised to proceed with the marriage, then there is no reason for restricting the powers of dispensation to the cases which are mentioned, if it should happen that the lex loci actus recognises dispensations in other cases. Lastly, the distinction which is taken in article 9th between different kinds of impediments to marriage, with reference to the process of annulling a marriage, cannot be approved. If there is any distinction to be made at all, if it is not simply to be said that any offence against the personal law of the wife in the same way as any offence against that of the husband shall constitute a ground for annulling the marriage, then we should refuse to give effect to the plea of near kinship as a ground of nullity, supposing that that plea were founded on the law of the wife alone, and were not to be found in the law of the husband ; on the other hand, again, we should in such a case recognise that a failure to obtain the consent of parents and guardians must have an international effect. The question in this latter case is truly one which involves the protection of a woman who is minor, or is in a dependent position in a family. To say that this protection is i'pso facto to be lost, from the fact that the wife has actually followed the husband into his country, or has by force or by craft been carried there by the husband, may fit in with the prehistoric idea of marriage by seizure, but will hardly fit in with the spirit of modern international law. The error of such a distinction becomes . all the more prominent if we observe that, by some defective process of reasoning, the opposite result is reached in the case of the impedi- ments to marriage arising from a defect of age, or from a failure to publish the banns, both of which stand in close connection with the requirement of parents' or guardians' consent, or at least may do so according to the positive provisions of some systems of law. The resolution on this point taken by the Institute runs directly in the teeth of the principles of the modern Franco-Italian school. There is room for debate whether the rules of private law have in themselves extra-territorial effect, with no other limit than the territorial jus publicum of some other State ; but the directly contrary proposition here affirmed by the Institute is un- doubtedly wrong: — "IV. Be la loi qui regit les effets du mariage et Us contrais matri- moniaux. " Art. 10. Les effets du mariage sur I'itat de la femme, et sur I'Mat des en/ants nis avant le mariage, se r^glent d'apres la loi de la nationalitS d, laquelle apartenait le mart lorsque le mariage a M contracts. " Art. 11. Les droits et devoirs du mari envers la femme et de la femme envers le mari sont reconnus et protiges selon la loi nationale du mari, sauf les restrictions du droit public du lieto de la residence des 6poux. "Art. 12. Le regime des biens des ipovx embrasse tous les biens des ipoux. 430 BAK'S INTERNATrONAL LAW. [§ 190a tant mobiliers qu'wimobiliers, sauf les immeubles qui sont rigis par une loi spiciale. "Art. 13. Les contrats matrimoniaux relatifs avx Mens des ipowx, sont r4gis, quant t, la forme, far la loi du lieu ou ces contrats ont iU conclus. Doivemt toutefois Stre dgalement consid4r4s comme valdbles partout, les contrats matrinfioniaux fails dans les formes exigies par la loi nationale des deux parties. " Art. 14:. A difaut d'un contrat de mariage, la loi du domicil matrimon- ial — c'est A dire du premier 4tablissement des dpoux — r^git les droits patrimoni- aux des ipoux, s'il n'appert pas des circonstances ou des faits I'intention contraire des parties. "Art. 15. Un changement du domicil ou de la nationaliti des ipoux ou du mari n'a aucune influence sur le rigime une fois itdbli entre les ipoux, sauf les droits des tiers. ' " V. De la loi qui rigit les effets de la nullitd de mariage proTioncie dans le pays de I'un des ipoux. "Art. 16. Lorsqu'un mariage valahle d'aprh la loi du pays de I'un des contractants aiura iti diclari nul dans le pays de l' autre, le mariage devra Stre considiri comme nul partout, sauf les effets d'un mariage putatif. " VI. De la loi qui rigit le divorce. "Art. 17. La question de savoir si un divorce est admissible ou Twn dipend de la Ugislation nation^ale des ipoux. " Art. 18. Si le divorce est admis en principe par la loi nationale, les causes qui le motivent doivent itre celles de la loi du lieu ou Paction est intentie. Le divorce ainsi prononci par le tribunal compitent sera reconnu valable partout." Of these articles, article 10, in the first place, is incorrect. Apart from the consideration that the rights of children cannot be disposed of as part of this subject, we cannot see why any person, who may, according to the personal law which he enjoys at any particular moment, legitimate a child, should be prevented from doing so by the operation of a personal law, which was no doubt regulative of the relations of the spouses at the time at which they were married, but has now no further operation upon their personal relations. See infra, § 192. Another error has been committed in taking as the basis for the reaula- tion of the matrimonial property the law of the matrimonial domicile, instead of the national law of the husband. This is wrong, both with reference to the resolutions passed at Oxford as to the effects of nationality on matters of private law, and also with reference to the concluding words of art. 13. If art. 14 is to stand, we must substitute "par la loi du domicile matrimoniale" for "par la loi nationale" in art. 13. Art. 18, which I hold to be untenable, was presented in the same form in the Heidelberg resolutions of 1887. See supra, § 178. § 191] PARENTS AND CHILDREN. 43 1 II. EELATIONS OF PAEENTS AND CHILDEEN. A. PERSONAL RELATIONS IN GENERAL. § 191. The purely personal relations of parents and children are, like the personal relations of the spouses, to be determined by their personal law, or the law of their nationality. Eights, however, which must be held by the law of any particuluar State to be immoral or contrary to the principles of the freedom of individuals, cannot be put in force within that State. The result is that a father or mother has no more right of correction than is warranted by the law of their own home, and no more than the law of the place, in which it is proposed to exercise that right, permits.^ A French father has the right given to him by the Code Civil (art. 376, 377) to have, in certain circumstances, his minor son, who is not forisfamiliated, detained in a house of correction, but he does not enjoy any such right in a country which does not ascribe any such extensive scope for the father's powers. But a foreign father has just as little claim to exercise this right in France, if his own domestic law does not invest him with it. If this foreign law does not assign to the family relation, in order to insure due respect being paid to the father, so extensive a power as this, the law of France has no reason for doing so. Public order is sufficiently protected by means of the public criminal law, which also lays obligations upon children.^ The mother, too, upon the father's death, assumes rights of a similar kind, in so far only as the domestic law of the marriage allows her to do so. It is plain that, by the acquisition of another nationality, the rights of the parents may be altered.^ The same rules apply to the right of the father, or the mother, as the case may be, to settle the religious training of the children.* But if by the operation of some particular legal ^ Wiichter, ii. p. 188 ; Stobbe, § 34, note 31 ; Uiiger, p. 195. " To the same effect Fiore, §§ 161, 162 ; Brocher, § 105 ; Asser-Rivier, § 56 ad fin. ; and particularly Weiss, p. 746. It is, however, being more and more recognised in France, that the patria potestas is not a droit civil to the effect that foreigners are debarred from it in France. Of. C. de Paris, 2nd August 1874 (J. i. p. 32), and Weiss, p. 749, note 1. ' Asser-Rivier, ut cit. * Where, however, there is doubt, any permanent arrangement, which has been arrived at in accordance with the law of the earlier domicile, must continue to be respected in the new domicile, even although the law of the new domicile should pronounce contracts, as to the religion in which children are to be educated, to be null. Again, in case of doubt, we must hold that the provisions of the law of the place of residence, as to the religious upbringing of children, have no application to the children of foreigners, and in competition with the national law of foreigners, have no compulsory force. To this effect is the interesting decision of the Austrian Minister of Education, of 31st March 1881, reported in J. viii. p. 236. The question was whether a Prussian subject domiciled in Austria could exercise the right, which by Prussian law he had, of settling the form of his children's religious education. The Austrian minister rightly decided that the Austrian law could do nothing more than determine the proper form for the declaration of the father. 432 bar's JNTERNATIONAL LAW. [NOTE M fact, such as a decree of divorce, the taother has acquired special rights in reference to the upbringing of the children, these will not be touched by a subsequent change of nationality on the part of the father : it may be that they will require to be made good in the new frnim which the father has acquired. (To this effect a judgment of the Supreme Court of Vienna, of 2nd June 1881 ; Seuffert, xxxviii. § 1, a judgment which in this way recognised the consequences of divorce according to the law of Bavaria ; so, too, judgments of the Supreme Court of Bavaria, of 16th December 1876, and of the Supreme Court at Celle, of 5th October 1877 ; Seuffert, xxxii. § 203, xxxiii. § 97.) If the child has a different nationality from that of his father, the latter has no more extensive rights than are allowed him by the law of the child's nationality ; e.g. if the consent of the father is not needed for the betrothal or marriage of the child, it is of no consequence that the father may by his own personal law refuse to give such consent, and by doing so stop the betrothal or marriage.^ NOTE M ON § 191. PEESONAL RELATIONS OF PARENT AND CHILD. [In England the extent of the authority of a foreign parent over his child is the same as that of an English parent (Westlake, p. 48). Boyle, L. J. C, in Edmonstone v. Edmonstone, 1st June 1816, Eac. Coll. gives an opinion which, read literally, implies that Scots law is the same. His lordship refuses to admit that persons coming into the territory of a foreign State can insist on having effect given to the peculiarities of their own law. But the fair interpretation of the passage seems to be that placed on it by Lord Eraser (Parent and Child, p. 590), which assimilates the law of Scot- land very much to that of the text, recognising the foreign law, except in so far as it offends our sense of propriety, order, or decency. 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 Erance, the powers conferred by the patria potestas 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 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 Eraser, 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 ^ So decided by the Appeal Court of Celle, 15tli January 1870, Seuff. xxiv. § 2, in the case of different domiciles. To the same effect Stobbe, § 34, note 31. Vesque v. Puttlingen is of opinion that by the law of Austria, as the patria potestas is rather a means for protecting the child than a prerogative of the father, where they have different nationalities, the rights of a foreign father over an Austrian child will be determined exclusively by the law of Austria. 192] CONSTITUTION OF PATERNAL AUTHORITY. 433 between the notion of domicile with us, and of nationality in French law, as conferring 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.] b. paternal authority. 1. Constitution of this Authority by Birth or Legitimation. § 192. The personal law which attached to the father of a child 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 .1 The place of the marriage in particular may be set out of account.^ The same law will determine the effect of the special presumptions with regard to paternity (the French action en desaveu, cf. Code Civ. 312 et seq.) : these are not rules for convincing the judge, which would be subject to the lexfori,^ but substantial rights of the child;* as a French author has said, we have here to consider the step by which they enter the families that make up the nation. 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 presumptions 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, we must apply the maxim " locus regit actum" if we are satisfied of the existence of an intention to recognise the child, an intention which in certain circumstances — the act of recognition being essentially an act which falls under the personal law of him who makes it — may be open to doubt.^ 1 Bouhier, chap. 24, No. 122 ; Gunther, p. 732 ; "Walter, § 46 ; Gatfd, No. 430 ; Savigny, § 380 ; Guthrie, p. 301 ; Unger, p. 195 ; Burge, i. p. 89 ; Foelix, i. § 33, p. 82. 2 Cf. Trib. Lesparre, and 0. de Bourdeaux, 27th August 1877 (J. v. p. 39), and Clunet (J. T. p. 40). Thus the children of a Frenchman may he legitimated by his marriage, which has taken place in England. * Burge, i. p. 88, is of another mind. * See infra the law of process as to the presumptions which come in for particular legal relations. Bouhier and Foelix ; Asser-Rivier, § 66, note 1 ; Duguit, J. xii. p. 353 ; Savigny, § 380 ; Guthrie, p. 301 ; Unger, p. 195 ; Stobbe, § 34, note 30 ; Flore, § 136 ; Brocher, Rev. v. p. 57 ; Laurent, v. § 242, take the same view as that stated in the text. Even Burge recognises that the so-called prmsiwiptiones juris et dejure, 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 regulations for the persuasion of the judge. The rules as to possession d'itaf are part of the same subject. If the disposal of an inheritance depends on the birth of a child in wedlock, and if the legitimacy must be questioned within a certain period, it is the personal law of the father which must regulate all such questions. See Fiore ut cit. ; Savigny (§ 377. Guthrie, p. 284) is wrong. " A child begotten and born 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. Foelix as cited, and § 73, Demangeat ; Laurent, v. § 252 ; Duguit, Forme, p. 97, and Eivier, § 58, note 1 (see, too, C. de Paris, 2nd Aug. 1876, J. iv. p. 230), propose that the rule " loms regit actum" should not be applied, if the personal law requires an Ade authentique. That is an arbitrary rule. The personal law may, no doubt, restrict the recognition of the rule ; 2e 434 bar's international law. [§ 193 Legitimation of bastards, either by subsequent marriage or by an Act of the Government {Rescriptum principis), is nothing but a legal equalisa- tion of certain children, illegitimately begotten, 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 actual personal law of the father, the latter must be determined * also by the personal law of the father at the date when the fact said to infer legitimation took place. If, then, there is a question of legitimation per gvibsequens matrivionium, the child is legitimate, if that is the result of the personal law which the father enjoyed at the time of the marriage. This is now the prevailing view.' The result, to take an illustration, is . that, if the father at the time of the marriage is a Frenchman, and the child up to that time has not been recognised, the 331st article of the Code Civil prevents him from sub- sequently legitimating the child unless, be it remarked, he subsequently again changes his nationality, and the personal law so subsequently acquired by him gives effect to a subsequent act of recognition. Decisive Date. § 193. 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 but no such restriction is to he presumed from the fact that the personal law requires public intimation of any recognition which is to take place in its own country. See Fiore, § 139, to the opposite effect, who, however, properly points out that "non-authentic" documents or actes are of course much exposed to dispute, and do not, by virtue of the rule ' ' loms regit actum, " take rank in all respects with "authentic" documents or actes. Cf. Clunet, J. iv. p. 234, and C. de Besancon, 29th July 1876, J. iv. p. 228. ^ 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. Stobbe ut cit. ' Fiore, § 147 ; Asser-Rivier, § 57, ad fin. ; Westlake Holtzendorff, § 60; Westlake, Eev; xiii. p. 440 ; Wharton, § 241, according to the decisions cited by him, notes that in English practice legitimation is only recognised if it is in accordance both with the personal law which the father had at the time of the birth of the child, and with that which he had at the date of the subsequent marriage. Wharton says the American practice is not yet established. Personally he pronounces decidedly in favour of the view expressed in the text, to which modern authority in England also is inclined. [As to the rule in Scotland, see infra, p. 440.] 8 Merlin, Qiiestions 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, § 197. The decision of the Cour 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. Durand says that the national law of the child gives the rule : legitimation is not a right of the parents. The question, however, is, does the child belong to the family founded by the father, or does it not ? Durand deduces from his principle this rule, that the form of recognition, if not determined by the rule "locus regit actum," is settled by the national law of the child. § 194] legitimation: decisive date. 435 is established a legal relation between it and its father, which must he 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 there- fore a legal relation is established by the birth between the child and the putative father ; yet the very meaning of an illegitimate birth is that a •family relation, which is all we are now concerned with, certainly does not arise between them. 'Nothing can be inferred from the purely arbitrary expression '' capacity or incapacity of the child to be legitimated ; " it inight 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 personal law 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 other, if a recognition of the child made under a prior personal law really confers a right upon it conditional upon the subsequent marriage, then this right is not lost by a change of the personal law.^^ Although the new personal law does not invest the recognition which has taken place within its bounds with the force of legitimation, it will certainly not deny to a recognition made within the territory of another law the effect which that law attached to' it'. Where the Father and the Child are subject to different Personal Laws. § 194. The question may, however, be raised : If the father and the child belong to different States with distinct legal systems, is it . sufficient that there should be legitimation by the law under which the father lives, or must it also conform to the law of the child ? ^^ 9 Schaffner, pp. 50, 51. • i» Savigny, § 380 ; Guthrie, p. 302. '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 Schaffner, pp. 51, 52, 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, appeal to that personal law. among many successive personal laws of the father which is most favourable to him. But the fact of the birth in itself does not establish any family relation between the bastard and the father. Savigny says in reference to the Prussian A. L. E. § 380, 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." 12 [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'AlbertviUe, 1879, J. vi. p. 393.] 436 BAI^S INTERNATIONAL LAW. [§ 194 These questions have recently been thoroughly discussed by Duguit ^* and Weiss (p. 733)." Duguit pronounces in favour of the exclusive competency of the personal law of the father, while "Weiss takes the opposite view. Duguit's opinion is that the law which is recognised as applicable to the head of the family, in matters concerned with family law, must also furnish the rule for all the members of that family. In any other view we should be landed in this illogical position, that the legitima- tion would be effectual as regarded the father, but ineffectual as regarded the child. If, however, the question raised is a question as to the validity of an act of legitimation, the first point for determination is whether the child is a member of the family or not. The bond between father and child must be made fast at both ends, just as in marriage the bond between husband and wife must hold on both sides, before the personal law of the wife can be made to follow that of the husband. On principle, therefore, the opposite of Duguit's view is the sound view.^^ But, in reaching a practical solution of the question, we must consider the following matters. If the personal law of the child requires more conditions to be observed before it will pronounce that a child has been legitimated, the reason of that is not any anxiety for the interest of the child so much as for that of the father and his family, e.g. the other children, his collateral relations. But the State to which the child has up to that moment belonged has no interest in that matter, and if that legal system which is charged with the protection of the family is willing to hold the child legitimated, there is in truth no conflict between the two systems. That system to which the child has hitherto belonged says: "If the father belonged to me, I would not hold the child to be legitimated." That involves no contradiction of the other system, which says : " Since the father belongs to me, I do hold the child to be legitimated." No doubt we must assume that the assent of the child is given in due legal form, for legitimation can only takfe place against the child's wish, if the personal law of the child forces that upon him or her.^* But, in by far the greater number of cases, it will be beyond all doubt that the legitimation is advantageous to the child, and the child, or its guardian, can subsequently signify its approval of it and found upon it. Thus in practice the personal law of the father is in the general case the only law which is invoked. What, however, are we to say if the personal law of the child in the case in question absolutely forbids legitimation as contra honos mores, whereas the personal law of the father permits it ? If, for instance, the latter permits while the former forbids the legitimation of an adulterinus ? Fiore, § 137, takes the view that, as we are here concerned with a prin- ciple of public order or police, the legitimation can have no operation in 13 J. xiii. pp. 515, 516. " In the same way, v. Martens, § 74. 16 See Gand, § 46, and Brocher, Nouv. Tr. § 44, p. 154. M It is different with the rights of the mother ; for in that case it is possible to have a convincing proof of the relationship. Cf. Gand, § 458. § 195] CONSEQUENCES OF LEGITIMATION. 437 any country which does not admit it in the particular circumstances of the case. Weiss must, of course, reach the same result, as he requires in all cases a concurrence of these two legal systems. But if we examine the matter closely, we find that all the rules as to legitimation rest upon considerations of public order, upon "toni mores," but that the point is that different legal systems have different ideas as to what public order, "honi mores," is. This argument will therefore prove everything, and therefore nothing.^' It is, however, of the highest import- ance, that the laws which prohibit such legitimation, e.g. the laws of France and Italy, regard it as unseemly that a family connection between the aduUerinus and his father should be publicly recognised. If, however, the aduUerinus by means of this legitimation enters a family which be- longs permanently to a foreign country, what possible interest can the other legal system have in hindering the formation of the family tie ? Just as much interest as it would have had in refusing to recognise the legitimation if both persons had from the first belonged to the other State, i.e. no interest at all. The prohibition, the object of which is not so much to put the innocent child at a disadvantage as to protect the purity of families which have a permanent connection with the State, has no meaning in so far as families are concerned, which have no such permanent connection.^* Privileges of Eank. § 195. Peculiar difficulties are presented by the case where the original personal law of the father refuses to recognise the subsequent marriage which he has contracted under the sway of another personal law (by being naturalised in another State), as a ground for legitimation, and ques- tions thereafter arise as to some special privileges of rank in the former country. In a case of that kind the civil tribunal of the Seine, of 30th May 1879, recognised that the legitimation in itself must be ruled by the national law of the father at the date at which it took place, but that in ^'^ By such considerations it might be sought to show that, if the law of the place of the marriage necessarily associates legitimation with marriage, the children even of foreigners would have to be recognised as legitimated in the country where the marriage took place, even although the personal law of the father knew no such rule. This is a palpable error. It has, however, found some favour in French jurisprudence by virtue of the magic sound of the words, "ordre public," which will justify anything. See C. de Kouen, 5th January 1887, affirming the judgment of the court of first instance (J. xiv. p. 183) and on this disputed question generally, Duguit (J. xiii, p. 513). 18 Jiore, § 137, is of another opinion. On the other hand, the law of the Argentine Republic says, so far soundly (Daireanx, J. xiii. p. 297), on this point : " La reconnaissance des enfants aduUdrins, incesfueiix ou sacriliges {e.g. children begotten by priests) itant prohiMe par dispos- ition d'ordrc public, elle ne pourra Urc demandie ni execuUe dans les limites du territoire, qiumd bien mSme la loi du domicile des parents au moment de la naissance ne s'y opposait pas ; mais eelle pratiguie hors du territoire produira tous ses efets dans la Bipublique si elle itcbit permise dans le pays ou elle a iti execuUe. " ■ 438 bar's international law. [§ 196 such a case the legitimation could hot confer titles of n'obility belonging to the' father in virtue of a personal law which he had previously enjoyed.^' This decision is wrong, if we assume that the father's noble rank was recognised when he took his new nationality; for in that case his rank passed to his child in conformity with the new personal law, and persons who belonged to the family of the father, in particular his collateral relatives, had no right to forbid the child to bear his name, title, and ai'ms,^" even in the State to which they themselves belonged, and to which the father once belonged. It is quite sound, however, to say this much, that the child cannot make good his relationship to those other members of the family ; for the law of the country to which the family belongs can deny this effect to the act of legitimation.^^ Is THE Personal Law of the Mothee to be considered ? § 196. The application of the personal law of the father to the ques- tion of legitimation may, especially if the law of the domicile be held to be the personal law, lead to the mother being deceived, or put difficulties in the way of the subsequent marriage. Considerations of this kind prompted a judgment of the French Court of Cassation, of 23rd November 1857, which has been much canvassed. It recognised, on the ground of French legal principles, an act of legitimation in a case in which a foreigner, an Englishman, married a French woman : " Attendu que la Ugislation et la jurisprudence arvglaises . . . ne pourraient au cas, ou le pkre seul est Anglais et domicilii en France, la mire et les enfants nis en France, enlever d, ceitefemme le droit qu'elle tenait de la hi Ft^ancaise, qui itait la hi du domicile matrimonial d, laquelle les futurs Apoux sont riputis avoir eu la volont6 de se^ soumettre . . ."^ But the law of the family cannot be made to depend in this fashion on the expectations of the parties. To do so would be to place it on a level with ordinary contract law, without being able to found upon the very consideration which is the determinant in ordinary contract law. For each party will certainly, if he or she is wise, inform him or herself in the case of a marriage contract, if ever, as to the personal law of the party with whom he or she is about to contract. Besides, the result of such conclusions, drawn as they are from the supposed interest of subjects of " J. vi. p. 391. The German Imperial Court has given an analogous decision (10th March .1880, Dec. ii. § 39, p. 145), to the effect that a member of a family belonging to the high German nobility, who is domiciled abroad, canoot contract a marriage with a wife of the rank of an ordinary citizen, so as to give the children right ±o the title, arms, and name of the father. Here it is to be noted that, in the view which the Imperial Court holds firmly up to the present moment, it is domicile whieh regulates the personal law. 2" Cf. what was said supra, § 98 (p. 216),' on the law of names. 21 So, too, Dernburg, PandekUn, i. § 46, note 10, as to the decision of the GermSn Imperial Court cited in note 20. Laurent, v. § 289, seems to agree with the decision of the FrenCli Court. "2 Of course, we find in this case also an appeal to "ordre public " as an ultimum refugmm. § 197] CONSEQUENCES OF LEGITIMATION. 439 the country, and dependent exclusively on the theories of domestic law, is to set up at once different modes of treating the relation in different coun- tries. In the father's country, in the case just mentioned, the children would be regarded as illegitimate, whereas their mother's country treats them as legitimate. We should, however, be just as little inclined — although Duguit is of another opinion — to make an exception in the case of naturalisation being obtained in fraudcm, legis, i.e. in the case where a man gets himself naturalised in another State, in order to bring about in that other State the legitimation which is not permissible in his own. This exception breaks down in the same way as the theory of naturalisation being invalid because effected infraudevi legis, which we have already tried to refute. As Duguit himself owns, the proof of the conduct of the person being infraudem legis is difficult enough, while uncertainty as to the status of the family, and challenges of it, bring unhappiness and ruin upon the family, without any advantage to the State. -t>^ Effect of Legitimation on Succession. Theory of English Law. § 197. 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. 2* The judgments of the English courts ^^ differ from this, and require, in order to found a claim to succession in immoveables, 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 maybe explained in this manner: The exclusion of children begotten out of wedlock,^^ who have been recognised by the father, depended, in earlier ) ^ Schaffner, p. 53 ; Bouhier, chap. 24, No. 123 ; Gunther, p. 732 ; Hommel, Eha^s.- Quaest. ii. obs. 409, No. 3 ; Hert, iv. 14 ; BouUenois, i. pp. 62, 63, 130, 131. ^ Story, § 87a, and Lord Brougham (Story, § 93;;) pronounces in the same sense. See[ judgment of the Supreme Court of Appeal at Oldenburg, 5th March 1853 (Seuffert, vi. 433, 434) : " The law applicable at the time of the birth 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." 25 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 hx loci vel rei sike has prescribed." Wharton, §§ 242, 243 ; Westlake HoltzendorfT, §§ 168, 168a ; see too, Foote, p. 39. 26 Story, 87a. 2' Burge, i. p. 90 ; Blackstone, i. 451 ; Stephen, ii. 299. The bastard is counted a Jilius nullius in questions of succession to moveables also ; but the Crown, can grant special privileges, Stephen, ii. 300. But a child validly legitimated according to the law of his father's domicile, can in England succeed in moveables. 440 bar's INTERNATIONAL LAW. [NOTE N English law, not only upon the legal uncertainty as to their birth — which can only be removed by legitimation, as is the case in modern Eoman 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 fact that one who is pronounced incapable by his own lex domicilii cannot succeed db 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 con- dition of a claim of succession in immoveables. If, as is probable, the remnants of feudal principles shall still more pass out of memory in England, a time will come when, even in questions of succession to real estate in England, an act of legitimation, valid in accordance with the personal law, will receive full effect. NOTE N ON §§ 192-197. LEGITIMATION. [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 (Eraser, 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 ^er subseguens 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 ^ The exception which the law of England makes in the case of a bastard puis ni can only be referred to equitable principles. ^ See supra, § 137, 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 legitimacy generally ; 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. Molinseus, ad Consult. Paris, § 8, gl. 1 , Nos. 36-46, gives a decision similar to the Euglish decision, and Bouhier, chap. 24, No. 123, also, in the case of a statute calling only children " nis en loyal mariage " to the succession. Westlake gives the same explanation. So long ago as 1840, Lord Brougham took a different view in the well-known case of Birtwhistle v. Vardill [7 CI. and Fin. 940], decided by the House of Lords against his views. Westlake says that we have here to deal with no rule of international law, but with a rule of feudal law. The law of Scotland differs from that of England. 3» Phillimore, § 539. NOTE TV] LEGITIMATION. 44I 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 Monro's case, 1840, 7 CI. and Fin. p. 842, all held the view that if such a case should occur, the law of the domicile 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 incestuous 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 (Courbin v. Verri^res, C. de Bour- deaux, 1877, J. v. p. 39). On the question as to the form of legitimation — i.t. 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 Besancon on Appeal (Balmiger v. Dutailly, 1876, J. iv. p. 228) 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 succession ; such children were there- fore 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. H^ritiers M^chain, 1876, J. iv. 230) that bastards, if legiti- mated 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 sufficient. 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 ioTWS mores that the decision of the Court of Paris proceeds. Again, the French courts have held (Joly v. Perkins, 1887, J. xiv. p. 183) 442 bar's international law. [§ 198 that, legitimation being a matter of public order, it may result from a marriage which has taken place in France, the husband being by nationality an Englishman, and that this result will ensue all the more readily, if the wife is a Frenchwoman.] Legitimatio per Eescriptum IN paeticulak. § 198. In what we have said, we have proceeded on the footing that legitimation, if the consent of the child be validly given, is dependent solely on the personal law of the father, and that, therefore, if this law allows legitimation by an act of the head of the State, it matters riot to enquire whether some other legal system, in particular the personal, law which the child has hitherto enjoyed, also recognises this legitimation ; but that on the contrary legitimation per reseriptum is to be regarded in inter- national law on exactly the same footing as legitimation per subseqiiens matrimonium. This opinion, which as we think is the prevailing opinion in German jurisprudence, and in which, too, Fiore, § 149 ; Phillimore, § 542; and Wharton, § 249, concur, has, however, often been disputed. In the first place, it has been said that an act of that kind by a sovereign, or possibly by a sovereign corporation, must necessarily have its operation confined to the dominions of that sovereign, for he has no authority. beyond these limits. But if it be true generally 'that the personal law of the father is to rule, that law must be allowed to say that legitimation can take place by means of an act of that kind. The legitimation is to be recognised, not because the sovereign is to exercise sovereign rights in another country, but because the personal law is to have effect there.^^ The opposite opinion, which is held by older writers,^^ is no doubt explained, and to some extent justified, by the imperfect legal capacity which, in the Middle Ages, and in many territories down to later times, clung to the bastard,^^ 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 '^ So, in particular, Foote ut cit. Gianzana, i. § 101, takes the opposite side in rather a peculiar way. '^ Duguit (J. xiii. p. 525) proposes to take an odd distinction, according as the legitimation is a form of which the parties have a right to avail themselves, or an act pf grace which is dependent oa the good pleasure of the sovereign. In the former case, the legitimation is to have extra-territorial effect, in the latter, not. This distinction cannot be maintained. The rule "locus regit actum" has no application to the legitimatio per rescriptum principis. The princeps cannot be approached except by a father who belongs to his State. It would be other- wise if legitimation could take place, for instance, by a notarial act, or by a declaration before a Qourt, which had no right to hold a caitsce cognitio. ^ Alb. Bran, de statut. art. xiii. § 51. "Et idea differt legitimMvs u, Ugitimo taiiquam imago db eo cujus imaginem Hpresentat, Et propter^a Salycetus dixit quod legitimatio nonfacii esse essehdaliter legitimam." Bald TJbald in L. 1, C. de S. Trin. No. 75; Chassensus ill Oonsuet. Burgwnd. Ruhr. ix. in'tit. de^ mains mxirtes. verb, va demeurer, Nos. 17, 18 ; P. Voet, ly. 3,, § 15 J Argentraeus, No. 20 ; J. Voet, de stab. % 7 ; Bartol. ad L. 1, C. de S. Trin. Alef. tio. 59 ;'Oocceji, defwnd. v. §§ 7, 8 ; BouUenois, i. p. 64 ; cf. Bouhier, chap. 24, No. 129. § 198] LEGITIMATION PER RESCRIPTUM. 443 grasp of his sovereign, and to leave it to the relatives of the person legiti- mated, by suspending the old German rule of law, which fotbade bastards either to succeed or, to a certain extent, to leave a succession.^* In view of the import which attaches to legitimation, when, as in modern times,^^ in most territorial systems, illegitimacy no longer works any diminution 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 rescriptum on the right of succession to foreign heritable property, that the sovereign is dealing with estate which lies beyond his territory : ^s 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.^^ But, in the second place, the more modern French school, while they reject the view of the older writers ^^ as to the effect of the legitimation being necessarily confined to the territory of the sovereign who bestows it, refuse to recognise this kind of legitimation, unless it is also recognised in the personal law which the child has hitherto enjoyed. In this way one who has hitherto been a French child in respect that the Code Civil has never sanctioned legitimation per rescriptum, can never be legitimated by the act of a foreign sovereign. But Laurent, in arguing in support of this doctrine that legitimation touches the status of persons, and that this status must be determined everywhere for Frenchmen by the law of France, proves too much. This rule would have to hold also in the case of legitimation by subsequent marriage, so that, in this case also, the personal law of the child would be the only rule. Of course, in determining the question of legitimation, we decide, but not absolutely, the question whether the child thereby changes its nationality .*'' ^ CtasBenEeus, 1. c. Eubr. viii. in tit. Des successions de dastards, verb. aft. intest. Nos. 32, 41, 250 ; Mynsinger, Observ. Gent. iii. obs. 26, Nos. 7, 8, 11 ; Gerber, U. Pr. R. § 39. ^^ Except in feudal law. See Gerber, § 110. ^ Several of the authors cited in note 34 take this ground. ^ Schaffner, p. 55 ; Wening Ingenheim, § 22 ; Miihlenbruch, § 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 France, although the Code Civil does not recognise emancipation per reseriptwm (cf. Code Civil, arts. 331-333 ; Zacharia, Civilrecht, iii. § 870). ^ Judgment of the Cour 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. ^ So Laurent, v. § 294. Weiss, pp. 734, 735. *> Eoote, pp. 44, 45, discusses another limitation which, is to be placed on the effect of legiti- mation, viz. : that the legitimation must not involve anything which is absolutely at variance with 'the law of the country in which it is proposed that it shall receive effect ; and he founds, iir support of this limitation, particularly on a judgment of Lord Brougham [in Fenton v. Livingstone, 1859, 3 Macq. 497]. If, for instance, the lex domicilii sanctioiii the marriage 444 bar's international law. [§ 199 2. Adoption and Arkogation. Emancipation. § 199. The constitution of the paternal authority by adoption or arrogation must be subject to the same rules which apply to its constitution by legitimation. The only difference between the two modes of constituting the paternal authority is that in the case of legitimation there is a natural relation between the parties, which is the occasion of it, and which dictates the form of it, whereas in adoption and arrogation the only originating element is the will of the parties. The important matter in adoption and arrogation for international law is the object which they are intended to effect, i.e. the entry of the adopted or arrogated person into the family of the person who adopts. As a matter of principle, then, both systems of law, viz. the personal law of the adoptive father, and that of the adopted child, must permit adoption.^ The conditions with which the adoption is hedged, are provided for this reason only, that the family of the adoptive father may be protected against the intrusion, more or less arbitrary, of foreign elements, or that adoption or arrogation may not prevent legitimation by subsequent marriage. Such conditions, from their nature, only fall to be considered if they exist in the personal law of the person who makes the adoption. The legal system and the State to which the child belongs have no concern with the constitution of the family of the adoptive father. Its only care is the welfare of the child, and thus none of the restrictive conditions which exist in the law of the child need be considered,^ except those which are intended to protect the person adopted from a hasty and disadvantageous adoption or arrogation.* If we are asked to consider in particular those restrictive conditions, which are set up in the real or supposed interest of public morality, none of these can be regarded, except such as exist in the country of the adoptive father. As a general rule, therefore, the conditions of the personal law of the adoptive father will come more into practical effect than those of that of the child.* If into which the parents of the person legitimated have entered, while the lex rei sitce holds it to be a crime, the legitimated child cannot inherit ai intestato under the lex rei sitce. But this is an offence against the leading principle of international law stated in § 36. What is said to be a criminal relation does not work itself out within the territory where the estate is situated. The decision is simply an echo of the theory which holds that all, even the most remote conditions of a real right, can only be determined by the lex rei sitce. 1 Of course, the actual personal law, i.e. that which existed at the time of the adoption, must rule. ^ The result is substantially the same if, with Vesque v. Puttlingen, p. 255 ; Fiore, § 152 ; Laurent, vi. § 31 ; Brocher, i. § 101 ; Nouv. Tr. § 46 ; "Weiss, p. 739, we allow the personal law of the adoptive father to determine his capacity, and the personal law of the child to determine his. ' S.g. the rule of the Code Civil, art. 346 : " L'adopdon nepourra en aucwn cos, avoir lieu avant la majoriU de I'adopU." ' * In my first edition I fell into error, in proceeding too exclusively upon the personal law of the adoptive father. Unger, p. 195, and Stobbe, § 31, vii. still follow this theory. Schmid has on this subject also a peculiar doctrine. According to hhn, the legal results of adoption § 199] ADOPTION. 445 English law knows no adoption in the sense of the law of Eome or of France, or if the law of Eome and the law of Italy exclude the adoption of a natural child, a thing which is sanctioned by other systems, the adoption of a child of English nationality is, for all that, possible by a Prussian who has his domicile in the province of Hannover, or by a Frenchman : and in the same way a Saxon subject ^ may adopt a natural child who has been French by nationality.^ There is, however, no doubt that in such a case the adoptive father could not make good any rights against the child, for these rights could only be acquired under the personal law of the childJ On the other hand, it is in our view unsound to attribute any effect at all, in any State you like, to an adoption which is invalid by the personal law of the adoptive father, and that even although the rule of law, which forbids adoption in the country of the adoptive father, is directly in contradiction of all the legal theories on which the system of the other State which is in question rests. Thus, for instance, adoption by a monk, who is by his own personal law incapable of adopting, has no effect even in such a country as France, where the status of members of religious orders is ignored to all civil effects. The same rule holds, e.g. in a case where adoption by a person of noble rank is forbidden unless with the sanction of the sovereign, and the necessity of obtaining this has been overlooked, even although in the country to which the adoptive son belongs, all special rights of nobility have, as a matter of principle, been swept away.^ How can it be asserted that a child has been admitted into the family of the adoptive father, if the law which directly regulates this family rejects the person who is alleged to have so entered it ? The rule "locus regit adwm"^ determines the form of the adoption. The personal law which is in itself applicable, may, however, expressly or by implication, exclude the application of any foreign forms. Again, if the law requires the approval of some court or some official to be obtained, and if it is competent for the court or official to refuse to approve, this is not a form i" in the sense of the rule " locus regit actitm." Approval of this must always be settled by the judge according to his own law, and thus if it does not permit adoption, all legal effect will be denied to an adoption validly carried out in a foreign country in which the adoptive father was at that time domiciled. ' Burgerl. Gesetzb.fur das Konigr. Sachsen. § 1790. ' Weiss, p. 740, is of a different opinion. ' The result would be a sort of one-sided adoption. ^ Weiss, p. 740. The theory of Ordre Public International is a bad guide here. ^ Bouhier, cap. 24, § 86 ; BouUenois, ii. pp. 48, 49 ; Merlin, Bip. Ptiissance PatcrnelU, vii. §§ 5-7 ; Hert, iv. 47 ; Hofseker, De off. § 21 ; Unger, p. 195 ; Weiss, p. 740. 1° IjDger. ut cit. note 139, and Vesque v. Ptittlingen, p. 256. Thus, e.g. in a foreign country an agreement may be made without the observance of any particular form, in place of the written or judicial form required elsewhere, but a man who happens to be in a foreign country cannot escape from the necessity of submitting the act of adoption to the proper per- sonal judge, as his personal law requires him to do. Wachter, ii. p. 185, note 308, in pro- posing to exclude the application of the rule "locits regit actum " in such cases, has this in mind. 446 bar's international law. [§ 200 kind can only be given by the officials of the State to which the persbn belongs/^ and it will often be necessary to have a double approval, one in the State of the adoptive father, and a second in the State of the child that is to be adopted. If the child does not, in virtue of the adoption, acquire the nationality ^^ of the adoptive father, then the rights of the child as against the father adopting him must be ruled by the personal law of the father, the rights of the father as against the child by the child's personal law. A different view proposes that the law of the adoptive father shall be the exclusive rule, while yet another theory takes that of the child as the exclusive rule. But, although it is true that in a question of adoption it is the rights of the child as against the adoptive father that come far most frequently into view, and that the law, even in France, refers the parties, in so far as the execution of the act of adoption is concerned, to the judge of the adoptive father's domicile,^^ it does not follow from this being the general course of matters that the personal law of the adoptive father is the only law appli- cable. In opposition to the argument that adoption operates a change in the status oi the child,^* we may refer to the fact that the child enters the family of his adoptive father. But both theories come into conflict with the leading principles of the law of succession. Now, adoption is a matter of special importance in the law of succession, and the course of succession to the adoptive father must be in accordance with his personal law, while succession to the child must be regulated by his personal law. With these rules the theory which we have adopted is in complete accord. What rights the child has against liis original family, and what rights they continue to have against him after the adoption, are questions that must be determined by the personal law of the child.^^ Is IT ONLY Natives of the same Country that can- Adopt ? .. § .20-0. The adoption of a nativ-e of this country by aioreigner must be recognised as competent and effectual, in so far as it is not expressly forbidden " So, too, Duguit, Forme, p. 99, with reference to Code Civ. 331. The rule would hold good, even if the judicial organisation and the powers of the ofiScials in the different conntries concerned were identical. ^^ It is obvious that, if both persons belong to the same nationality, the effects of adoption are dependent on the common personal law. By the English common law the lex rei sitce gives the exclusive rule for succession in real estate in this connection. Wharton, § 251 (p. 3&0): 1^ Laurent, vi.- § 39 ; Fiore, § 153. German authorities do not, as a rule, express any opinion on this matter. " So Weiss, p. 740. '5 Thus, too, Fiore, § 153. But does this proposition not contradict the principle adopted by Fiore, of fixing the relations of the adoptive children to the parents exclusively by the personal law of the latter? The quality of the tie which continues to subsist between the child and his original family may, to a certain extent, depend upon the quality of the tie which is created between the child and his adoptive parent. § 201] FATHERS RIGHTS IN CHILDREN'S PROPERTY. 447 by law. The adoptive father does not acquire any public office or trust, but at the most a family authority which belongs to the sphere of private law, and in matters of private law the principle of the legal equality of natives and foreigners prevails. The practice in France i^ is at present to the contrary, on the ground of the absurd theory of droits civik. It is required that both parties should be admitted to French nationality, or at least to the enjoyment of civil rights.^' Emancipation. § 201. The termination of the power of the father, be it by the child attaining majority or by its marriage, or by some legal process specially directed to this object, i.e. emancipation in the strictest sense, is — with due regard always to the rule " locus regit actum " — to be determined by the personal law of the father. If the holder of paternal power and the child are of different nationalities, subject to different personal laws, the power of the father must come to an end, although according to the father's personal law it would continue, if by the personal law of the child it is to come to an end.^^ A daughter is always emancipated by marriage, if the law of the new domicile makes the paternal power cease upon that event, since the wife follows her husband's domicile. The same rules as to the form of emancipation will prevail, as in the case of the form of the act of adoption. 3. Eights of the Father in the Peopeety of his Ohildeen. § 202. 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 personal law 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 ^' Cf. Fcelix, i. p. 87 ; Gand, § 465, and the recent judgments reported in J. ix. p. 187, and xi. p. 179. On the other hand, Mailher de Chassat, § 225 ; Demangeat on Fcelix ; and what was said supra, § 96, as to legal capacity. Bard, § 153 ad fin. 17 As a rule, adoption has not the effect of founding a new nationality. See supra, § 53 ad fin, " So 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 Boman law the father as a rule enjoys both. ^ The personal law 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 Borne, terminates with his 21st year, since by the law of England the authority of a father tenninates then. Merlin, Rip. Puissance Paternelle, vii. § 1. 448 bar's inter[7ational law. [§ 202 the common law of Rome and modern French law, the personal law 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 is not, like the rights of the spouses, subject to an unlimited power of contract in the parties interested, but rests upon the relation which jus publicum confers. This is determined by the actual personal law. Lastly, however, it cannot be the intention of a new personal law to disturb rights of property which have already arisen.* On these reasons depends the correctness of the prevailing theory, which holds the personal law of property at the time of the alleged acquisition to be the rule, and not the personal law which existed at the date of the child's birth.' But, of course, in such matters the rules " Ees succedit in locum pretii," and "pretium succedit in locum rei," must be recognised, otherwise we should either find that an unnatural limitation would be placed on the administration of the property which belonged to the child, or a complete breach would be made in our principle. ^ Capacity to act is to be determined exclusively by the personal law. The lex rei dice should rale, according to Merlin, Mip. Puissance PatemeUe, 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 moveables 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 English law, correct. Merlin as cited : " La hi qui donne cb unp^re I'usufruit des Mens de sonfils doit Hre rttlle, parceque son objet est riel." The theory that in the case of real property the lex rei sitce rules, and that we have then to do with what is called a statut riel, has more modern adherents in French jurisprudence, such as Troplong (J. v. p. 168). For the general validity of the lex domicilii, see Seuffert, Comm. i p. 244 ; Walter, § 46 ; Bouhier, chap. xxiv. No. 47 ; Mittermaier, § 30, p. 116 ; "Wachter, ii. pp. 187, 188 ; linger, i. p. 195. Stobbe, § 34, after note 31 ; Fiore, § 164 ; Laurent, vi. § 1. * 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, § 463o, coincides [Gambler v. Gambler, 1835, 7, Sim 263], Wharton, § 257. Stobbe, § 34, note 32, is the most recent authority (in his second edition) for consistently applying the law of the new domicile. He thinks that the view I have adopted would lead to odd legal predicaments. I cannot concede that, and all the less so as my view is the view of the older authorities, who drew directly from practice. The judgment of the Imperial Court of 1st October 1884, as it is reported by Bolze (Praxis, i. No. 45, p. 10), seems to pronounce universally in favour of the law of the new domicile. But the question discussed in this case was the right of the children to a preference in the father's bankruptcy. They were, besides, allowed this preference in accordance with the law of the new domicile as regarded that part of the children's estate which the father had in his hands at the time the new domicile was acquired. We can concur in this result on other grounds. The law of the new domicile will guarantee this preference to the children over all property under the father's administration, either on the ground of the law of the new domicile or on that of the previous § 202] father's rights in children's property. 449 2nd. It is certain that, if the personal law allows it, the father can renounce a right of usufruct which the lex rei sitce bestows upon him, and under similar conditions the son may acquire a foreign estate in such manner as to exclude 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 sitce can, as a rule, therefore be applied only to estate which the son has inherited. '3rd. It is conceivable that the child should be subject to a personal law other than that of the father. This will, for instance, very likely be the case if, as in the law of France, the naturalisation of a father is not extended to his minor children who are still under his potestas. In this case, is it the personal law of the father or that of the child which is to rule ? Laurent (vi. § 21) pronounces in favour of the former,^ principally because the legal usufruct of the father exists in his own interest. But it is not clear how a foreign law should possibly be the foundation, as a personal law, of rights over the property of a person who is in no sense subject to it. It is sounder to hold that family rights can extend no further than the law of the dependent member of the family permits them to do. Thus, in my opinion, the father can never claim higher rights than are conferred upon him by the personal law of the child. The only possible doubt is whether the father can enjoy higher rights than those which are conferred on him by his own law. As, however, the right of usufruct is closely connected with the law of administration, and as this latter right, in respect it is part of the law of curatory, must be settled by the personal law of the ward, the father's right of usufruct must also be exclusively " 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 in such cases on account of the possibility of dolus on the part of the father. See Merlin as cited, No. 2. ' To the same effect is the judgment of the French Court of Cassation, of 14th March 1877 (J. v. p. 167), cited by Laurent. 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, raiione potestatis patemoe, 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 Gambler v. Gambler, 1835, 7 Sim, 263, where a father claimed the liferent of his children's property. The judgment in this 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 lea rei sitce.] 2f 450 BAR^S INTERNATIONAL LAW. [§ 203 regulated by the personal law of the child.* German authors have not "iven any definite utterance on these questions, because to them the law of the domicile is the personal statute, and the child's domicile follows that of the father. It is obvious that similar principles must govern our decision in any questions that may be raised as to the mother's rights in the property of her children. 4. Obligation to Maintain and Dower. § 203. The obligation to maintain and dower which arises from kinship is to be determined by the personal law of the person against whom the claim is made. Effects of the family tie which are repudiated by the personal law of the person who is said to be liable to the obligation can, at the most, only arise through some act of his which may be inter- preted as a subjection of himself to another territorial law, e.g. residence or marriage in a foreign country. Can it be that a foreign law should provide that A, who belongs to State X, and who has never set foot in the country of Y, should still be bound by Y's law to aliment a relation who lives there, although the law of X releases him from any duty of the kind? It looks as if there could hardly be any hesitation in answering this question in the negative.^ But yet the law of Prance ^ has more than once applied the personal law of the claimant, or at least the rules of French jurisprudence, against one who belonged to a foreign country, because the obligation of aliment is a part of ordre puhlic. With this last argument we can, as we well know, prove a great deal. But in a case of this kind, the courts of the United States refused, and in our opinion rightly refused, to apply a French judgment. So long only as the person "against whom the claim is made resides in the country, can the duty of aliment as part of the ordre public affect him. No exception, again, to the principle we have adopted can be allowed even in the case in which both parties once had the same personal law, the law, that is, of the person who now makes the claim ; while the other party, by naturalisation in another country, has placed himself under a system of law which denies the obliga- 8 So, too, Vesque v. Piittlinge-n, § 69 ad Jin. and § 68 ; and Weiss, p. 750, in favour of the personal law of the child. ' To this effect the German Imperial Court, 4th Jan. 1887 and 25th April 1887 (Bolze, Praxis, iv. § 15, p. 5). A brother who is in need of assistance cannot raise against his sister who lives in Dresden a claim for aliment, which is well founded according to the Prussian statute, but not according to i;he Code of Saxony. In the same way a Prussian Charity Union (ArTnenverband) cannot raise an action against a brother of a person they have supported, the brother being resident in the territory of the common law of Rome. 2 Of. the judgments reported in J. i. p. 45 [where a son-in-law claimed aliment from his dead wife's parents, he being French, they American] and J. iv. p. 428. Laurent, v. § 87, proposes to apply strictly to claims for aliment the law of the judge, if it recognises the obligation ; for, says he, you have here a law of nature to deal with. He recommends, besides, that international treaties should be entered into. That is altogether capricious. NOTE 0] CLAIMS OF ALIMENT. 45 ! tion.s For the right we are dealing with here is not an independent vested right acquired by any special act of the will, but with an obligation which flows directly from some other legal relation by virtue of a general rule of law. Again, in a case of a change from the sphere of one law to another within the same empire, the new law must certainly be applied. NOTE ON § 203. CLAIM OF CHILDREN FOR ALIMENT. [Claims for aliment will be viewed favourably by all courts, and will be enforced against parties not otherwise subject to their jurisdiction. This is a consequence of the claim being due ex debito naturali, and pre- sumably 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, 18.76, Trib. Civ. de la Seine, J. iii. p. 184). 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 consecrated by public law, and it touches public decency that it should be implemented" (Frings v. Mathyssens, 1879, Trib. Civ. de la Seine, J. vi. p. 489). French children have been held liable by the French courts to aliment their father, who had become naturalised in America, where no such obligation exists, on the ground that the paternal relation, on which the obligation was founded, took its origin before his American naturalisa- tion (Trib. Civ. de la Seine, 1877, J. iv. p. 428). This would seem to be the general rule, although it was laid down by an Algerine court that the question of the obligation to aliment children, and the extent of that obligation, are to be determined by the law of the marriage (Broni Yso, 1882, J. ix. p. 626). 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, 1840, Ct. of Sess. Eeps. 2nd ser. p. 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, 1880, Cour 2 To a different effect the Trib. Civ. Seine, 22nd May 1877, J. iv. p. 428. [But in this case the father, who claimed aliment, had settled in the United States, where no such claim lies. It was the children who remained in France.] See, too, Folleville,' Natur. pp. 505, 506. Clunet does not approve the reasoning of the decision of the Trib. Civ. Seine, but proceeds rather on the notion of ordre public. 452 bar's international law. {note de Paris, J. vii. p. 300). 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 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, 1878, J. v. p. 495). As to interim awards of aliment, while actions for divorce are pending, the courts of aU countries will give temporary remedies to injured spouses, even where they have no jurisdiction to affect their conjugal relation permanently; residence of the 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 will authorise a wife to quit her husband's house in cases where they are not competent to pro- nounce any decree that will affect the relations of the spouses permanently (Nellinger v. Struve, App. Court of Milan, 1876, J. iii. 220). The French courts will award aliment 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, 1877, J. V. p. 45) ; 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 is 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 French courts although no judicial steps have been taken there (Stern v. Stern, Trib. Civ. de la Seine, 1881, J. viii. 526). A French court may also put property under judicial management pending a divorce suit in a foreign court to which the French court is incompetent (Grabisheid, Cour de Cass. 19th April 1878, J. v. p. 506 ; Eeber v. Eeber, 1885, J. xii. 185), 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, 1881, Trib. Civ. de la Seine, J, vii. p. 303 ; Favre, 1881, J. ix. p. 627) ; interim aliment for children who have been awarded to the custody of the wife has also been allowed (Glover v. Glover, Trib. Civ. de la Seine, 21st January 1880). 204] ALIMENT OF BASTARDS. 453 Obligation of a Father to Aliment Bastakds. § 204. It is plain that the legal relations between the mother and her bastard children must be determined by the personal law of the mother. But both in practice and in the literature of the subject we are confronted with the most various views on the question as to what territorial law is to adjudicate upon the claims of the bastard against the true or possible father, and in particular upon his action for aliment, or reconnaissaTice forcde, as the jurisprudence of France calls it. The personal law of the mother at the date of conception, and at the date of birth, the law of the place of the copula, the personal law of the father, the lex fcn^i, all have their advocates : while many think that the claim cannot be recognised except several of these systems concur in approving of it. One theory, which formerly was widely entertained in Germany, holds the claim to be one arising from a delict, viz. that of illicit intercourse. Now, it is no doubt quite correct to regard as a claim on delict* the claim which the law sometimes, and in particular where the modern common law of Eome prevails, allows of damages by the mother for defloration, provided always that there has been seduction. But it is impossible to recognise that the act which has given birth to the child is any violation of its rights, so as to give it an action founded on delict.^ The decisive point of time is rather to be determined as follows : The law, which finds the paramour liable in aliment, has the intention of exercising a permanent care for the welfare of the bastard and the mother. It will, therefore, so far as may be, apply to all bastards belonging to its ov confuse the legal process of acquiring a real right directly with a legal act, which invokes the acquisition as one of its subsequent effects, e.g. the retirement of one of the partners of a trading firm, in whose estate there are some parcels of real property, with the transference of the rights of property in these assets and its effect in questions with third parties. See, in this sense, udgment of the Court of the Empire, 6th Oct. 1886 {Entsch. xviii No. 8, p. 39). § 227] LOCUS REGIT ACTUM INAPPLICABLE. SOI give rise to its application, they betake themselves to some particular place, or reside at some particular place. But, in the law of things, questions arise also as to the effect upon indefinite or unknown third parties: they cannot be deprived by the contracting parties of the pro- tection, which is guaranteed to them by the special forms for transferring the right recognised at the place in which it is situated. Confidence in these would be completely broken up, if a residence in another country, of which third parties need know nothing, were to release the contracting parties from the necessity of observing the lex rei sitce. Even so simple a form, and one that offers so little protection as traditio of the thing, still under certain circumstances provides a measure of security against the simultaneous acquisition of it by others, or against fraudulent ante- dating of the transference, not to speak of the requirements of public instruments, or of registration in public books. That the rule " locus regit actum " is not applicable to the law of immove- able property, may be proved with considerable certainty by a reference to history. In the Middle Ages, to acquire landed estate in property or in feu was held equivalent to being received into the community 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 thus the application of the lex loci actus was necessarily excluded. Although this rule disappeared in many districts as the Eoman law advanced, yet the rule of customary law, " locus regit actum" was never applied to real rights to landed estate.^ 2 Cf. Beseler, ii. p. 78. ' This, too, is undisputed. For instance, we may name the following authors who specially reject the rule " locus regit actum " as regards the acquisition of landed property and other real rights in the soil : Argentraeus, Ifo. 3 ; P. Voet, c. i. § 9, No. 2 ; Alef, No. 44 ; Cooccji, vii. 14 ; Ziegler, Dicastice, Cond. 15, No. 12 ; BouUenois, i. pp. 601-503 ; Eeinhardt, i. 1, p. 31 ; Mittermaier, § 32 ; Burge, ii. pp. 843-871 ; Wachter, ii. p. 383 ; 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 ; Molinaeus, Consilia, 53, § 9 ; Huberus, i. tit. 3, § 15 ; J. Voet, ad Dig. i. tit. 4, p. 2, §§ 13, 15 — discuss the validity of a testament executed according to the forms of the lex loci actus to affect immoveables situated elsewhere ; and that this question must, no doubt, be answered in the affirmative as regards those territorial laws where there is an universal succession, and tlie 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 succession 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 Krog make an exception of rights of real property, and subject them to the lex rei sitce. Krug, pp. 50, 51. See, too, Laurent, vii. §§ 287, 294 ; Stobbe, § 32, note 7 ; Fbrster, Eccius, § 11, note 22 ; Duguit, Forme, p. 102 ; Asser-Rivier, § 41 (pp. 90, 91) ; Wharton, § 275 ; Weiss, p. 765. (According to modem French law, property can only be transferred inier imos by " transcription. " Judgment of the Supreme Court of Spain, 21st Jan. 1871 (Torres Campos, p. 287.) "According to the principles of private international law, the effect of contracts which directly touch real property is regulated by the real statute. " 502 bar's international law. [§ 228 In so far, however, as public instruments are necessary for the trans- ference of real rights in immoveables, these may, according to the general rule, be executed in a foreign country, and then as regards their form the rule " locus regit actum " will apply.* More modern German doctrine ^ inclines more and more decidedly to the conviction that the form of the transference of real rights, even in moveables, must be exclusively determined according to the lex rei sitce at the date of the transference. But Westlake and, with special emphasis, Wharton,® and similarly v. Martens, are also all upon this side. It seems as though the majority of the Franco-Belgico-Italian school were of the same mind.'' [The law of Scotland is to the same effect, for it was held so Idng ago as 1868 (Connal & Co. v. Loder and others, Ct. of Sess. Eeps. 3rd ser. vi. p. 1095) that the question whether the right in certain pig-iron was or was not carried by the mere indorsation of the iron warrants, must be settled by the law of Scotland, the iron being actually in Scotland, and not by the law of England, in which the indorsation took place.] The Intention of the Parties to be considered. § 228. Of course, in the case of a contract from which it is said that a real right is to arise, the intention of the parties must be directed to that end. There may be a doubt about that intention, or it may miscarry altogether, if the parties enter on the legal transaction in a country in which some special form is required for the constitution of a real right, and do not observe that form.^ * Cf. Duguit, Forrne, p. 107. It is a legislative error to provide in § 2128 of the Code Civ. that a deed dealing with a security over a piece of French real property cannot be executed in another country, Cf. Duguit ut cit. 5 Cf. Savigny, § 366 ; Guthrie, p. 178 ; Schmid, p. 60 ; Stobbe, § 32, note 15 ; Fbrster, Eccius, i. § 11, note 23. A moveable thing which happens to be in the territory of the common law of Kome, or of the Prussian AUgem. Landr., only becomes the property of a buyer when the traditio, which these systems require, has taken place, even although two Frenchmen conclude a bargain about it on French territory. See judgment of the Supreme Court at Munich, 9th May 1868 (SeufFert, xxiii. § 103) ; Sup. Imperial Court of Commerce, 5th Sept. 1873 (Entsch. xi. § 7) ; C. Brussels, 9th Aug. 1876 (Transference of property by bill of lading), Kev. viii. p. 497. Judgment of the Sup. Ct. of the Empire (v.), 6th June 1884 (Blum. Annal. ii. No. 207, p. 440), with reference to the Russo-German Consular treaty. As the judgment notices, this treaty modifies the application of the rule "locus regit actum," by giving consuls the power of officiating as persons who can execute legal instruments, but the rule " locus regit actum " is to have no application to the constitution of such rights in moveables. 8 Westlake-Holtzendoiff, § 141 ; Wharton, § 308. ' Fiore, § 205 ; Laurent, vii. §§ 213 and 221 ; Duguit, Forme, p. 104, note; Asser-Rivier, § 43, p. 99 ; Weiss, p. 765 ; Trib. de Comm. de Vannes, 27th July 1874 (J. ii. p. 236). ' Cf. Stobbe, Asser-Rivier ut cit. This is the ground of judgment in the decision of the Supreme Court of Berlin, 13th Nov. 1868 (Seuffert, xxiv. § 102), although the result is at the same time deduced by the Court from the unsound arguments of Savigny already pointed out. There is of course, no doubt that it is not necessary in other circumstances that the contract- § 228] REAL RIGHTS IN MOVEABLES. SO3 Are we not, however, to make an exception at least in the case where the thing is in transitu, and it is unknown at the moment where it is ? * This question must be answered in the negative. This is a necessary result, if we remember that a third party, e.g. by arresting the thing, may have acquired rights over it, and these rights, acquired as they were in conformity with the lex rei sitce, can never be denied effect because the other contracting parties were not aware of them. But it is not so difficult as it is supposed to be to find the solution which will be satisfactory in practice. The bargain between the two contracting parties, which to begin with constitutes a mere obligation, acquires effect as a real contract the moment the thing reaches a territory in which the form which the con- tracting parties have adopted is sufficient for the constitution of the real right. It will, therefore, as a rule be sufficient if the parties observe the law which is recognised at the place ^° to which the wares are consigned. ^^ ing parties should have any special intention as to employing permissive or dispositive rules of law in order that they should come into operation ; it is sufficient that they should by implica- tion have had such intention, or even should have had it in their minds. But, in the cases we are here concerned with, the transmission of the property according to the law of the contract is not a matter of permissive or dispositive law, while by the law of the place where the thing is, a bargain is required according to which the transference of the property is ipso facto legally complete. ' So e.g. Kivier, ut cit. " But the intention of the parties, in order that it may have effect in conformity with the law of the place to which the goods are consigned, must subsist up to the moment at which the thing reaches the territory of that country. That is substantially the foundation of au interesting judgment of Lord-Chancellor Selborne, of 7th Nov. 1873 (J. i. p. 200. Ux parte Cote, L.R. 9, Ch. App. p. 27), although the grounds of the decision are put on a different ratio. The plaintiff had posted a letter in France with bills addressed to a person domiciled in England. Before the letter had started news was brought by telegram that the person to whom the letter was addressed had failed. The rules of the French post-office allow a person sending letters to get them back before the mail is despatched, under certain formalities. Tlie writer of the letter observed these formalities, but in consequence of an oversight of the officers of the post-office, the letter was nevertheless sent off and was delivered. In England a letter cannot be got back from the post-office : the post-office authorities regard themselves as mandatories of the receiver. The bills, however, were allowed to be vindicated by the Lord Chancellor's judgment. "The intention of the parties, and the acts done by them, are more important than the omission of the precise form in which their intention ought to have been '' That is particularly important for the sale of floating cargoes. On the open sea the law of the country to which the ship belongs is, in so far as the ship and cargo are concerned, the lex rei sitce. Laurent, ii. § 223, thought that the decisions given in the text are little better than absurdities. I cannot, in this place, go more deeply into Laurent's theory, which is very confused, and has been thrown overboard by those who are responsible for the new Belgian bill. I must leave it to those who desire to inform themselves further on the matter to say where the absurdities are to be found. Dudley Field, § 573, is inexact in saying, "property in shipping is governed in respect to the title thereto, the modes of transfer . . . between living persons by the law of the nation- ality of the vessel." The decisions which he himself cites seem not to bear out that statement. A judgment of the Imperial Court (i. ) of 1st October 1887 (Bolze, Praxis, i. § 30, p. 8) is more interesting, and, in my view, is altogether apposite. The pursuer, who lived in Vienna, had sold meal to some one in Frankfurt O.M. , and had despatched it from Vienna. The Court held that the question whether the property passed to the defender when the goods were handed in to the carrier's office at Vienna must be determined by the law of Austria. If 504 bar's international law. [§ 228 But the contract, in so far as its real operation is concerned, will be checked, in so far as a third person has already acquired a real right which comes into conflict with it, that real right being acquired in accordance with the lexc rei sitce. "We cannot, therefore, think it necessary to set up any special legal rules for things which are said to be subject to a constant change of place in their nature: any such rules would simply give rise to confusion.^^ We must, besides, remember that a contract which had for its object the constitution of a real right, but failed to efif'ect that object because the forms of the lex rei sites were not observed, may very often constitute a binding covenant to grant the real right that is in question.^^ This obligatory contract would have to be upheld in accordance with the rule "locics regit actum," ^* and would give a right of action to compel the constitu- it were found that the property had passed, but on condition always that the goods should not te rejected as diseonform to contract — to the effect of rescinding the transmission of the right of property, as if it had never taken place, the moment that I'ejection was legally made, or was accepted by the seller as so effected — the question whether the rejection had been validly effected in Frankfurt was a question for the law of Frankfurt. ^^ From what has been said, it follows, too, that a hypothecation or arrestment executed on the demand of a foreign judge cannot give any higher rights than belong to it by the lex rei ■ sitoB. It cannot give the rights which would be created according to the law of the judge who makes the demand. The law of the judge is to some extent in the same position as the con- tract executed in another country (cf. decision of the German Imperial Court (iii. ) of 20th Oct. 1882, Entsch. viii. § 28, p. 113). [See, too, judgment of the Scots Court in Donaldson ■». Oi'd (5th July 1855, Ct. of Sess. Reps. 2nd ser. xvii. 1053), in which it was held that, when funds had been arrested in Scotland, any other diligence professing to compete with that arrestment must satisfy the conditions required by the lex rei sitce, the law of Scotland. "In what way," says the Lord Justice Clerk (p. 1096), "can funds in Scotland be attached except under the law of Scotland ? " But see below note on § 275.] ^' The points for consideration are — (1) Whether the parties intended, at least in the long run, to enter into a binding contract ; (2) whether they have observed the form which is recognised at the place whore the transaction was entered into, or some form that will settle the question of intention. Thefonner mustbe ascertainedon aconsiderationofthe circumstances of the particular case, and is not at once to be assumed, especially in the case of contracts which are without consideration. Burge, i. p. 24, ii. p. 865 ; Story, § 436 ; P. Voet, de stat. c. 1, § 9, No. 2 ; Burgundus, i. 15, 16, 37; Rodenburg, ii. c. 5, § 9 ; Wachter, ii. p. 383, note 181. By the Hannoverian Ordinance of 18th December 1843, § 3, itis required in several provinces that contracts, by which it is intended to secure, divide, transfer, or discharge full or limited rights of property, or rights of succession over real property, should, to be formally valid, be executed in the form of public documents. In my opinion a contract concluded abroad without complying with that formality does not transfer the real right. On the other hand, we are not to apply the provision of § 6, which requires, for the constitution of a binding obligation for the transference of any of the real rights mentioned, a private docu- ment signed by both parties, to contracts of this kind concluded abroad, if we have plain evidence that the mind of the parties is directed to the constitution of a binding contract. See judgment of the Appeal Ct. of Geldern, 6th May 1856 (Hingst, Rev xiii p. 410). " This distinction is frequently too little regarded. In the judgment of the Ct. of App. at Liibeck, of 30th December 1839, reported by Seuffert, viii. § 2, it is rejected on the ground that an obligatory contract itself "virtually" contains the transaction by which the property is changed. In this sense contracting of debts, or any other obligations, would "virtually" contain a change of the right of property. § 229] CHARACTER OF THING: MOVEABLE OR IMMOVEABLE. S05 tion of the real right.^^ [This is the doctrine of the law of Scotland. See Erskine, iii. 2. 40.] D. WHAT LAW DETERMINES THE CHAEACTER OF A THING, WHETHER IT IS MOVEABLE OR IMMOVEABLE? § 229. The distinction of moveable and immoveable things is more important for the law of each particular State, than for private inter- national law. Sometimes, however, as these territorial laws draw different boundary lines between moveables and immoveables, it is important to consider which territorial law decides the question whether a thing, or a right, as the case may be, is to be viewed as immoveable or moveable. That question is to be determined on the following considerations. The assertion that a particular thing, or a particular right, is to be treated as moveable or immoveable, is simply a shorthand form of asserting that a number of legal propositions should be applied to the one or the other, i.e. fill the propositions which are applicable to other moveables, or to other immoveables, as the case may be. The question, then, finds an answer so soon as we know what territorial law it is that is to rule the thing or the right, even although there shall be in that law no special provision as to their quality — whether they are moveables or immoveables. The result is, then, that as regards things which have a material existence, in so far as the question is one as to rights that are directly real, the actual place where they are will decide ; ^ but as regards other rights, the territorial law which rules these rights in other respects will rule this question also.2 We must not forget that the division into moveables and immoveables is frequently of importance merely for certain legal categories. 1' Yet even here the rule " locus regit actum, " may be shut out by special provision. If the ohligatoiy contract in question can only be validly executed before the competent judge, then the form of the obligatory contract must be determined by the lex rei sitae. The Prussian Allgem. Landr. i. 5, § 115, however, contains this general provision: "In all cases where immoveable things, or the property, possession, or enjoyment of these, is the subject of a contract, the forms required by the law of the place where the thing is must be observed." The lex rei sitce controls even the material provisions of obligatory contracts of this kind as to land and houses, and may therefore exclude the rule " locus regit actum." Of. Stobbe, § 32, note 7, and Roth, Bayer. Privatr. § 17, note 81. That is not, however, to be assumed, even although the object of the prescribed form shall be " to do away with abuses that have occurred in connection with alienations of property." At least I cannot concur in the ratio of the judgment of the Supreme Ct. at Mannheim, of 1st February 1866, reported in Seuffert, xxiv. No. 204. (The rule " locus regit actum " was in that case, as it has been more recently by Laurent, restricted to the form of the public instrument and not extended, as it should be, to the question whether any such instrument was necessary.) 1 The place which rules is always the last place in which the thing was, or, more exactly, the place where it was when the event happened that raises the question. The bee hive, which a Dutchman takes to his estate in France, becomes therefore, according to the Code Civ. § .524, ImmeuUe per destination, although by Dutch law it was not so. Asser-Rivier, § 45 ; Weiss, p. 764. 2 According to Boullenois, i. pp. 358, 360-364, the lex domicilii of the deceased rules in this question, in so far as the right of succession is concerned. Bouhier, cap. 29, § 41, takes 506 BAk'S INTERNATIONAL LAW. [§ 229 and its operation as confined to these categories, e.g. the law of the property of married persons, or the law of succession to a certain extent.^ In these cases we have to deal with a proposition of matrimonial or of succession law, expressed in short form, and thus the system that regulates generally the law of marriage, or the law of succession, will give the rule.* In this way we explain the divergent views of authors on the subject. For instance, if this question arises as to the acquisition of a right to rents by way of succession, then, if there is, according to the provisions of the legal systems in question, an universal succession, the personal law of the person in right thereof, whose succession is in question, prevails ; as the lex rei sitce does, in case succession to immoveables is held to be a singular succession by the laws recognised at the domicile of the ancestor, or by that which rules at the place where the thing is. If, on the other hand, the question is as to the effect of a.n assignation as against the debtor in a bond, then the personal law of the debtor will rule, in cases in which the assignation is, with a view to his protection, made to depend upon the observance of the forms that the domicile of the spouses as regulative of all matters connected with the communio boTwruni, of married persons, in so far as the rights of third persons are not touched. Christianaeus (vol. i. deois. 252, § 7) takes the lex domicilii creditoris as his fundamental principle, if the legal relation in question concerns "favorem et utilitatem ipsius creditoris vel eorum qui ex ejuscapite causamet successionem asserunt." General answers are attempted by Rodenburg, 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 Fcelix, i. p. 137, § 64) ; Beseler, i. p. 154 ; Eenaud, i. § 42, p. 106 ; Roth. Bayer. Privatr. § 17, note 72 ; Asser-Rivier, § 45 ; Weiss, p. 764. These writers propose to regard the lex rei sitae only. Fcelix involves himself in a contradiction ; in § 64 the lex domicilii is to decide universally, in § 61 the lex rei sitce. ^ So express enactment of the Frankfurter Reformation, ii. 3, §§ 1, 2 ; on similar cases in the law of England, see Westlake, §§ 157, 158 ; Wharton, § 287 ad fin. * E.g. if by the law of matrimonial property prevailing at the domicile of the spouses, immoveables are excepted from the communio boriorum, while (Jaims secured on dispositions ol real property, rents, etc., count among immoveables. [In questions of taxation the actual situs will rule. C. de Cass. 1887, J. xvi. 827.] [In the case of Monteith v. Monteith's Trs. 1882 (Ct. of Sess. Reps. 4th ser. ix. 982), it was held that, in a question of succession to a deceased Scotsman, whose personal estate was subject to a claim of legitim at the instance of his children, sums secured over English land by mortgage, which are, by the law of England, personal property, must have their character iixed by that English law, were therefore moveable, and so subject to the children's claim. This determination was arrived at on the authority of Newlands v. Chalmers Trs. 1832 (Ct. of Sess. Reps. 1st ser. xi. p. 65), and Downie u. Downie's Trs. 1866 (Ct. of Sess. Reps. 3rd ser. iv. p. 1067). In the latter case, Lord President Inglis says : "The principle has been recognised and settled that the character of a subject as heritable or moveable depends on the law of the country where it is placed." This character of moveable property was therefore held to attacli to money so secured, and it was held to come into the Scots succession with that character impressed on it, the specialty as to the form of the investment being altogether thrown out of account. Lord Young, however, in Monteith's case, dissented, on the ground that this succession, being succession to a Scotsman, must be ruled by the law of Scotland, that by that law children have no such claim over money secured upon land, money so secured being, for this purpose, by the law of Scotland distinguished from other moveable property. This latter view seems more in accordance with the doctrine in the text ; his lordship's reasoning may be thus summarised : The question of the quality of the asset must be determined by the law which, in other respects, governs the succession ; all moveable succession is regulated by the law of domicile of the deceased (or, as the author would say, moveables are massed together to form an universal succession) ; this succession is moveable whether you look to Scots or to § 230] CAPACITY TO ACQUIRE RIGHTS IN THINGS. 507 regulate the conveyance of real rights in immoveables." By the bank- ruptcy statute of the German Empire, § 39, subsec. 2, the character, e.g. of a thing or a right as immoveable, will depend on vchether the law of the place, in which the thing happens to be, provides as a step legal execution against these things and these rights, the right of public sale, which is appli- cable to other moveable property, and has nothing to do with the consider- ation whether these things are counted as immoveable in any other relation.* E. PERSONAL CAPACITY TO ACQUIRE RIGHTS IN THINGS. § 230. The personal capacity to acquire particular things, or rights in them, a question which in practice only comes up for consideration in connection with real property, is to be determined, not by the personal law of the individual concerned, but by the lex rei sitce} On this point a general consensus of opinion prevails. After, what we have said in regard to legal capacity generally, this proposition requires no further investigation. Those, however, who take no distinction between capacity to have rights, and capacity to act, can only justify it by having recourse to "ordre public," to what they term the coercitive, politico-economical, or moral character of the rules of law that deal with the capacity to acquire and to possess.^ But, if we go strictly to work, we shall, by following this abomination, as we may call it, of politico-economy or morality, and applying, not the lex rei sitce, but the lex fori, a result which is obviously a mistake.^ f. particular legal relations. 1. Possession. § 231. That the possession of a thing, and the possession of a right in a thing, must be determined by the lex rei sitce, scarcely admits of doubt, English law ; therefore it is ruled by the Scots law of succession, and that law says that children shall have no such claims over money so secured, moveable though it be. Its character of moveable succession brings it within the scope of Scots law, but, once in the grasp of that law, it will be given out to the successors whom Soots law calls to it. As regards the matrimonial law, it was settled by the cases of Chalmers and Downie already quoted, that while you will determine the respective rights of the spouses in property falling to them by the law of their domicile, you will go to the lex rei ntoe to ascertain what the character of the property is. E.g. you wUl enquire whether bonds bearing interest, left by a testator who died domiciled in Jamaica, are by that law, i.e. the law of England, heritable or moveable, and if they are moveable, they will, by the law of Scotland, fall into the communio bonorum of spouses domiciled in Scotland, to one of whom they have come by succession. In the case of Egerton v. Forbes, 27th Nov. 1812, F. C. the Court of Session held that the question whether certain moveable funds, investments in English stocks, to which no title had been made up, vested or did not vest in a child of the owner by mere survivance, must be deter- mined by the lex rei sitce, i.e. the law of England. But once vested in that child by that law, they would pass jv/re mariti to the child's husband, a domiciled Scot, agreeably to the law of Scotland, although the law of Scotland would have held that they had not vested.] 5 To the same effect Stohbe, § 32, notes 2, 3. On the other hand. Roth, D. Primtr. § 51, note 58, and Asser-Rivier, § 45, make the rule of the lex rei sitce too absolute. ^ See particularly v. Vblderndorff, Die Concursordn. filr das Deutsche, E. 2nd ed. § 39, note 8. 1 Story, § 430 ; Foelix, i. § 58, p. 105 ; Schaifner, p. 68 ; Savigny, § 367 ; Guthrie, p. 183. 2 Savigny ut cit. ^ According to what we have said, the lex rei sitce, and it alone, will decide as to the capacity of juristic persons, e.g. religious foundations (the dead hand) to acquire property : the So8 bar's international law. [§ 231 even when the thing in question is moveable.^ The foundation of possession is the physical control of the thing, and that can only be exercised where the thing is.^ It would lead to insoluble contradictions, if in private inter- national law possession and property were to be dealt with on different principles. The following remarks are all that need be made : — \st, As Savigny suggests, the questions as to whether recompense is due, and if so, what recompense and what penalties can be enforced by private persons for illegal encroachment upon their possession, are to be determined by that law which is applicable to relations of obligation arising from delict or quasi delict. Ind, A legal proposition or rule which deals with the rights that arise from permanent possession cannot, as we liave already said, be applied to things which are only found temporarily in the territory of a State. In my former edition I applied this rule not merely to prescription, but to the rights that a possessor might have to the produce of a thing, and to liis rights in respect of expenditure upon it. It seems more correct, however, to allow these latter questions to be determined by the law of the place in which the thing actually was when the possession began.? One practical advantage of this course is that any other rule would necessitate enquiries and calculations, which, would be always difficult, and sometimes impossible to carry out. But it is also sound on principle, because the circumstances under which any man has acquired, t.g. bought, will give his whole conduct its characteristic complexion It may reason- ably be expected that an honest man will not buy, if he thinks that the seller is not entitled to sell. But it would be unreasonable to ask a man who has honestly acquired anything, and who subsequently becomes aware of circumstances which create a doubt as to the legality of his possession, to offer the thing of his own accord, to avoid the disadvantages of dishonest possession, to the person who is entitled to it, or to seek out this person at great trouble and expense. In the same way, then, the law under which a man has acquired possession, must determine the character of that possession, unless, as the local situation of the thing is changed, new facts come into play, which, by the local law of the place in which the thing is same holds with regard to the capacity of foreigners to do so. Judgment of the Sup. Ct. of App. at Cassel, 3rd September 1836 (Heusser Annalen, ii. p. 752): "The laws of Prussia (the law of the person's home) cannot give the rule, if the capacity to acquire property in Hesse is limited to certain classes of persons." 1 The right of the possessor is simply a transitory right in the thing, or, in other words, the right of actual de, facto connection with it. Both doctrines, that of possession and that of right in the thing, are much involved one with the other, and, more closely considered, the one cannot be thought of without the other, as we may see from the ordinary definitions of the two terms. The definition of property as legal dominion or mastery is only intelligible by means of the correlative idea which must form itself alongside the former, viz. actual de. facto dominion or mastery, and so, conversely, the definition of possession as actual dominion is only thinkable by the help of the contract with the notion of legal dominion. 2 Savigny, § 368 ; Guthrie, p. 193 ; Burge, iii. p. 126 ; Unger, i. p. 175. 3 So Eccius, in Eccius-Forster, Freuss. Fri-oatr. i. § 11, note 22; Stobbe, §32 ad fm. " because the provisions of law that are recognised at the place where the thing is acquired, necessarily qualify the right of the person who acquires in good faith." § 232] LAW OF THINGS: PROPERTY. 509 found after its change of situation, effect some change {e.g. unless this latter law gives some special effects to the fact of the institution of an action). Of course, in so far as the lex fori imposes certain prestations upon the possessor as consequences of the institution of the action, the pur- suer can require no more under this head than what that lex fori awards him.* Zrd, Special restrictions often arise as regards the competency of posses- sory actions. The French " Code de procedure civile " contains, for instance, this provision (art. 23) : " Les actions possessoires ne sont recevaUcs, qu'autant qu'elles auront eU formies dans Vannie die trouble par cetix qui, depuis nne anvAe au moins, Maient en possession paisible par eux ou les leurs, k litre non -prieaire." We must separate the enactment merely referring to procedure from that material enactment which touclies 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 possession has lasted for a year, cannot he vindicated by action. This applies 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 are to be avoided — a provision that 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 judgment in France specially bears that the pursuer had no possession at all. 2. Property. § 232. The capacity of a person to have property is, as we see, to be determined by the lex rei sitae, as being a part of his general capacity to have rights. On the other hand, the capacity to dispose of the property, in so far as the question is a question of the protection of the person concerned, is subject even in the case of real property to the personal law, as being a question of capacity to act. The divergent view of this point ^ taken by the law of England and of the United States, which apply in such matters the lex rei sitce, cannot be justified in argument. It makes a confusion inter alia between the capacity to dispose of property inter vivos and mortis causa.^ The application of the lex rei sitce in the latter case can be defended on the principles of the law of England and of the United States, but it cannot be defended in the former case. § 233. In like manner the lex rei sitce'' must determine questions as to the capacity of a thing to become the subject of private ownership;^ and ■* Stobbe ut cit. 5 Story, § 431 ; Wharton, § 296. In England, however, this mistaken theory seems to be: somewhat shaken. Cf. Westlake Holtzendorfl', cap iii. § 2, p. 51. ' See the law of succession on this subject. ' See Stobbe, § 32, p. 1 , on the circumstances in which this rule is applicable. » Fiore, § 201, c. 1 ; Weiss, p. 764. 510 BAliS INTERNATIONAL LAW. [§ 233 also whether that which has no owner becomes the property of him " qui occupat ;" that which is newly constructed the property of him who constructed it ; or that which is found the property of the finder.^ i" It also rules the question as to whether the thing can be alienated (except in so far as the prohibition of alienation is confined to particular persons), and questions as to reductions of sales by certain privileged persons. The will of the parties may in some measure be considered as giving the rule for determining the question whether one thing is to be regarded as the pertinent of another or not : to this extent the law which determines questions as to the intention of parties, e.g. that local law under which the bargain affecting the thing falls, has to be applied. Apart from this, how- ever, no law but the law of the place in which the thing claimed as a pertinent actually is, can decide : this must hold in the case of moveables as well as in the case of real property. The essence of the notion of a thing as a pertinent is simply the application of a rule of law that it to a certain extent must follow the legal fate of the principal thing. This rule is a real rule, in so far as third persons are affected by it, and therefore, in so far as it does not yield to the will of the parties, it is necessarily dependent on the lex rei sitce.'^'^ Confiscation, too, which has taken place in conformity with 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 s Savigny, § 367 ; Guthrie, p. 183; so, too, the question whether a treasure-trove becomes the property of the finder or of the public treasury. i» The Prussian Allgemeities Land Recht, i. 9, §§ 299-303, 315-323, 304-306, makes consider- able deviations from the doctrine of the Roman law as to the requisites for acquiring property by specification (Koch, Prmssisches Privatr. i. § 251). It cannot be doubted that if a thing is sold in a place by the laws of which it becomes, under the existing circumstances, the property of the buyer, irrespective of whether the seller was owner or not— for instance if it is aold in the open market, or iii an open shop — this acquisition 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.C. Moncrieff and Lord Craighill in Todd v. Armour, 1882, Ct. of Sess. Reps. 4th ser. ix. p. 901.] The question, too, whether by the union of a moveable thing with real estate property in the first is lost or become irrecoverable (of. e.g. Code Civ. 554), must be deter- mined by the lex rei sUm. Cf. Laurent, vii. § 259; Durand, § 196, p. 407; and Weiss, p. 769- starting from the view that the only question here is as to the private interests of different pro- prietors, and that " Ordre public" is not concerned, arrive at untenable results, which imperil all legal intercourse. From the point of view of a quasi contract I reach again the lex rei sitce. " See judgment of the Supreme Court of Bavaria, of 11th November 1882 (Seuffert § 161). The court, proceeding on the law of Bavaria, refused to give effect to the doctrine of Austrian law by which railway waggons arrested in Bavaria were parts and pertinents of Austrian property. The Supreme Court of Wolfenbiittel, 17th September 1833 (Seuffert, xxi. § 3), laid down that the pertinents of a farm in Brunswick which had been seized in Prussia were subject to the constitutional laws of Brunswick in so far as services to the sovereign were concerned. The very short report in Seuffert leaves it doubtful, however, whether this judgment is not to be justified on other grounds. 12 The public treasury may vindicate in a foreign country goods which were imported con- trary 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 confisca- tion pronounced by another State. Cf. infra, § 146. § 233] LAW OF THINGS: PROPERTY. 51I pay State duties. Everything 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 alienation 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 county. In accordance, however, with the rule already laid down as to the decisive weight to be given to the law of the last place where the thing was, the question whether a moveable thing can or can not be alienated, must always be answered by the law of the place in which it last was." In the same way the lex rei sitce will rule the law of compulsory acquisition of property for public purposes, and will prescribe the statutory limits of ownership : e.g. the limits of that right as regards the erection of manufactories, or those that are necessitated by the requirements of mining statutes, or involved in a statutory prohibition of subdivision. In like manner limitation of the right of property in the interest of neighbours, of adjoining properties, and of upper or inferior heritors, are all dependent on the lex rei sitce.^^ It is plain that rules of that kind have no bearing upon things that lie beyond the territory, and that they would completely miss their mark, if any privileges in connection with them were to be given to foreigners who happened to own property in this country. '^ So Bartolus in L. 1, C. de S. Trin. No. 51 ; Chassenseus Cmnment. m Consuet. Burgund. Ruhr. ii. tit. des Confiscations, No. 11; Mevius, proleg. qu. 6, § 14; Petr. Peokius, de Testament. iv. c. 8, § 8 ; Bouhier, chap. 34, No. 28 ; Ricci, p. 553 ; Casarejis, disc. 43, No. 17 ; Danz, i. § 58, p. 179. Wharton, § 383. This rule has a special application in the case of maritime war. The condemnation of a ship by a prize court transfers the property, in so far as the ship at the date of the condemnation was in the power of the State to which the court belonged. Of course, the decision must not offend openly the principles of international law. See reports of the decisions of English courts on this point in Piggott, pp. 252-264. Although the older writers make an exception in the case of confiscation imposed in terms of the jus commune, this is explained by the idea which prevailed in the Middle Ages, and frequently comes into notice in later times, that the Roman law was de jure good all 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. " It was thus lately determined in a very interesting case by the Trib. Civ. Seine, of 17th April 1885, that a vase which belonged to a Spanish Church, and which by the law of Spain was inalienable, had become alienable in France (J. xiii. p. 593). To the same effect Weiss, p. 768, note 2. Of course, the personal responsibility of the person who alienates the property illegally is not affected. ^' In these cases the locality of that piece of real property, against which an appeal is made to the limitation, must decide. The limitation cannot, however, be invoked in favour of any estate, by whose own territorial law a similar prohibition would not be recognised, since limitations of that kind rest on considerations of mutual convenience and comfort. See judgment of the Sup. Ct. of App. at Kiel, of 4th Sept. 1849 (Seuffert, vii. § 2), the grounds of which go still further : "An estate which is not governed by the law of LUbeck can no more have duties cast on it by that law than it can have rights conferred on it." 512 bar's international law. [§ 234 § 234. The Ux rei sitce will exclusively govern the form of the transference of property, as we have already shown. Some other law may very well have to be taken into account to determine the import or meaning of the contract of transference, although that will not very frequently be so. But statutory provisions which limit freedom of contract, in the interest of the security of third parties, are to be recognised in accordance with the lea: rei sitce. An instance is the provision that rights of redemption or re-purchase shall not be capable of enforcement, so as to affect third parties, beyond a specified period (cf Code Civil, § 1660).^® 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 there- after rendered invalid by the removal of the thing to another place According 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. The acquisition of property by prescriptive possession is plainly connected closely with the prescription of actions for the vindication of property ; the latter, so far as moveables are concerned, cannot properly be discussed in this connection just at present. The prescription of move- ables can only be determined by the lex rei sitce ; ^^ this is the universal opinion of the jurists,^® and must 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 ordinary 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 sitce they would be of full age.^* Actions relating to Property. § 235. Questions as to actions relating to property present more difficulties, and a very careful investigation is of importance on this head. IS Laurent, viii. § 157. Esperson, J. ix. p. 278 (witli reference to the Codioe Ital § 1515). " The view that foreigners cannot acquire by prescription is now generally abandoned even in France. Cf. the citations in Fiore, § 202, note 2. 18 Molinaeus in L. 1, C. de S. Trin. ; J. Voet, Comment, in Dig. 43, 44, § 12 ; Bouhier, chap. 35, Nos. 3, 4 ; BouUenois, i. p. 364 ; Merlin, Rep. Prescription, sect. 1, § 3, No. 7 '; Pothier, de la Prescription, Nos. 247, 248 ; Hans, pp. 33, 34 ; Giinther, p. 737 ; Muhlenbruch,' i. § 73; Masse, pp. 102, 103 ; Gand, Nos. 731-733; Burge, iii. p. 221; Wheaton, § 86, p. 118- AVachter, ii. p. 386 ; Oppeuheim, p. 398 ; Schaffner, p. 75 ; Foelix, i. § 63 ad fin., and Deman- gcat's note ; Stobbe, § 32, 1 ; Laurent, viii. § 332 ; Fiore, § 202 ; Weiss, p. 767. 19 Cf. the, -remarks with reference to restitution (§ 154). Gand, Nos. 731-733, is of a different opinion. § 235] JVOT/OJVS RRLATING TO REAL PROPERTY. 513 both because there is so much difference among the different systems of law as to the duties and obligations of the possessor as against an owner vindicating his property, and because special restrictions with regard to moveables have often been introduced in the interest of commercial 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 right or 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 consequence is that, as the right itself is subject to the lex rei sitce, 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 moveables and immoveables is nowhere seen so clearly in operation as in the Bei Vindicatio and actions of the same kind. In the meanwhile, we shall first consider the simpler case of immoveables. The lex rei sitce is the rule not merely as to the essentials of an action claiming property, or any action on the same model founded upon some particular kind of possession (e.g. the Actio Puhliciana of Eoman law), but also determines the obligation 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 sitce, 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 bound to make reparation, the result is that the pursuer can have no claim to it.^^ According to the view which takes the lex fori as regulative, the pursuer will have a dangerous option in his hands, assuming that a real action can be brought in the forum, rei sitce and in the forum, domicilii of the possessor as well. An action for damages, or for the value of the article vindicated, against a person who, to prevent the success of a claim made against another, maliciously, and in spite of having no right of possession in the thing, throws himself into the action {liti se ohtulit), is a pure question of a tine for a matter of procedure arising quasi ex delicto, and consequently to 2» § 361, pp. 146, 147, of Guthrie. 21 Sarigny is of the opposite opinion, § 367 ; Guthrie, pp. 186, 187. See, on the other hand, Burge, iii. p. 126 ; Holzschuher, i. p. 66 ; and the essay in Seuffert and Gliiok's Blatter fur Jiechtaanwendung, vol. xiv. p. 187, there cited. 2k 514 BAI^S INTERNATIONAL LAW. [§ 236 be determined by the lex fori. But it is different with the obligation of him qui dolo dedit possidere, in so far as his possession was given up before litis-con testa tion.^^ We find confirmation of the latter statement in the fact that, by the general theory of the Middle Ages, the forum rei sitw constituted an exclusive jurisdiction, and in more modern systems has been retained, especially in State treaties for insuring mutual legal remedies.^* If, therefore, an action shall be raised in some other court than that where the thing is situated (which is quite exceptional), all the less can we assume that the law recognised at the seat of that court are to have any effect upon the material relations of the possessor who is sued.^ Limitations on the Vindication of Moveables in paeticulak. § 286. 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.^ This circumstance is recognised in the interpretation of the law 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. Laws of this kind, which limit the right of vindication, mean to say something like this, viz, : " We shall protect the defender, in so far as the institution of the ^ L. 25-27, D. de Rei Fin. 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 property that is not within their jurisdiction. Wheaton, § 86, p. 118 ; Story, §§ 551, 652.) Code de Proced. Civ. art. 59. German treaties collected by Krug, pp. 40, 41. Civ. Proc. Ordn. for the German Empire, § 25, is to the same effect. " It is the natural result of this reasoning that the lex rei sUae 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 and 582 — although they would determine prescription for the purposes of acquisition by the lex rei sitae, would have the lex fori rule the case of negative prescription. Yet, since by English law actiones in rem, which have to do with immoveables, can only be brought in foro rei sitae, this view in its result coincides with that taken by us, in so far as English and American tribunals are concerned Story, § 581 ad fin- 2^ Even according to Roman law in its modern form, the forum, rei sitce 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 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 sitae was introduced. (Nov. 69, c. 1, applies only to ihe forum delicti commissi, and under this fall cases of disturbance of possession.) § 236] NorroNs delating to moveables. 515 action in our courts was not entirely accidental or capricious : we shall thus indirectly protect the importation of goods into the country, for, as a rule, the possessor will bring the things he has in possession to his domicile." E.g. the rule, " possession is nine points of the law," 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.^^ But, besides these limitations, the possessor may also appeal to those limita- tions of the right of action which are inseparably involved in the acquisi- tion of the possession according to the laws of the place where it was acquired.^^ (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 inforo domicilii, or in any other jurisdiction, although there is no such limitation to be found there.)^^ [This rule has been recognised in Scotland in the case of Todd v. Armour, 1882 (Ct. of Sess. Jleps. 4th ser. ix. p. 901), where it was held that a horse bought in open market in Ireland, where sale in open market cures the vitium of a theft, could not be vin- dicated in Scotland by the true owner, albeit the law of Scotland attributes no such efficacy to the sale in open market.] That is in consequence of the rule given above (§ 226, 1) as of universal application in the law of ^ We may no doubt reach a diflFerent result if we go back to the historical origin of this limitation of vindication, and try to determine its international validity by reference to its origin. There was no action at all in older German law for recovery of moveables, and if an attempt to recover them was associated with an averment that possession had been lost by delict, the place where the delict was committed, i.e. the law of the place where possession was lost, would decide. But it is no longer possible, now that the idea of the vindication of property has become genera], and, on the other hand, the idea of protecting a bona fide possessor in his possession has been introduced, to go back to that historical origin with a view to establish a rule for the international treatment of the legal propositions on this subject. ^ The law of that place is now regarded by many as the only competent rule : see Eccius or Eccius Forster, Freuss. Privatr. i. § 11, note 25. Asser-Rivier, § 44 ; Weiss, p. 768 ; Preface to the new Belgian Bill, Rev. xviii. p. 462. '^ The notion that such limitations upon the right of action as, " Sand muss hand wahren," i.e. "possession is nine points of the law," 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 modern 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.R. 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 all that he gave for it. ' Austrian Statute-Book, § 367 : "There is no action against a bona fide possessor of a moveable thing if Jie 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 any one to whom the pursuer himself had intrusted it for use, or for custody, or for any other purpose. In these cases, the bona fide possessor has acquired the property of the thing.") The object of such restrictions upon ifindication is the special security of the traffic of the country where they exist. They Si6 bar's international law. [§ 236 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 itself is intended to remain perman- ently in some particular place {res in aliquo loco constituta, L. 3 ; C. uhi in rem abtio, 3, 19). It is also the only possible rule in cases where the possessor cannot appeal to the restrictions imposed upon such actions by the laws of his domicile — when, without any voluntary prorogation, or any jurisdiction given revindicatione, the real action for delivery of the moveable article can be, and as a matter of fact is, brought in foro rei sitce. In such cases he cannot appeal to the limitations of the Zea; 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 follow its instructions (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 sitce, without the necessity of any voluntary prorogation or jurisdiction revindicatione ; and if this is done, the possessor cannot appeal to such limitations of the vindication as are recognised only in his domicile and not in country 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, or at the place of his domicile, although they may be recognised at the place of action. The rule, that under certain circumstances it is incompetent to vindicate moveables, does not comprehend, therefpre, all moveable things which are subject to commerce in that country — i.e. everything the possession of which is acquired in any such way in that territory. Allgem. deiitsch. Gesetz. vi. § 306 : "If goods or any moveables are sold or transferred by a merchant in the course of his business, the person who honestly acquires them acquires the property of them, although the seller was not owner. Property rights of an earlier date are extinguished. All rights of pledge or other real rights which were constituted at an earlier date are extinguished, if the person acquiring the thing was ignorant of them when he acquired it. "If goods or other moveables are pledged and delivered by a merchant in the course of business, a right of property or any other real right of an earlier date in these things cannot be pleaded to the prejudice of the bona fide holder of the pledge, or those deriving right from him. "This article has no application if the things were stolen or lost. " These provisions are so expressed as to protect the person who acquires such things, only" where they were acquired within the territory, and not in cases where the acquisition took place abroad, while the action is brought in the territory, the defender belonging to that territory. The right thus acquired, which in substance is full enough, is limited in the area of' its operation by the failure to limit the right of action in the statute. It may be doubted whether the provision of the Code Civil, § 2279, "En fait de meuUes, la possession vaut titre," has any more extensive operation, at least in so far as the thing may have been brought into a. territory subject to the law of France after the person who claims it has lost possession ; see supra, § 226, note 37. See C. de Bruxelles, 9th Aug. 1876 (Dubois, Rev. viii. p. 497) : The rule, which in the general case excludes vindication of moveables in Belgium, releases cargoes which have been secretly withdrawn from an arrestment in another country, and are- subsequently sold in Belgium, from all the effects of that arrestment. §237] PRESCRIPTION OF MOVEABLES. 51/ mean that the law will hold such an action, if it be raised, as inadmissible on grounds of morality or public interest, as an actio injuriarum 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 Iotm 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, or are in the occupation of a person who is domiciled there.^^ 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 domieilii. 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 prorogation 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, which stand in indissoluble connection with each other, should be deter- mined by different laws, the former by the lex fori, the latter by the lex domicilii or the lex rei sitce?'^ The rules which we have thus worked out must of course be applied to the case of vindication of documents conferring rights on the bearer of them, although with certain modifications resulting from the fact that these documents are at the same time vehicles for relations of obligation. We reserve the discussion of this subject for our chapter on commercial law. Pkesceiption of Moveables. § 237. We have already (§ 223) touched upon the prescription of moveables, and maintained that, as a general rale, the lex domicilii of the possessor must give the rule.^^ We may again point out that prescription and the limitation of actions for recovery of property must necessarily be subject to the same law, but we must examine the theories which are opposed to our own somewhat more closely. According to one opinion, the lex domicilii of the possessor is the ^ Stobbe comes nearest the view taken in the text, § 32 adfin- The limitations which are good at the place of acquisition, and those which exist by the lex fori, will both, according to him, be available to the possessor. =» So Savigny, § 368 ; Guthrie, p. 192 ; Unger, p. 178 ; Beseler, § 39, note 21 ; Eoth, Bayer. Privatr. § 1 7, note 84. Laurent, vii. § 240, on the other hand, pronounces against any attention being paid to the lex fori. Even a French judge is, according to him, never to apply the lex fori to things which are in another country. ^ See this contradiction e.g. in Koth ut cit. notes 81 and 84. '2 For the view taken in the text, which rests partly on the application of the lex domieilii and partly on that of the lex rei sitce, Mass^, pp. 102, 103, and Wharton, § 3S1, note 7, both pronounce. 5i8 bar's international law. [§237 universal rule ; this opinion ^^ will in most cases give the same results as that which I have adopted in the text. Others propose that the lex, rei sitce shall be universally applied.^* This latter opinion rests on the consideration that continuous possession is the fact at the bottom of prescription, and that this possession must be governed by the lex rei sitcB?^ 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 timfe 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. This calculation of proportions can be carried out in applying our theory, by which the law of the domicile is applicable, and the lex rei dtce ovlj applicable in exceptional cases, to things, or aggregates of things, where these are permanently attached to some particular place, and by which at the same time the onus is laid upon the possessor, who invokes this exceptional application. But the calculation cannot be carried out if we attempt to follow the changes of locality to which moveables of all kinds are subject, changes which no one can control. That is the true reason why those writers who regard the lex rei sitae alone, following Savigny's lead, take as their guide simply the law of the place in which the thing last was.^'' But then an active effect is thus attributed to that law for a period during which the thing was not, as a matter of fact, within the territory .^^ In this way it would be possible for a thing, the possession of which had not yet run for the full time, to be at once transferred to the. ^ J. Voet in Dig. 43, 4, No. 12. Pothier, Traiti de la Prescription, No. 242. Merlin, Rip. Vo. Prescription, sect. 1, § 3, No. 7. Haus's theory (p. 34), that the lex domicilii of the owner rules, has very little influence. It can only proceed upon the untenable assumption that the owner can only be 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 conferrsd 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. ** So Molinaeus in L. 1, C. de S. Trin. ; Giinther, p. 737 ; Muhlenbruch, i. § 73 ; Oppenheim, p. 398 ; Wachter, ii. p. 385. 35 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, although in general the lex domicilii must, as we have said, give the rule. ^ So Eoth, Deutsch. Pnmtr. i. § 51, note 99 ; Bayer. Privatr. i. § 17, note 85 ; Stobbe, § 32, note 17 ; Fiore, § 204 ; Laurent, § 246 (who, however, reads the provision of § 2279 of the Code Civ. simply as an extinctive prescription) ; Asser-Rivier, § 44 ; Weiss, pp. 766, 767. Of course, this theory will respect the prescriptive possession which has already, according to the law of the previous residence, been completed, see Savigny as cited. The theory which I have adopted (cf. § 225) is partly in agreement with Eoth's and Stobbe's views. 38 The same reason prevents us from agreeing with Schiiffner (pp. 84, 85). He proposes to regard exclusively the law, within whose territory the conditions of the prescription first came into existence. § 237] PRESCRIPTION OF MOVEABLES. 519 possessor in full ownership by a change of locality, that change being a matter which would be entirely under his own control.s9 Lastly, there is a theory by which a marked distinction is drawn between the limitation of real actions and the prescriptive acquisition of a right; while the latter, according to the character of the thing, is to be determined by the lex domicilii of the possessor or the lex rei sitce, the former, as being a rule in limitation 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 limitation 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 sentence, as is the case, whether it had been established before the action was begun. There is accordingly a rule recognised by the older authorities: " Prceseriptio pertinet ad dedsionem litis, non ad ordinationem causce." [The law of England seems to have adopted the rule laid down by the House of Lords in the case of Don v. Lippman, 1837, 5, CI. and F. 1, viz. that the lex fori will regulate all questions of pre- scription, although Mr Westlake, § 238, regards the principle as extremely questionable. That case, being a judgment pronounced in a Scots case, is of course, regulative of the Scots law, and is in accordance with the doctrine of Erskine (iii. 7, 48) and Story, § 576, who regard prescriptions as be- longing to the litis ordinatio. The judgment is, however, looked upon by Mr Guthrie (Savigny, p. 269) as subversive of the older and sounder law of Scotland. He reviews all the authorities, and reference is made to his learned note.] •* Savigny says, " There can be no doubt that all these periods of possession (during which the thing has been in different territories) must be added together. The terra of the prescription, however, and the complete acquisition of the property, must be judged of by the law of the place at which the thing is last found, because it is only at the expiration of the whole period that the change of property takes place; before it has only been in preparation." That the periods should be added together is in itself quite right, but that does not imply that the product is to be regarded exactly as the law of the last place concerned would regard it. The proper course ratlier is to make a calculation of the proportions of the different periods. Stobbe seems to think that a proportional calculation of this kind may be supported in the case of a change in the period of prescription brought about by new legislation within the territory. But when a change of locality takes place, it is then that the caprice of the in- dividual comes into play, as Stobbe points out, and therefore there is necessarily some danger in applying exclusively the law of the last place to which the thing was brought. But, if we take the analogy of the theory, which Stobbe seems to hold to be correct with regard to altera- tions of the law within the territory, the possessor can only appeal to the prescriptive period which is applicable by the law of the place in which the thing is subsequently found, on the footing that the period of possession which he has enjoyed under the law where the thing originally was, shall not be taken into account. " Story, § 576 and § 582. 520 bar's international law. [§ 238 3. EIGHTS in re aliena. General Principles. § 238. The rules of law concerning jura in re aliena are partly subject to modification at the will of the parties, partly limitations imposed on the parties in the interest of the freedom of property. In the former class, as Fiore (208) and Laurent (viii. §§ 300-302) have pointed out, some other law than that of the lex rei sitae may rule : it may be the law of the contract by which the right is set up, the law by which a testament is to be construed, or the law of the domicile of the parties concerned. The rules of the second class, on the other hand, must always be applied as the lex rei sitce directs." ^^ No doubt it may be difficult, in particular cases, to distinguish the two classes. In such cases, of course, the law of the place in which the thing in question is, must rule, and, as we shall see hereafter, in contracts referring to particular items of real estate, a certain presumption obtains that the parties are subjected to the lex rei Slice, even although they might have given it the go-bye. The result, therefore, is that in practice, where real rights over immoveable- estate are concerned, there is a preponderance in favour of the application of the lex rei sitce, so that many authorities, especially in Germany, using what is, literally taken, too broad an expression, speak of the exclusive dominion of the lex rei sitce.*^ We do not propose to discuss the matter here in detail, for there is an infinite variety of real rights. It is rather the province of a treatise which takes up the subject of private international law from the stand- point of some particular territorial law to deal with them. We may, however, for the sake of illustration, point out that the duties of a life- renter as against the fiar may possibly, e.g. if the liferent is the creation of a family relationship, be determined by the personal law ; ** but, on the *> Cf. Code Civ. § 686. " II est permis aux proprietaires d'itdblir sur leura proprUUs, ou en faveur de leurs propriitis, telles servitudes que ion leur semMe, pourvu niamnoins qv£ let services itdblis ne soient imposis ni d la personne, ni en faveur de la personne, maia seuUment d, unfonds etpour unfonds et pourvu que ces services n'aient d'ailleurs rien de contraire d I'ordre public." ^ Kg. if the lex rei sitce does not allow an estate to be burdened with an irredeemable debt, a foreign owner cannot lay any such burden on it. *' Savigny, § 368 ; Guthrie, pp. 187, 188 ; Unger, p. 177 ; Stobbe, § 32, note 18 ; Eoth, D. Privatr, § 51, note 95. In my former edition I took this view. *• Laurent, vi. § 15, vii. § 339 ; Fiore, § 208. The question, to whom the fruits belong with reference to a particular point of time, to the fiar or the liferenter, is ruled in this way (Fiore, § 210). So, too, the question how far a liferenter as such can cut wood (Laurent, vii. § 344, in contrast with Fiore, § 211, who proposes to apply the lex rei sitce) ; so, too, the duty of finding caution (Laurent thinks not, § 347). This comes out particularly plainly, and it is an important illustration, in the case of a liferent given by the law over an estate as a whole. It would e.g. be absurd to require caution from a father, who does not require to give caution under his personal law, in respect of some heritable property lying in another country. Who should make the claim, unless a special guardianship were set up inforo rei sitce ! § 239] KlGhTS IN RE ALIEN A. 521 other hand, the rule of the Code Civil, § 595, which allows contracts of lease, granted by the liferenter, to endure for nine years after the close of the liferent, but no longer, is a rule of law which must always be respected as the lex rei sitce.^ This last rule of law, which is different from the Eoman rule, exists in the interests of agriculture. The farmer, whose rights should, in strict logic, come to an end with the rights of the liferenter, is to have security for a specified time, while, on the other hand, the liferenter is not to anticipate unduly the rights of the owner who comes after him.*^ The lex rei sitae, too, must be taken to determine the maximum duration of the usufruct that can be given to a corporation {e.g. settled by the 619th article of the Code Civ. at 30 years) ; the question here is ii question of protecting the freedom of ownership against the undue prolongation of a burden. But it is plain that any one, who proposes to give a corporation an usufruct, may limit its duration as he likes, and may reduce it below the measure which is allowed by the lex rei sitce, while the law of the nationality or the domicile must rule the interpreta- tion of the testator's will. If this law, then, prescribes a shorter duration than the lex rei sitce, we must in doubt hold that the usufruct of a real estate is given for this shorter period only.*' Application of the General Principles to Moveables. § 239. As regards real rights over moveables, in so far as the relations of the owner and the person enjoying any such right are concerned, the law of the place in which the thing by accident happens to be will be less frequently applied, and therefore the personal law or the territorial law, which governs the contract on which the servitude rests, will more fre- quently be applicable. In such cases it will generally be possible somehow to set up an obliga- tion to grant the real right in so far as the thing is in the power of the owner, and if the owner of the thing should carry it off to a country in which the right would not be recognised as a real right, he would as a = See Wharton, § 487. ^8 See Weiss, p. 802, and the judgments of the French courts cited there : also Laurent, viii. § 112. It is, however, to he noticed that the French authors on this subject, who have principally in view the law of France (see note 14), have, in that respect, another and a better foundation for their opinion than German authors and German courts have, who, in the rules of law enacted by the statutes of their country, have before their eyes a case in which the legislator maintains the lotteries of his own country, and only forbids those of foreign countries. § 257] FOREIGN LOTTERIES. 567 sound than the reasoning on which they are based. Thus a judgment of the Supreme Court of Berlin, of 16th October 1855, 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. Again, in a judgment of the Appeal Court of Liibeck of 11th September 1849,^^ it was said : "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 Frankfort 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, know- ing that that was forbidden by the laws of his {i.e. the collector's) country, he cannot appeal to these foreign laws, so as to escape payment, if the foreigner wins ; this plea will be repelled by the Replica doli. The same result, viz. decree against the collector by the tribunals of the State to which the lottery itself belongs, may more correctly be referred to this consideration, that the obligation of the defender was to be tested by the law of his own domicile, and that the foreign law by which the obligation of the other party was to be tested, could not on general principles (see supra, § 250) be taken into account at all, after that party had already performed his side of the contract. A judgment of the German Imperial Court (iii.), of 12th July 1881,^® held it to be sound that an action by a foreign lottery collector directed against a person domiciled in Prussia, presumably a Prussian, on account of a claim founded on the purchase of lottery tickets, should be thrown out without taking any account of an averment that in certain cases the tickets had been procured, not in Prussia, but at Bremen, at the domicile of the collector himself, on this ground, because the question whether an act is to be regarded as illegal, is to be decided by the law of the court to which appeal is made.^® The obligation of the defender in this case was ruled by the law of Prussia, and was obviously null. Nor was this nullity affected by the fact that in this or that instance, when the defender happened to be in the immediately adjoining territory of Bremen, he took tickets there. All the less could any weight be put upon that fact, as the collector, the pursuer, presumably knew of the prohibition which existed in the law of Prussia, as the defender was well known to him : thus the application of the Prussian prohibitive law could not for a moment be represented as an invasion of bona fides?^ The exact ground upon which the decisions in such cases have been put is, however, i!" Ebmer's CollectioD, ii. pp. 158-160. " Entsch. V. § 33 (cf. especially p. 129). ^' Then follows the usual reasoning as to the coercitive laws on Savigny's model. '" If, in such cases, the prohibitory law were not to be regarded, a door would be opened for evasion of it. 568 bar's international law. [§ 258 of special importance, because in more modern times even the public loans of foreign States may often be touched by prohibitions of this nature,^^ and because modern legislation generally experiments in all possible and conceivable prohibitions, frequently without any great success. It is worth while, then, to protect at least in some measure the possibility of international commerce and intercourse in lines that will harmonise with toTia fides. The challenge of contracts is subject to the same law as that by which their validity is to be tested. Their liability to challenge is simply an incomplete or conditional invalidity. ^^ In the challenge or reduction of a sale because of lesion to the extent of more than one-half of the whole,^* or because of defects in the thing sold, the law as to locus premitentice,^^ the right to resile upon rejection of arles or arrha that has been given, the right of re-purchase, and the right of restitution against a contract, we find applications of this rule.^^ 4. Impoet of Obligatory Conteacts. § 258. 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 obligatory 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 will 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- 21 Cf. e.g. C. de Douai, 6th August 1883 (J. xi. p. 190). ^" Rules as to the challenge of legal transactions are part of substantive law. Judgment of the Supreme Court at Berlin, 11th February 1858 (Striethorst, Neue Folge, 2nd year, vol. i. p. 51). Cf. Masse, p. 158. 23 Foelix, i. p. 249 (§ 109) ; Hert, vi. 4 ; Masse, p. 220 (in the sale of real property, as a rule, the lex rei sitce. See Masse, p. 223) ; Fiore, §§ 293, 294 ; Brocher, ii. § 82. Laurent, viii. § 145, proposes that the personal law of the parties shall be the absolute rule, because there is a close connection between a failure of consensus and incapacity of the person. But although the law^ protects a party against his own thoughtlessness by allowing him to challenge a transaction on account of IcBsio enormis, this is not effected by declaring him to be incapable of acting. " BouUenois, ii. p. 454 ; Foelix, i. p. 230. 25 See generally J. Voet in Dig. 4, 1, § 29 ; Story, § 331 ; Wiichter, ii. p. 404. Wachter recognises this in so far only as rights are concerned which parties may renounce. According to the general principles which we have assumed (§ 247), we cannot approve of this restriction. See, too, Savigny, § 374 ; Guthrie, p. 249 ; Renaud, D. Frivatr. i. § 42, note 26, and the judgment of the Sup. Ct. of App. at Liibeck, of 30th January 1850, reported by Rbmer, ii. p. 228. As to restitution, see sujn-a, § 154. 1 Thbl, § 44, ii. § 259] IMPORT OF OBLIGATORY CONTRACTS. $69 called dispositive rules of law that the theory of those authors rests,^ who say that the immediate effects 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 conse- quences 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 renunciation of the contract by reason of the occurrence of some subsequent event.^ The former are results that can be foreseen, 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 lor dilatoriness, punctual payment should belong to the category of things unforeseen. Further, it is an error to determine objections which may be taken to the validity of a contract by the law that is recognised 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 substantive grounds — they determine 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 validity of the obligation.* 5. COKTKACTS, THE OBJECT OF WHICH IS A MONEY PAYMENT. § 259. 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, especially in the judgments of English and American courts. Suppose that a debtor, who is bound to pay a certain sum at a 2 E.g. Fcelix, i. p. 247, and note i.; also Fiore, § 257. ^ Foelix, i. p. 249 et seq. § 109. See, on the other hand, with much emphasis, Asser-Rivier, § 36, p. 81. * Cf. e.g. Foelix, i. p. 237, § 100. See, on the other hand, in particular, Asser-Rivier, § 38, p. 82. = Savigny, § 374 ; Guthrie, p. 247 ; Demangeat, in note to Fcelix, siip. cit.; Story, §§ 330, 331. 1 In contracts as to landed property, circumstances will frequently compel recourse to he had to the currency of the law of the place where the suhject is. See supra, § 251, note 47. 570 ^^A''^ INTERNATIONAL LAW. [§ 259 particular place, is asked for payment at some other place, is the sum to be determined by the nominal or statutory 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 dollars 48 cents,2 but the course of exchange with England gives it a higher value by 1 per cent.— is then the pursuer of the action entitled to 448 dollars, or to that sum and 1 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 payment according to the statutory equivalent. It might be impossible 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 consequences 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 therej 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 exchanges in case the rate at the place of payment as compared with 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 grouuds, the difference between the rates of exchange in the two places.' In the case of settlements between traders, it is generally in the 2 There is, however, an exception to this, viz. in the estimation of duties on goods where, duty is payable ad valorem. Story, § 309, note 6. ' L. 2, pr. D. de eo quod certo loco, 13, 4. § 260] FORCED CURRENCY. 571 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 bills, 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.* FOKCED CUKRENCY. § 260. The question, whether a creditor must accept a statutory forced currency of depreciated foreign paper, is answered in the negative by Mass^ ;^ and in the same way by Pardessus, § 1495a, and Wharton, § 518 ; at least the creditor, they think, can only be required to accept such a paper currency at its real value. Although the creditor has no means of forcing his 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 * Cf. AUgem. Deutsche Weclisel Ordnung, § 57, rule 2. = Cf. Story, § 368 et seq. ; Wharton, §§ 514, 515. Lord Eldon saj's [in Cash v. Kennion, 1805, 11 Ves. 314], "If lie fails in that contract," i.e. his contract to pay at a certain place on a certain day, " wherever the creditor sues him, the law of that country ought to give him just as much as he would have had, if the contract had been performed." "From this," says Westlake, § 226, "the conclusion has been drawn that, where the time and place of payment are fixed by contract, the rate of exchange ought to be taken as at the time so fixed. " [Bertram V. Duhamel, 1838, 2 Mo. P. C. 212, and in accordance with this doctrine the rule is stated thus in Mayne on Damages, p. 209: "Where an action is brought in England to recover the value of a given sum in a foreign currency, upon a judgment obtained abroad, the value is that sum in sterling money which the currency would have produced, according to the rate of exchange between the foreign country and England at the date of the foreign judgment." See, too, the Scots case of Ainslie v. Murrays cited supra, p. 550. In Campbell v. Hannay, February 15, 1809, F. C, the Court of Session held that a person sued for payment of a sum which he should have paid in India, was not entitled, as the suit in Scotland had been rendered necessary by his own default in not paying in India, to claim discount at the Indian rate of exchange. This case can hardly be defended on sound principle : reason would support a decision that the creditor should not suffer by the debtor's obstinacy, but the Court were not entitled to impose a fine. The ordinary principle of allowing the current rate of exchange on payment e.g. of an Indian debt in England, is applied in Kibble v. Graham's Trs. by the House of Lords (1830, 4 W. and S. p. 166). The Supreme Court of Comm. of the German Empire on 28th .Tune 1875 decided (Treschow v. Bockelman, J. iv. p. 161) that, in all that concerns payment or performance, the law of the place of payment or performance will rule.] « p. 170. ' Fiore, too, § 300, holds the view that the law of the place of payment must prevail even against foreign creditors. Pardessus and Masse, however, concede that the courts of the State which sets up the forced currency, would enforce it absolutely. 572 bar's international law. [§ 260 other law which in whole or in part destroyed his right of action under the contract — e.g. the law of prescrij)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 accident- ally to be made somewhere in that country is not decisive of the point.* This view too is, as a practical matter, not of any great danger. 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 view first stated 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.* Adoption of a new Standard. The Actions brought against Austrian Eailway Companies after the introduction of a Gold Standard IN Germany. § 261. The question, in what currency a debtor must pay, received a peculiar illustration shortly after the German Empire, by the laws of 4th December 1871 and 9th July 1873, adopted a gold standard in place of a ^ Two countrymen make a contract at their domicile, and for convenience agree that pay- ment 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. ' Cf. too. Masse, ut eit: "II arrive souvent que Ics Lois d'un pays, dmit le valeur monitaire est ddpricUe, iiablissent dans VinterH du commerce des rigles particiiliires pour les payments d, faire aux Grangers." Cf. e.g. § 3 of the Italian Statute of 1st May 1866, which is no longer of any practical force, and the judgment on it of the App. Ct. of Florence of 21st March 1870 (Jour. viii. p. 446), with Olunet's note, ibid. It is plain, from the exposition we have given in the text, that an enactment like that of the 1895th § of the Code Civil is to be applied to foreign creditors, even although the obligation falls under the law of France : that article provides ; ' ' L' obligation qui risulte d'un pret en argent n'est ioujours que de la somme nunUrique inoncie au contrat. S'il y a eu augmentation ou diminution d'espices avant I'epoque du paiement, le dibiteur doit rendre la somme numirique pretie, et ne doit rendre que cette somme dans les espices ayant cours au moment du paiement," Masse, p. 171. Gust. Hartmann, in his paper cited in the next note, § 57, says very soundly: "The only civil tribunal that can decide the case is, in respect its powers are restricted, neither an adequate nor an appropriate instrument to afford the necessary protection to the citizens of its own country, who are touched by a foreign financial law, which may happen to be unjust. § 261] ADOPTION OF A NEW STANDARD. 573 silver standard," The German statute of 1871 took as its basis the actual relation of gold to silver that then existed, according to which 15J lbs. of silver were worth 1 lb. of gold. Soon afterwards an enormous fall in the value of silver took place, so that France e.g. found herself forced to suspend free coinage of silver, and in that way practically to adopt also a gold standard. Austria adhered to her paper currency ; but the value of silver sank so low, that the value of the Austrian silver florin was no longer any higher than that of the paper florin, and at times even sank below it. Now a number of Austrian railway companies had put upon the international market debentures, in which the amount of the bond and of the interest coupons to be paid were first stated in Austrian silver currency, but at the same time also, at the option of the holder, in German thaler currency, in francs, and partly also in pounds sterling, in English currency, and in Dutch.^^ At the same time, besides the place or places of payment in Austria, there were other places of payment appointed, at the option of the holder, in the German Empire, in Paris, in London, etc. The railway companies then, or by far the greater number of them,^^ paid at the appointed places, but only at the subsequent value of the Austrian silver florin, i.e. according to the exchange of the Austrian silver florin ; and in consequence foreign creditors suffered a loss, according to the value of silver, of from 15 per cent, to 20 per cent., which latterly was as a rule the amount of the depreciation. A number of actions were fought, with much excitement among the public and the press, against the companies in Germany, jurisdiction being given to the German courts by the establish- ment of the places of payment within the Empire. By an unbroken series of decisions, what was at one time the Supreme Court of Commerce for the Empire, afterwards the Imperial Court (Eeichsgericht),!^ gave decree against the companies:" whereas the Austrian Courts (see Bekker, p. 12) gave judgment of absolvitor. The grounds of the German decisions may be shortly summed up to this effect, that the obligations in question, as they had a place of performance in Germany, were, in the option of the creditors, to be ruled by the substantive laws of that place of performance, at least in so far as the business of payment was concerned, and that they were 1° On this subject, see particularly a paper by Bekker, " XJher die Couponsprocesse," and Gus. Hartmann's "Internationale Geldschulden," 1882. 11 As to some distinctions in detail among these bonds, see infra, note 19. 12 The Aussig Teplitz Company, the Staatseisenbahn Company, and the Slid Bahn, satisfied their creditors without any deductions. See Bekker, p. 7. 1' Cf. judgment of the Sup. Ct. of Comm. 19th February 1878 (Kaiserin Elisabeth Bahn), and 8th April 1879 {Siid-NordDeutsche Verlindungs Bahn). (Dec. vol. xxiii. § 72, p. 205, and vol. xxv. § 11, p. 41.) .Tudgmcnt of the Imp. Ct. of 12th December 1879 (Elisabeth Bahn) (Entsch. d. E.G.I. § 12) ; also R.G.I. against the Lemberg-Czernowitz-Jassy Co. of 4th October 1882 (Entsch. ix. § 2). 1^ Of all the German courts, that of Cassel was the only one that gave judgment in favour of the defending companies, see Bekker, p. 19. This judgment mistakenly lays down that a debtor, as regards the payment due by him, can subject himself to any other law than that to which his obligation is in other respects subject, can thus for this purpose subject himself even to several systems of law, so that the creditor may have his choice. 574 bar's international law. [§ 262 thus brought under the provisions of the law of the German Empire, i.e. in the present case its laws as to currency. § 262. The assailable point, as Bekker and Hartmann agree in thinking, is the theory borrowed from Savigny of the determination of everything con- nected with the obligation according to the law of the place of performance, and also the theory of the implied intention of parties. But, at the same time, we may fully concur in the judgments of the German courts as against those of Austria in so far as the result is concerned. The statements of the different currencies for payment upon the bonds were not, as was averred on behalf of the companies, made for the convenience of the public. As every one knows the difference between the currencies of different countries, statements made for that purpose would have been idle. The object rather was to lull the foreign public into the belief that any depreciation in Austrian currency should have no effect at all upon the sum of principal and interest due under the bond. So familiar was the history of Austrian currency and of Austrian public debts, that it seemed worth while to refer to a number of foreign currencies, which, in the event of any depreciation in that of Austria, should afford the creditors a guarantee if they chose to take it. But then something quite unexpected happens. It was not the Austrian legislature that altered the currency but, on the contrary, the Germans did so, and, in consequence it may be of this change — we may at once concede this point, although in the main other factors determined this — the value of silver sank. It is therefore incorrect, and here again Bekker and Hartmann are agreed, to speak of any real intention of parties, even although by implication merely. The only question to be asked is. What in these circumstances accords with the nature of the case, with the reason of the thing, or, as Hartmann expresses it, with the necessary hoTia fides of international commerce and intercourse ? Now, what the Austrian obligants, in their endeavour to give security to the creditors by a reference to the currencies of other countries, said was truly this : " If this Austrian currency of ours seems to you to some extent to be an untrustworthy customer, at least you will rely on these foreign currencies we lay before you, and, as the currency of all States depends upon their laws, you will trust the laws of these States. These States, whose credit is above suspicion, will not make any changes in their laws to your prejudice." But in this vote of confidence, which the Austrian debtors in this way passed in favour of foreign currency laws, was involved a further vote of confidence, viz. that these foreign currency laws would not change for the advantage of the creditors, or rather that, if they did change,^^ the change would correspond with some change in the nature of If e.g. silver is suddenly depreciated by an enormous and rapid increase in its production even the promptest adoption of a purely gold currency would be a measure of absolute necessitv to protect frora the most serious loss creditors in long outstanding claims, all persons who depend on fixed incomes, and wage-earners. In such a case non-alteration by enactment would in truth be an alteration in the purchasing power of outstanding obligations, i.e. an alteration in their real value. <;i«i,iuu § 262] ADOPTION OF A NEW STANDARD. 575 the thing itself, and what was called a change would in truth rather be the maintenance of the status quo. We reach this result simply in this way, that wherever one precious metal is adopted as a medium of currency in place of another the same assertions may he made, viz. that it is done in obedience to necessary laws, and, on the contrary, that these laws do not require any such change. It may be that in every case, after all practical interest in the matter is over, science can tell us with certainty which of these assertions was well founded. But, so long as the matter is one of practical consequence, a government can do no more than give a positive answer in view of the relations of credit over which it itself has control.^* The debtor, then, who asks for credit in a foreign country, and calls in foreign legal systems as his sureties, trusts their discretion in this matter : at least, if his creditor desires it, he, the debtor, must recognise them as worthy of credit. A debtor, who does not desire to give any such vote of confidence in a foreign legislative system, must simply contract upon the currency of his own country. But then, of course, if this currency is not sound — and it is unsound, if it fails to follow the requirements of the time, where that is necessary — he must in issuing his scrip put up with more unfavourable conditions in other respects, e.g. in the rate of interest he will have to pay. The same considerations dispose of the following argument also on the Austrian side, which is the most formidable that can be urged in that behalf.^'' If, so the objection is put, any given financial reform was to affect other countries, the State, to which the creditors belong, would have it in its power with one stroke to double the money obligations due to its subjects by foreign countries. All it would require to do would simply be, in passing from a silver to a gold standard, to double the relative vahie of gold as compared with silver. But such a system of robbery is, as Hart- mann (p. 55) remarks, inconceivable among civilised States. If for no other reason, at least for this, that as all its subjects could not be creditors, it would hit one section of its own subjects very hard, and would produce the crreatest confusion in all relations of property within its own bounds. The more natural supposition is that every civilised State would strive to strike the true proportion in such a change in its money laws. We may then "o further, and say that if a person chooses another as his repository of trust, as an oversman or umpire, he may of course, if the person so chosen practises deceits, challenge the validity of the decree, but cannot do so, if there is no dolics or even culpa lata proved against him, but he is rather shown to have done his best in his own interest to reach a sound decision. Bekker, who on the main question ^^ holds the Austrian companies to 1' Oa the necessity of such legislative steps in money matters, see Soetbeer, Deutsche Miin- zvmd Bankverfassung, 1881, p. 25, Goldschmidt, Handelsr. i. 11. p. 1176 ; judgment of the Sup. Ct. of Conim. 19th Feb. 1878 (Entsch. xxiii. § 72, p. 207). '' Cf. Hertzka in Faucher's Vierteljahrssehr. fur Volkswirthschaft, vol. i. 1876, pp. 221, 229. 18 See specially p. 135. Bekker thinks that those companies which, besides their promise to pay in Austrian money, promised also to pay in the thalers and florins which before the 576 bar's international law. [§ 262 have done riglit,i^ thinks that in truth the claims of the creditors were for a certain quantity of pure silver, and he therefore proposes that in future, to avoid disputes, scrip intended for an international market should not be for a specified sum in any local currency or coin, but directly for a specified weight of the precious metal, e.g. a certain number of grammes of gold. He proposes to abolish in the future all that justifies the existence of the bearer bonds in different currencies that are at present so extensively used. In this proposal, however, Bekker overlooks, as Hartmann, who again supports the judicial determination arrived at by the German courts, very rightly notices, that the creditor's concern is that he shall on the day of settlement get, not a particular quantity of precious metal, but money's worth ; or, to speak more accurately, a power of purchase or exchange to a certain extent of the great mass of commercial commodities. To be still more exact, he desires to get the same power of purchase or exchange, which the sum of money written upon his bond represents at the moment at which it is issued, and conversely the debtor, too, desires to give on the day of settlement to his creditors this same power of purchase or exchange, but no more. But, since the value of gold is exposed to serious fluctuations, scrip, issued for certain quantities of gold, will not succeed in attaining what in all reason the parties must have desired. In theory it is quite sound to point, as Hartmann does — and this furnishes him with a bridge by which to pass to another proposal — to the possibility of a vast additional burden being laid upon the debtor, if the value of gold and its purchasing power should rise uninterruptedly, especially if a fall in silver took place concurrently, and the debtor belonged to a country with a silver currency. But in the case of bonds, which are not to be paid up for some time, things may go the other way. The purchasing power of money generally may sink, and, although at the same time the value of o-old as against silver may rise, it is still possible that the creditor, who takes payment in gold, may suffer very real prejudice, although he will have no cause in law for complaint. The international bimetallic currency, which is recommended by many well-known persons and by Hartmann himself change of standard had currency in North and South Germany respectively, would pay all they could be asked to pay, if they made their payments in Austrian silver currency exclusively, and defrayed besides the trifling percentage, which would be the result of their undertaking to maintain a constant exchange upon the German places of payment as compared with the exchange of the day, which of course would vary. They required only to pay aomethinff more than the exchange on a bill payable at sight. " But then all the scrip of the different companies' defenders was by no means in all respects alike, as the decisions of the Supreme Court ia Germany showed, and as Bekker himself p. 135, sets out. Even in Bekker's view those alternative bonds, which were first issued after the German change of standard, would, in the option of the creditor, about which there would be no doubt, require to be paid in gold, since no one could for a moment maintain that in these cases the debtor was not subject to the changes which had taken place In the German legislation as to currency. Again, the scrip which was expressed in pounds sterling must suffer the same fate, because m England no change had taken place at all, and, in any case, in England, the same number of gold pieces would have to be paid as had been due at the outset § 263] ADOPTION OF A NEW STANDARD. 577 will not protect the creditor from loss in this case, or prevent damage in the oppoate case of a rise in the value of money, an event which, it may- be, is not so likely to take place. But it is quite beyond the sphere of law to attempt any discussion of bimetallism, since it does not yet exist, and, to all appearance, has not come any nearer for years. There is no other means readily available for protecting both debtor and creditor from excessive loss than the old expedient which lies in full information as to the obligations on both sides.^" If, for reasons which can be easily understood, the great debtors despise this remedy, there is no help for them, in so far as the derangement of values is concerned: apparently, however, they can easily console themselves with advantages of another kind. § 263. The practical business world, however, by issuing its bonds as against different currencies, leaving the choice of them to the debtor, has instinctively grasped at what is the best remedy for the time, and, perhaps, in spite of theoretical objections, such as Bekker's, for all time. The remedy, which shall protect the creditor against any depreciation of currency that may ocdur in any State, particularly in that of the debtor, is that he shall have an option of demanding payment in the currency of some other State, or of several other States. It may be that the creditor will gain, if on§_ of these States makes a miscalculation in some currency law.2^ But, on the whole, the probability of this is much less than that of its opposite, just because States as such are for the most part severely burdened with debt, and are therefore much more inclined to do something for debtors than for creditors. This course of action, which the business world had with sound instinct adopted, had a consequence which very few ]>eople dreamt of, owing to the change of currency made by the German Government, and the depreciation in the value of gold as compared with •silver, which followed on that ; but this consequence was none the less on that account in accordance with the bargain which had been made. The future will show whether it was an advantage for the great under- takings that must have recourse to the international money market, and in particular an advantage for Austria, that the largest part of the Austrian railway undertakings should try, under cover of erroneous judgments of the Austrian Court, althoxigh pronounced in optima fide, to throw discredit on these international forms for transaction of business. A great part of the Austrian State debt, and the debts of railway and other establishments ^ The publication of information by one side wMch is now becoming the fashion, i.e. if the debtor desires it, will probably prejudice the creditor. '^ The Austrian companies may be supposed to have made a considerable profit at the expense of their creditors, by paying in silver florins ; because the premium on silver as against Austrian paper money was gone, and accordingly these Austrian debtors paid no more than if they had been paying in paper, whereas their obligation was to pay in silver, which was then of a much higher value. Arendt and Hartmann (p. 61) have pointed this out. 2 578 bar's international law. [§ 264 requiring credit, has had to make special provision for payment in gold and in foreign currency, e.g. in German marks. Without doubt that must have contributed to depreciate still further silver and Austrian securities. ^^ 6. Payment of Interest. Leading Points of View. § 264. The obligation to pay interest is always an accessory of some other leading or principal obligation. Hence the question whether interest — ^be it pactional or by operation of law — is due, and from what point of time and up to what point of time it is due, must be dependent on that territorial law to which the leading obligation is itself subject. But, since the payment or performance of an obligation may to a certain extent be subject to some law other than that on which the validity of the obligation and questions therewith connected depend, the point, as to the height to which the rate of interest may be raised, and what, among several, is to be the recognised viaximum, needs special consideration. Of course, unless there is some coercitive enactment in the way, the real intention of parties, be it express or implied, may make a difference in this respect. But the most difficult question in this connection, and that which is of most practical importance, is that of the rate of interest.^ The payment of interest may either be put as an indemnity to the creditor for the gains which he might have made by using or laying out his money in some other way, or as a crop which grows where the principal is used : " Usurce vicem fruduum ohtinent " (L. 34, D. 22, 1). If we take the former point of view, we shall adopt the law of the creditor's domicile as our rule;^ if we take the second, we shall adopt that of the debtor's domicile ; for it is the labour and the other property of the debtor out of which the lent money produces fruit. This cannot, however, be asserted without making exceptions. Circumstances may show that the creditor, if he had had the money, would not have spent it at his domicile, but else- where, and in the same way that the debtor will make the money productive at some other place than his domicile. The law of these other places will then decide : the former we may describe as the place where ^^ The gi-ounds of judgment in a most interesting decision by the German Imperial Court (i.) of 9th February 1887 (Entsch. xviii. § 12, p. 47, prces, p. 53), in substance amount to the argument stated in the text. In that case, the Austrian Company had not appointed any place of payment within the German Empire. On that account the grounds of the previou.» decisions could not be applied. I iirst had my attention attracted to this judgment a year after I had written the text. 1 The question whether interest is due, a question which is, in substance, identical with that, from what time and to what time is it due, must be carefully distinguished from the question as to the rate of interest. Generally both questions are treated together indiscrim- inately : hence come the obscurities and contradictions, which are to be found in such quantity in this chapter of the law, both among authorities and injudicial decisions. 2 The law of nationality has no meaning here : for it must be presumed that one denies oneself, or takes the use of money not in onfe's own country, which has been abandoned but at what is actually the centre of one's business life. § 264] PAYMENT OF INTEREST. 579 the money would have been spent, the latter as the place where it was spent. But when does the consideration of the creditor's abstention from spending give us the rule, and when is our rule to be taken from a con- sideration of the investment or application of the money made by the debtor ? In any case we must take the creditor's position as decisive, when we have to make good a wrong to him : and in such cases it will plainly be sufficient, if an actual wrong has been done to him, be the debtor as innocent of it as you please. The practical justification of such a rule is that, in cases of failure to perform civil obligations, the subjective fault in the party failing is often impossible to substantiate. It will be conceded that in many other cases connected with contract relations we must frequently be contented with objective wrong, and that an exact enquiry into the subjective responsibility for it would frequently be entirely unpractical. Putting these cases aside, the point of view of where the creditor would have spent the money, the law of his domicile, must prevail, if the creditor has given the money for what is, comparatively speaking, but a short time. The application of the money to a particular purpose for a short time seems to be a subtraction of it from the ordinary rules of enjoyment or use of it at the creditor's domicile, a denial of that enjoyment to the creditor. But, on the other hand, we must put ourselves at the point of view of the application of the money by the debtor and for his behoof, and take that point of view as our guide,^ when the money is given to be used for a considerable period : if in a sense an investment has been made of it on or over the property of the debtor. In such cases the creditor in truth is drawing a harvest from the work and from the property of the debtor, both of which are, by the capital invested in them, either made to bring forth fruit for the first time or to bring forth more abundantly. The place where the money would have been spent by the creditor is, however, frequently the place for the performance of the obligation to pay interest, especially where the place of performance is fixed by special iitn-eement of parties in commercial transactions. For the man of business will naturally direct all payments due to him to the place where, but for them, he would have to deny himself money. The distinction, in matters of interest, between cases in which the rulino- consideration is where the creditor would have used the money, and those in which it is where the debtor has employed it, will no doubt in many cases give rise to doubts. But we are not entitled on that account to say that this basis of treatment of the subject is unsound. No doubt it ^ Ib my former edition I took this as the guide in the case of all pactional interests. See in this sense Stobhe, § 33. Th8l, § 85, note 4, makes the lex domicilii of the debtor the rule .as a matter of principle. This view comes very near the one I had adopted in my former .edition, since iu most cases the money will find the application at the domicile of the debtor. 580 bar's international law. [§ 265 is new, and, in the former edition of this work, the solution of such questions was made dependent on the distinction of obligations to pay interest into pactional and ex. lege* But this distinction will not give us a principle for the determination of the territorial law, for this reason, that if parties know that in particular circumstances interest will be paid on outlays and advances, e.g. even although there has been no special stipulation to that effect, the undertaking of an obligatory relation of that kind is not so essentially different from an express stipulation for interest that in the one case one territorial law should be applied, and in the other case an entirely different law, Wharton ("§ 501) distinguishes between, \st, Interest secured by contract, either directly or by implication ; 2nd, Interest which must be paid on account of a wrong, particularly breach of contract ; and, 'i'lrd, Interest on account of delay. This division is not very far from what I have adopted ; but delay in performance is, accurately speaking, also a kind of breach of contract, and Wharton himself abandons his division again, in order to be able to apply Savigny's theory of the seat of the obligation, and the suprem- acy of the law of any fixed place of performance. Maximum Eate of Interest. § 265. The local law may in the first place be important for determining what is the highest legal rate of interest,^ and on this point one theory, which is very strongly represented among German lawyers,^ forbids the judge, ever to allow a higher rate than is sanctioned by the legal system whichi prevails at the seat of the court : because the meaning of any law which limits the rate of interest is that no judge of the land shall use his- authority to further any undertaking so immoral and so contrary to the- public interest as an usurious contract. That by foreign law, to which the- transaction is subject, 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 correctness of this last rule, although it may raise a doubt a& to whether the transaction can properly be held to be usurious. Laws against usury are intended to protect the debtor from oppression ; but this can only come within the cognisance of the law of the place where the court is situated, in cases where the borrowed money is to be laid out at that * See, too, on the same side, Fiore, § -261. 5 This question has, it must be admitted, in modern times lost much of its importance, and does not come np so often for consideration, as many States no longer have a limit to the legal rate of interest. But still analogous questions may arise even in these States, in so far as they do not allow absolute freedom of contract in the matter ; this is the case by the la-w in 1867 of the North German Bund, now that of the German Empire. " Savigny, § 374 ; Guthrie, p. 2.^7 ; Stobbe, § 31, note 8 ; judgment of the Sup. Ct. of App. at Celle, of 16th Sej)t. 1852 (Magasinfur Hannover. Eecht, ii. p. 445 ; Seuffert, viii. § 1). Ratio of judgment by the German Imp. Ct. (ii.) (Entsch. i. | 30, p. 61), but see Laurent, viii! § 2G1 ; Demangeat on Foelix, i. p. 232. § 265] MAXIMUM RATE OF INTEREST. 58 1 place, and the maximum allowed by the law of that place is exceeded. Another reason for rejecting the theory which proposes that the lex fm-i 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 higher rate of interest prevailing in other States is often justified by the insecurity of the law of the land, or the vsdder prevalence of speculation there. Industrial progress would be very seriously hampered in countries which are for the first time being opened to civilisation, if the subjects of other coimtries could not make loans to them at higher rates of interest.^ Besides all the older authors, who take the law of the place where the contract is made, or where it is to be performed, without any further limitation, as the rule in this matter, Savigny's theory ^ is directly and expressly resisted by the modem French school,^ by the law of England and that of the United States, by that of Austria ; ^^ further, e.g. by Fiore (§ 264), Wharton, Brocher {Nouv. Tr. § 145, in a comprehensive discus- sion)," and Asser-Eivier (§ 91). Many lay down as an universal rule for interests that they are regulated by the law of the place where the contract is made ; ^ others take that of the place of payment, when the place of payment is fixed.^^ These theories rest upon the assumption that the law which is to rule the ^ Wharton, § 508. * Laurent, Tiii. § 203, decides in favour of the theory which I have disputed in the text, on the ground that the French law of 1807 made a transgression of the legal rate of interest a delict. But are there not delicts of a purely local character ? See, on the other hand, Laurent ; Brocher, ii. p. 248. ' Aubry et Eau, iv. p. 606 ; Masse, p. 176 ; judgment of the Court of Bourdeaux, of 26th January 1831 (Sirey, xxii. 2, p. 178). The grounds of judgment iu this last case sanction in France interest which is allowed by the law of the domicile, and of the place in which the contract was made, but which is by French law illegal, even for a period during which the parties have been resident in France. C. Cass. 24th December 1874, aff. a judgment of the Ct. at Grenoble (J. it p. 354) ; C. de Chambeiy, 19th February 1875 (J. iii. p. 181) ; Trib. Seine, 12th May 1885 (J. xii. 305). C£ too, Cass. 9th June 1880 (J. viL p. 394). " In Austria the decree of court, of 12th January 1787, provides that interests which have been validly bargained for by the law of the place in which the debt was contracted, may be validly ranked by a judge in bankruptcy, although they are higher than are usual in Austria (Unger, p. 188). " Brocher in the end takes the law of the debtor's domicile as the ruling law {loi du principal UaJblissement du ddbiteur). In its practical result that will be very much the same as the rule of the text. If the debtor changes his domicile, it may be that a new law will rule the prolongation of interest payments for a new period. ^ Cocceji, vii. 11 ; Kodenburg, iii. p. 2, i.-. 2, § 6 ; J. Voet, Comm. 22, 1, § 6 ; Masse, p. 176 (No. 131). ^ P. Voet, c. 2, I 9, No. 12 ; Everhardus, Cons. 78, No. 24 ; Christianseus, i. decis. 283, Nos. 12, 13. Burgundas also (iv. No. 10, cf. with No. 2P) belongs to this class ; and Story, § 298 ; Burge, iii. p. 774, § 304e; Foelix, L pp. 250-253 ; Trib. Civ. Melun, 18th June 1874 ; C. Cass. 21st December 1874 (J. iL pp. 374, 375) ; and Clunet, iMd. In the cases reported the decisions were sound. Boullenois's view is not distinct, ii. p. 472 (cf. 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. Nos. 194, 195, takes a peculiar view. The law of the domicile of tlie creditor is to prevail, except in so far as he may have subjected himself to another. 582 bar's international law. [§265 obligation 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 capriciously choosing some other country for the place of performance, or for the conclusion of the contract. And even the adherents of this theory maintain the impossi- bility of choosing a foreign place for the performance, or the conclusion of the contract, in order to escape from the law of the country to which the parties belon^.^^ , The place of performance is, however, like the place of the contract, so far of importance that from it may be inferred in what place the loan is really 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 who is to keep it for a considerable time, and to continue to pay interest upon it after he has 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 " Unger, p. 180. " J. Voet, ad loe. cit, : ' ' Modo etiam horui fide omnia gesta Juerint nee consulto talis ad ■mutuum contrahendiim, locus electus sit, in quo graviores essent, quam in loco in quo alias con- trahendum fuisset, probatce inveniuniur." Story, § 304 ; Westlake, § 225. 'WhartoD, § 505, note, says rightly that "Westlake's rule, by which the law of the place where the principal ought to be repaid will rulte, does not hold good, when the place of such payment is not the place where the money is invested, but merely a central business point, selected as a matter of mutual convenience, as e.g. are New York banks by New England or other capitalists making loans in the "West. ^* C. Lyon, 3rd August 1876 (J. iv. p. 356). [The general doctrine is thus expressed in that case, viz.: "In truth money is a Commodity; its price varies according to the place where the contract of loan is realised and put into operation. Thus the rate of interest must perforce depend on the economic conditions among which the parties contract, the contract is performed, the lender remits his money, and the borrower who receives it ought to pay it. Further, the contract of loan made and carried out abroad, even by a French subject, should be ruled by the law of that foreign country." More recently the Court of App. at Kouen has decided (12th July 1889, J. xvii. p. 123) that a loan made to a foreign company whose place of business is abroad, is, as regards the rate of interest, stipulated to be ruled by the foreign law, even when the lender is a French subject. But where no interest is stipulated, and an action is brought to recover both principal and interest in France, then the rate allowed will be the French rate (Benalad v. Samama, 1885, J. xiii. 459). These decisions are all to some extent rendered obsolete, by the abolition of limitation on the rate of interest in commercial matters, by the statute of 12th January 1886. In France now any rate in com- mercial matters is legal.] " Cf. Circuit Ct. of Nebraska, January 1881, J. x. p. 416 [Kellog v. Miller, Alb. L. J. xxvi. 499. In this case there was a heritable security given for the loan. The law of its situs was held to rule] as regards a limit of interest. The place in which the money was advanced, and the place of repayment, are both declared to be immaterial. Lyon-Caen et L. Renault, Dr. c. 1, § 1387, declare expressly for the law of the place where the money is laid out ; " C'est en effet, de I'emploi et du lieu ou il est fait que proviennent surlout Us risques." Testa, p. 136. § ^66] PAYMENT OF INTEREST, 583 receive repayment of capital and interest at his domicile, can certainly never determine ^s the legality of the rate of interest. Various Grounds for Obligation to pay Interest. § 266. In proceeding to consider particular cases, we find :— First, That as a rule the obligation to pay interest upon money advanced on real security will be ruled by the lex rci sitce, the law of the place where the security subject is.i* That is because, where we are concerned with capital outlays that have a tract of future time in view, the law of the place of their application must rule, and that is the place where the real estate lies. The only exception to this rule, as Wliarton points out, will be if the loan is made primarily on the personal credit of the borrower.^" SecoTid, Interest upon advances against goods to be delivered, wUl be dealt with by the law of the domicile, or trading establishment, of the person who made the advance.^^ In particular, a commission agent calculates the interest on his outlays according to the custom of his domicile.^^ Third, In open accounts current, each of the two traders reckons interest according to the rules of his own country.^ Fourth, Interests upon capital sums given for the support of a manufac- turing or trading house are subject to the law that prevails at the seat of that business. Fifth, Interests on sums, which are payable on scrip at some particular place, will be calculated by the law of this place of payment ; in any case this holds in favour of a bona fide holder, even as regards the limitations on the rate.^* Sixth, As regards interest due ex lege^ for instance — (a.) The rate of interest which the buyer has, under certain circum- stances, to pay upon the purchase price depends on the law of the seller's domicile, or on that of his trading establishment, as the case may be ; for ^ The domicile of the creditor may also be of importance. If two natives of this country- enter upon a contract of loan in a foreign country, it is more easily inferred that the transaction is infraiidem. legis, or that the money is to be spent at their domicile, than it would be if the creditor were a foreigner. The term infraudem legis may be fitly applied to cases in which parties, to escape from the usury laws of their own country, choose some foreign countiy 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 trans- action belongs, and they disguise this fact. A mark of this would be that the creditor cannot show any interest in having the contract performed abroad (Thbl, § 65, 2). " Phillimore, § 728 ; Wharton, § 510 ; see Kellog v. Miller, supra, note 17. 2° J. Voet, Faiid. 22, i. § 6, and Fiore, § 265, who seem to regard the personal obligation as in general the important thing. 21 Wharton, 407 ad fin. ; Fiore, § 262, says the law of the place whore the advance is given , but means perhaps w^hat is stated in the text. 22 App. Ct. of Lubeck, 31st October 1859 (Seuffert, xv. § 222). ^ Fiore, § 263. ^ Wharton, § 505a. ^ It is generally said, and that was what I said in my former edition, that interest ex lege ia subject to the law of the place to which the legal relation, whose operation is to produce the interest, belongs. (Cf. e.g. Fiore, § 261 : "Because interest ex lege is one of the immediate 584 bail's intrrnational law. [§ 266 the matter here is reimbtirsement to the seller, for having parted with th« thing sold. But if traders have specially arranged for paymeat of the purchase price at some other place, as a general rule we must hold that it is at that place that the seller needs the money. He must have interest then according to the law and the rate that is recognised there. In sales of real property we must, as a rule, have regard to the rate that is due according to the law of the place where the property is.^* (J.) The obligation of a guardian to pay interest for moneys not time- ously invested by him for his ward, or not timeously handed over by him on the expiration of the guardianship,^'^ must be ruled by the law of the guardianship, and by the rate which prevails where the moneys might, in due course, have been employed to profit. In such a case we are plainly dealing with neglect, i.e. with a wrong. (c.) This is still more appropriate when one, e.g. a mandatary, has illegally applied moneys to his own profit. But, as one who acts illegally cannot be permitted, as a matter of fact, to make any profit out of that illegality, he must refund at that rate of interest which is the highest of those that can be considered in the matter. The opposite party, who has right to the money, may therefore, as he pleases, claim either interest according to the custom of his own domicile, or according to the law of the domicile or trading establishment of the mandatary. Again, too, if the mandatary ought to pay at a particular place, which has been fixed, if that be the place where the money that ig due was to have been laid out, the rate of interest of this third place may be appealed to. (d) In the same way, in the case of moratory interest,^ the domicile or the trade establishment of the creditor must rule. But if some place of payment distinct from the domicile of the creditor has been stipulated for, then, as a general rule, the rate of interest of this place will prevail, and the authorities, as well as the judicial utterances on the point, almost all express themselves as in favour of the law of interest as it prevails effects of the obligation. " Laurent, viii. § 220. ) But this rule is not fair altogether in different cases ; it is inadequate for this reason, that the payment may, as we noticed above, fall under a different law from that which rules the qaestion whether the obligation is good. 2' The obligation which, by the law of Italy (Code, § 507), falls ex lege on the liferenter to pay interest on the burdens over the estate, is in itself to be ruled by the law to which the liferenter is on the whole and in other respects subject. For the burdens and privileges of the fiar, as against the liferenter, must be determined by one and the same law. The rate of interest may, however, fall to be regulated by the custom of the place where the thing is situated, e.g. if the fiar, to meet Vex burden, has incurred a loan upon security of the subject at that place. 27 Fiore, § 261 (Cod. Ital. § 308). 2' The question whether there has been delay is not to be discussed in this connection. The German Imp. Ct. (ii.) on 20th Feb. 1880 (Entsch. i. § 30, p. 61), following the Imp. Ct. of Comm. [Entsch. xxiv. § 102, p. 388), holds that the law of moratory interest is in itself dependent on the law of the place of performance of the obligation : and from that it infers that the other question, how far compound interest from the day of citation can be exacted, is also to be ruled by the law of the place of performance. This last inference is sound, in so far as the question of rate of interest dealt with in the text is excluded. NOTE K\ PAYMENT OF INTEREST. 5^5 at the place of performance.^^ This rule will almost always be a sound rule in the case of payments between traders, and obligations by bill must, as is well known, except in the case of what are known as " domiciled bills," be performed [i.e. paid] at the domicile or at the trading establish- ment of the individuals who are bound by them. We must, however, remember that in truth moratory interest is a measure of damages of a rough and ready kind. If, then, at the domicile of the creditor a rate of interest prevails, the exorbitancy of which can only be explained by the fact that money claims are less well secured, and less easily recovered there than elsewhere, we cannot, as a matter of course, allow the creditor that high rate. If, too, the creditor was accustomed to invest his money in the debtor's country, and if the claim was only brought into court because the debtor was in arrears in the payment of a rate of interest which had been stipulated, we may hold that the creditor's loss is no i^reater than the interest which prevails at the debtor's domicile. Here, as in many other cases in international law, we can only hit upon what is right by a sort of aequitas. Process interest, i.e. interest which a defender, without any of the other circumstances of actual mora, has to pay in respect of the duration of the process [if he shall lose his suit], just because a process had to be instituted against him, is in truth simply a special kind of moratory interest. The institution of the action supplies the rrwra. The question, then, whether it is due must depend on the law to which the obligation is itself subject, while its rate must be determined on a consideration of the matter already discussed. A judgment of the Imperial Court ^o seems to test this kind of interest by the lex fori. But it cannot be a decisive element that this kind of interest is no doubt in a sense a product of the process. It may be better described as a product of the original obliga- tion. This latter is modified by mora, and also by the institution of a process. The German Civil processordnung does not speak of this kind of interest, and holds it therefore not to belong to the law of process, but to substantive law. NOTE R ON §§ 264-266. INTEREST. It is abundantly settled by Scottish authority th^t the rate of interest on contract obligations will not be determined by the lex fori, but by the law of 29 FceUx, i. pi>. 251-253 ; Masse, p. 184 ; Savigny, § 374 ; Guthrie, p. 257 ; Fiore, § 267 ; Wharton, § 513 ; Weiss, p. 804, note 4, and the French decisions cited there ; Sup. Ct. Stuttgart, 1st July 1852 (Seuffert, vi. § 1) ; Sup. Ct. of Comm, 6th Dec. 1878 (Seuffert, xxxv. § i.). Older writers say that the law of the place must rule, "mM mora contrada, facta est." Bartolus in 1, 1, C. Trin. No. 18 ; Curtius Roohus, de stalutis, sect. 9, § 49. Boullenois, ii. p. 252, " Oit la demeure est emxwue," cf. pp. 478, 479. 3» I. on 9th Feb. 1883 {mosdh. viii. § 45, p. 175). But see, on the other hand, the decision of the same court (ii.) cited sv.prO', ""te 28. [See, too, Benaiad v. Samama, 1885, C. de Cass. J. xiii. p. 459, where the rate of interest to be allowed upon the sum brought out in a count and reckoning in the French courts, for the period during which the process had depended, was held to be the French rate.] 5 86 bar's INTERNATIONAL LAW. [NOTE R the contract. Thus, in the case of Graham '0. Kibble (1820, 2 Bligh 126), the House of Lords had to adjudicate in a case where a person had deposited bonds with a trading house in India, these bonds bearing interest at eight per cent. The depositor then died, having named one of the partners of the Indian house to be his executor ; he realised the bonds, and employed the proceeds in the business of his iirm in India. Some time afterwards, the representatives of the depositor brought an action in Scotland against the executor, who was then domiciled in Scotland, and finally established his liability to account for the bonds. In a subsequent action for the interest on the bonds, the House of Lords gave eight per cent, on the bonds up to the date they were realised, twelve per cent, (being the current Indian rate) from that date till the date when decree was pronounced against the executor, and five per cent., the British legal rate, from that date till payment, the debt having become, after the previous decree, a British debt. Again, in the case of Ferguson v. Fyffe (1841, 2 Eob. 267), which was a case wherein the representatives of a person deceased sought to recover a sum of Indian interest from a mercantile firm in whose hands the deceased's funds had been left for many years for use in their business, the Lord Chancellor (Lyndhurst) remarks : " The Court of Session appears to have taken a very correct view of the international law upon this subject, in considering the law of the country where the debt is contracted as furnishing the rule by which the nature and extent of the obligation were to be tried." His lordship refers approvingly to a previous case. Palmer and Co. v. Glas (1835, Ct. of Sess. Eeps. 1st ser. xiii. p. 308), where the Court of Session applied the law of India as to the rate of interest in the case of a claim for moneys invested in an Indian business. In both cases Indian interest was given. It will be observed that his lordship speaks of the place where the debt was contracted. From the context it will be evident that this expression is not used merely in the narrow sense of the place in which the instrument of obligation was drawn up, or the money originally paid over, but as meaning the place in which the loan was employed. The same rule was followed in the more recent case of Price and Logan v. Wise (1862, Ct. of Sess. Eeps. 2nd ser. xxiv. p. 491), where Indian interest was allowed to the executors of a clerk, who claimed moneys due to him by an Indian commercial firm. Again, in Gillow and Co. v. Burgess (1824, Ct. of Sess. Eeps. 1st ser. iii. p. 45), interest on an open account, for furnishings by an English tradesman to a person resident in England, was refused by the Scottish Court on account of the provisions of the law of England that in such circumstances no interest is due. On the other hand, an Irish Insurance Company, which establishes agents in Scotland and undertakes to pay its policies in cash in Scotland, must submit to the law of Scotland as regards interest (St Patrick Assurance Company v. Brebner, 1829, Ct. of Sess. Eeps. 1st ser. viii. p. 51). In this latter case, however, the court were of opinion that interest would be due (but for special circumstances) on the amount sued for § 267] AGENCY. 587 after the date of citation in the action, that is, that process interest would be regulated by the lex fori. But, as has been seen in the case of Kibble already quoted, Indian interest was allowed on an Indian debt at twelve per cent, up to the date of final judgment, a decision which was repeated in Wilkinson v. Monies (1821, Ct. of Sess. Eeps. 1st ser. i. p. 89), interest on an American debt being allowed there at seven per cent, up to the date of judgment. In Palmer and Go's, case, cited sujora, Indian interest was allowed up to final decree, and the lex fori was thus set aside in favour of the lex contractus. 7. Parties to Obligations. Agency. § 267. The local law, to which an obligation is, as regards its import and effect, generally subject, will also rule the question whether each of several persons, who have jointly stipulated for something or jointly contracted a debt, has a right to claim, or a duty to satisfy the whole obligation.^ If the obligation does not rest upon hona fides, or if the special character of the contract {e.g. ex delicto) does not require the application 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 (beneficium, divisionis, excussionis).^ Story (§ 3276) takes the following illustration : By the law of England a double policy of insurance upon a ship for the same voyage is quite competent ; in case the ship is lost, the insured may require the whole sum insured from either of the underwriters he pleases, and then the underwriter who pays has pro rata a right of recourse against the other. By the law of France the first policy, which covers the full value of the subject, is the only valid 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 English law, to make good the obligation, 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 himself, he did not mean to make himself liable to any such claim, and the Frenchman has no right of recourse against the other, because the French law, which supplements and prescribes his contract intentions for him, knows of no such right.* 1 So, too, Fiore, § 254. ^ These pleas are matters of substantive law, and do not, therefore, depend upon the lex fori ; Burge, iii. p. 765 ; Fcfclix, i. p. 254 ; Story, § 3226. 3 Code de Commerce, art. 359. ^ So, too, Story, for this reason: "If a different view were adopted, there might be an entire want of reciprocity. " 588 bak's international law. [§ 268 It is a very important and very common question whether 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, Fiore (§ 248), and several of the judgments to which Story (§ 286& et seq.) « refers, 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. As Hert* has noticed, however, according to this view the case must be distinguished, in which the contract which has been concluded by the mandatary is not to become binding until it has been confirmed by the mandant. In such a case the mandatary has in truth, only prepared the contract, it is the mandant who concludes it. This is to be remembered in connection with the method in which many insurance companies' at the present day are in use to make their contracts of insurance, and in connection, too, with those not uncommon cases in which commercial travellers do not make a definite contract for the house which they represent, but merely collect orders and then hand them over to their principals for definite acceptance. But again, on the other hand, we must distinguish the case in which the mandatary has given himself out to the third party not as a mandatary, but has concluded the contract in his own name, as commissioner in the technical sense.* In such a case the mandant has simply given the mandatary an order to do a piece of business in accordance with his own (the mandatary's) law, or in accordance with the law of the place where the business is to be done, and the • mandant has subsequently to relieve the mandatary of the transaction. These distinct cases are frequently improperly confused. § 268. 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 the legal relation that exists between him and his agent.^ This view will give a result contrary to that expressed above, for, as the agent's contract only takes effect as ■^ Wharton, § 406, is of this view; so, too, Foote, p. 366. " Qui facit per alium,faait per se." This theory of English law and of the law of the United States hangs together with the prevalence of the view, in England and the United States, that the law of the place where the contract is made is, generally speaking, regulative of it. The results are in England evaded by holding that in doubt the contracting party has contracted only with the mandatary, and not with the mandant. See Foote, p. 368. * De coll. § 4, note 55. Accordingly a decision of the Appeal Court at Lucca holds (J. viii. p. 449) that in such cases the contract concluded by the agent is not liable to the stamp-duties imposed by the law of his {the agent's) country. 'See Clunet, ibid. ' See the grounds of decision given by Lord Lyndhurst [in Pattison v. Mills, 1828, 3 W. and S. p. 218, and 1 Dow and CI. 342 : " If I, residing in England, send down my agent to Scotland, and he makes contracts for me there, it is the same as if I myself went there and made them."] 8 So, too, Fcelix, ut cit. ; Fiore, § 249 ; Pardessu.s, § 1354. « So Thel, Handelsrecht, ii. § 25. § 268] AGENCY. 589 regards the principal by force of the contract between these persons, and only so far as that contract permits, the obligation of the principal must be determined by the law to which the contract of mandate itself is subject,^*' and that, as a rule, will be the lex domicilii of the principal. By the second view, which regards the contract as concluded with the principal 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 intention 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 to which 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 honafide 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 protection than if he had contracted without inquiring whether there was any authority at all ; in both cases he may have recourse upon the agent to whose express or tacit representations 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 contractus 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 i» Unusual limitations of agency can only be regarded if proper notice is given. Thbl, Handelsr. § 31, c. ; Savigny, Ohligaticmenrecht, ii. pp. 60, 61. 11 The interpretation of contracts concluded by the agent must depend upon the lex loci actus. See judgment of Imperial Court of Germany (i.) of 5th January 1887 {Entsch. No. 9, p 33). A charter party made by two English brokers as representatives of the defenders, one of whom was domiciled in Quedlinburg, while the other had his business establishment in Braila, fell to be interpreted as regarded the penalty clause by English law. See the discussion on the interpretation of contracts, supra, § 256. 12 See in this sense Asser-Bivier, § 97 ad fin. We shall come back to this snbjeet in discussing commercial law, Laurent, vii. § 453. 590 bar's international law. [§ 269 be, for instance, in a joint stock company restricting the powers of its manager by requiring the concurrent authority of a board of management, or of a general meeting of shareholders, when he would not be bound by that restriction 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 liability 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 general principles which govern the interpretation of contracts, the law that is in force at the place where the authority 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 permanent 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. § 269. We must distinguish between the 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 the 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 agent's authority,^* 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 sitcB 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. Story (286tZ) calls attention to this difficult case, but gives no decision on it himself : By the law which prevails at the place of execution of a power of attorney, the domicile of the mandaht, that power of attorney 13 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 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) ; Judgments of the Supreme Court of Commerce, 4th Dec! 1872 (Seuffert, xxviii. § 48); 17th Feb. 1871 (Seuffert, xxvi. § 101). Fiore, who proposes generally to apply the law of the place where the contract is made, provided the agent has power to make it, says very truly (§ 254) that in spite of that the responsibilities of the partners of a trading firm cannot be determined by the law of the place in which they have concluded a contract by means of an agent. The one view is contradictory of the other • for it is in truth the contracting will or intention of the firm that limits their liability. Fiore falls back upon the idea of capacity to act, and attempts to set up the authority of the law of the place to which the firm belongs. " E.g. by the law of England (5 and 6 Vict. o. 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 (cf. Stephen, ii. pp. 76, 77). NOTE 5] AGENCY. 59^ falls with the mandant's death, whereas, hy the law of the place where it is to be carried out, the domicile of the mandatary, it would still subsist. Phillimore (§ 705) in such a case holds that a transaction concluded in name of the mandant in favour of a hona, fide, third party must be upheld, just because hona fides is one of the most essential principles of private international law. Fiore (§ 335) goes still further, and thinks that the power of attorney is to be regarded as still subsisting even as regards the relation of mandant and mandatary, because the law of that place in which the power of attorney is to have its operation must rule. The result of this latter position would be that a power of attorney, the operation of which was not confined to any particular place, but which was intended to have effect, wherever the person holding it thought fit to use it, would have to be ruled by an infinite variety of local laws as different circumstances might occur. It is by no means uncommon in practice to find such powers of attorney, and indeed they are matters of necessity. But if such a decision were given, any protection on which the person giving the power might rely by reason of limitations of the power would prove illusory. Besides, there is no ground on which a theory of testing contracts exclusively by the law of the place where they are to have their effect can be set up. Fiore himself does not adopt any such theory. But no more can I support Phillimore's view. If a man contracts as the agent of a foreigner on the ground of a power of attorney given in a foreign country, the third party contracting with him cannot reasonably be held excused, if he makes no enquiry at all as to the foreign law by which that power of attorney is ruled. The principle of protecting a third party who contracts in good faith must have some limitation, if it is not to be .turned into a source of legal uncertainty. As then, in the case we have put, the third party is much better able to protect himself than the person who gave the power of attorney — supposing that this power of attorney is, as the solution given by Phillimore suggests, to subject him to a law of which he knows nothing — then in the interest of legal security we must decide in favour of the person who ! Laurent (viii. § 256) is of a different opinion : the judgment of the Oour de Chambery of 12th Feb. 1869, which he cites, is to the same effect. 31 So, too, judgment of the Sup. Ct. at Berlin, 15th Jan. 1845. Of. Koch on 33rd section of Pruss. All. L. R. i. 1, p. 45. It is worth notice that the forty-fifth article of the draft made at Berne in 1886, for an international agreement as to the law of railway freights, while in other respects it lays down a uniform rule for actions arising out of the treaties for trans- port with which it deals, provides at the close, " L'interrupdon de la prescription est rigie par les lois du pays ou taction est intentie," NOTE U\ PRESCRIPTION. LAW OF SCOTLAND. 625 a bill payable to order, the bill being drawn in Poland and accepted there, sued the acceptor, a domiciled Eussian, in the courts of Eussia. The period of prescription on such an obligation is in Eussia ten years — in Poland thirty. The Eussian pleaded his prescription, but the court held the period of prescription to be determined by the lex loci contractus — viz. Polish law. This, too, was the doctrine sanctioned in Scotland by an unanimous judgment of the Oourt of Session in the case of Don v. Lipp- mann, 1836, Ct. of Sess. Eeps. 1st. ser. xiv. p. 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 necessary 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 bills in consequence 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 pre- scription is admitted by the very authorities who have established the Ux 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 (Wal- worth V. Eouth, 14, A. 205 ; Story, § 582 ; Wharton, § 538) ; and Lord Brougham, in giving judgment in the case of Don v. Lippmann, 26th May 1837, 2 Shaw and Maclean, p. 730, 5 C. and F. p. 1, 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 Huber V. Steiner (2 Bing, N.C. 202), that if the lex loci contractus makes the obligation wholly void after a certain time, and if the parties have resided within the jurisdiction during the whole of that period, it may be taken as the guide of the court where the action is brought.'' 2 R 626 par's international law. [note U 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 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 liable to action during the period of prescription there recognised. In the case of Eichardson v. Countess of Haddington, 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 Eussia, where a decennial prescription prevails, and remained there for upwards of ten years, was yet liable to be sued on returning 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 prescription 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 Scotland, the lex fori as the rule. 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 extinguished it (Westlake, p. 279, and cases there cited). The law of America follows the same rule as it is laid down by Story (Wharton, § 535) ; the supreme courts of Berlin and Warsaw have taken the same course ; and so, too, have the later French decisions. The authorities on the law of England are collected by Westlake, pp. 278, 279. The leadin" 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 temrms et modum actionis, as others express themselves," and is, therefore, subject to the law of the court to 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, § 5.30), "the Scotch court is not bound or entitled to give effect to a prescription of either of those natures " — i.e. limiting the mode of proof or the right of action—" prevailing 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 contem° § 283] TRANSMISSION OF CONTRACT OBLIGATIONS. 627 plating not doing it, and considering how the law will help them in the non-performance of a duty." Acting on the principles of this decision, the Scots 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 will apply ; it is part of the contract, and not a regulation of the method of enforcing a remedy (Alexander v. Badenach, 1843, Ct. of Sess. Eeps. 2nd ser. vi. p. 326). This distinction accords with that taken in the text between a limitation of actions and an extinction of all obligation. The same distinction is recognised in America (Wharton, §§ 536, 537). With reference 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. Cegielka, 1875, J. iv. p. 243) 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.] 15. Transmission to Heies. § 283. The following principles appear to determine the question whether a contract obligation descends to heirs. 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 obligations 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 Eoman 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.' [The law of Scotland, however, holds that tie question whether a foreign oblird, Grounds for recall of a donation are to be tested in the same way by the lex domicilii of the donor. We must look at the matter just as if the donor had made, and the donee had accepted, the donation under the express condition of recall. But, of course, we cannot without special cause hold the donee responsible to any further extent than the extent to which at the time when the recall is intimated to him he is lucratus.^ For the recall can do no more than recover from the estate of the donee so much of the donation as is still to be found there. Any further obligation upon the donee would only be possible if his own personal law allowed it. 4th, The restrictions imposed upon the donor by the existence 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 property 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 sitcey If the person whose estate is thus subjected to a claim changes his domicile, then, if the question should turn at all upon the lea) 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 also by that of his earlier domicile at the date of his donation ; for, on the one hand, assets of the estate, once validly 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.* In the matter of donation the personal law must be understood to be the national law of the donor, and not that of his domicile, in so far as we are concerned with rules of law, the object of which is the protection of the donor. The reasons which we advanced (§ 252) for the application of the law of the domicile in the sphere of the law of obligations are not applicable here, and these coercitive rules of law, on the other hand, stand in close connection with the law of succession and with the law of the family.' 5 See the interesting, and, as I think, perfectly sound decision cited in the foregoing note. « The question whether he is lucratus depends, first, on the personal law of the donor, and, second, on the law under which the donee is bound. He is only bound to restore to the extent to which both systems bind him. ' On the principles of Eoman law, the querela inofficiosce dotis and inofficioscs donationis are anomalous, since no heir has by Koman law any claim upon the estate of his predecessor while he is alive. It is otherwise by German law. See, too. Code Civil, art. 913 ; Zacharia, Oivilr. iv. § 586 ; Judgment of C. de Paris, 12th March 1881 (J. viii. p. 354). The limitations imposed upon a donor by his national law, with reference to the existence of children, cover his real estate in a foreign country. See Esperson on the preamble of the Italian Code, art. 8 (J. ix. p. 273). 8 Cf. Boullenois, ii. p. 276. 9 On donations between spouses, see i. § 187 ; on donations to juridical persons, 1. § 107. 634 bar's international iah'. [§ 286 II. OBLIGATIONS BY FORCE OF LAW. (OBLIGATIONS quasi ex contractu AND ex delicto.) General Principles. § 286. Obligations, which do not rest upon any intention of parties directed to the creation of an obligation, are either consequences of other legal relations, e.g. consequences arising from family law, or from the law of things, and must therefore be regulated by the law of this leading relation ; ^ or they are consequences of the general obligations which every one owes to every one else within a certain territory. Obligations of the latter kind are obligations ex delicto, and those obligations which are usually described as being quasi ex delicto and quasi ex contractu. It is obvious that the territorial law must desire, in so far as obligations ex delicto, and obligations of an analogous character, obligationes quasi ex delicto, are concerned, to subject foreigners as well as its own subjects to those general regulations. In the interests of public order, the law neces- sarily assumes a coercitive character. Foreigners, if they were to be exempted from its operation, would enjoy a privilege which would oifend the public sentiment of justice and general legal security. But the question arises whether other States are also bound to recognise these obligations, and the legal consequences attached to the breach of them by the law of the place of residence. Older authorities answered this question in the affirmative without any investiga,tion, as much in questions of delict ^ as in questions of quasi contractual relations.* The' same theory was as a rule inclined to submit all obligations directly ' Brocher, ii. p. 144, and Nouv. Tr. % 127, declares in favour of this doctrine. For instance, obligations specially affecting the owners of land, such as those Vfhich refer to the actio agucB pluvial arcendm of Roman law, are, in accordance with this rule, to be determined by the lex rei sites. Indeed the nature of the subject will always forbid any other law than that of the real estate, against which the action is directed, to rule. A foreign sovereign cannot in such cases impose any obligations. Thus no one can raise an action in State A, because some one in State B has polluted a stream, or has executed some operation in the stream that is prejudicial to him. The law of State B, and as a rule its courts, can alone deal with such matters. If the law of B is inequitable, then the only remedy is by diplomatic representation. In the opposite sense, Imp. Ct. (v.) 27th October 1886, according to Bolze's report [Praxis, iii. § 31), no doubt rather a brief report. ^ So Burgundus, v. 2 ; Seuffert, Comm. i. p. 253 ; Reyscher, i. § 82 ; Phillips, i. § 24, p. 192 ; Kori, iii. p. 13 ; Renaud, Privatr. i. § 42, note 28 ; Mittermaier, § 30, p. 116 ; Eichhorn, § 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, 5th August 1843 (Entsch. ix. p. 381) . ' Burgundus, v. 1 ; Christiansens, Decis. vol. i. decis. 283, No. 14 ; Alderan Masoardus, Concl. 7, No. 15 ; Seuffert, Comm. i. p. 256 ; Renaud, Privatr. i. § 42, note 28 ; Schaffner, pp. 123, 124 : Masse, pp. 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, § 289. § 286] OBLIGATIONS EX DELICTO. 635 created by the law to the lex lod actus, making a tacit exception in those cases only which were an accessory of some other legal relation, such as e.g. is the duty of aliment iritra familiam. More modem theories, or at least a certain number of them, on the other hand (in Germany substanti- ally under the influence of Wachter and Savigny), will recognise nothing but the lea: fori* in cases of delict and claims of that class, while obligations quasi ex contractu are in the case of many authors not dealt with at all. The reason assigned by Savigny (§ 374, Guthrie, p. 253) is simple, viz. that the matters here in question are coercitive, strictly positive laws. We have already several times remarked that we cannot recognise this ground in this shape. But in truth it seems as if the law could only sanction claims of this kind if it thinks that to do so would coincide with its own ideas of morality and equity, and if it did, would give effect to them unconditionally. It seems thus that no legal system of law could take as its guide the standard set up by any other system. This reasoning, however, overlooks the fact that a State can make no claim to rule men's conduct and behaviour except within its own bound- aries, and that a rule of conduct, which may be quite proper within our territory, may possibly be unsuitable for any other. The result is : — First, That in any case conduct which does not give a right to damages or penalty by the law of the place where the act is committed, cannot have this effect if the action be raised in another country.^ The opposite view plainly implies an invasion of the sovereign power of the State within whose territory the act in question has taken place. If, for instance, we should allow one of our subjects, who thinks that during his stay abroad he has been wronged by some act of a foreigner abroad, to claim damages in conformity with our law — supposing that by some chance he could raise an action in this country — we are simply claiming for our citizen a privilege in a foreign country over the citizens of that country, and attempting to make foreigners in their own country conform to a law of which they may very well know nothing.^ This is the extreme injustice, which the adherents of Wachter and Savigny's theories propose to put in force under the guise of absolute justice, a thing which, in their * See to this effect Wachter, ii. p. 389 ; R. Schmid, pp. 75, 76 ; Wyss, p. 95. Sup. Ct. Stuttgart, 25th June 1856 (Seuffert, ii. § 3) ; Sup. Ct. of App. Darmstadt, 30th September 1853 (Seuffert, ix. § 1) ; Sup. Ct. Stuttgart, 3rd January 1871 (Seuffert, xxv. § 115, deciding an Actio PauliaTui from the point of view of the law of the delict on which that action proceeds). Muheim, p. 180, in recent times defends the lex fori, but gives no new argument in its favour. ^ See Foote (p. 476), and the English cases which he cites on this point. It is possible that the act or conduct should be begun in a country in which it is permissible, and completed in a country in which it is forbidden, and in which it gives rise to a claim for damages. Damages are in that case due (see Foote). * It is not enough that the lex lod actus forbids the act under a penalty ; it must give a right to claim damages, if such a claim is to be made in another country. (See Foote, 479, 480.) 636 bar's international law. [§ 286 definition of it, does not exist at all. One might perhaps appeal to the protective theory, which is so often applied in criminal law, which gives our State the duty of protecting our citizens abroad in conformity with our law, which is calculated for a particular territory only. But be it observed that a man who acts perfectly lawfully in so far as the lex loci dudus is concerned, cannot well imagine that a foreign State will quarrel this act with reference to a subject of its own, who is a party to the transaction, but whose citizenship is not written upon his face.' To determine the matter by the lex fori, where the lex loci actus gives no claim, or one that does not go so far, is utterly unjust, and all the more that it rests on the good pleasure of the pursuer in many cases whether the action shall be raised at this or at that place. Secondly, It follows that a claim for damages, even if it is not well founded in the circumstances of the particular case according to the lex fori, must be allowed, if it is sanctioned by the lex loci actus. It is quite untrue to say that legal systems only recognise claims of damages, if and in so far as they are in accordance with their conception of absolute justice. On the contrary, there are many cases in which, on grounds of expediency, the law casts responsibility for claims of damages arising ex quasi delictis upon persons, who, on strict investigation, would be shown to be entirely blameless, or whose fault could at least be very questionable. We need only recall, for instance, the Eoman actions de effusis et dejectis and de pauperie, or the provisions of French law as to the liability of parents or employers for acts of their children or servants, which have caused injury, or the provisions of the German statute of liability of 7th June 1871. It is therefore inadmissible to apply the test of absolute justice according to our law to a claim of damages for some act or course of conduct in another country. We must rather recognise everywhere claims of damages which have validly arisen according to the law of the place where the act was done. It is only by holding fast to this principle that we shall achieve a real equality of natives and foreigners in relations of private law in all civilised States, and it is only in this way that a man, who lives in this or that territory, can know on what guarantees for his legal rights he may rely, since foreigners cannot withdraw themselves from their obligations to pay damages, by betaking themselves to their own country. In any event, the injustice which is involved in the non -recognition by the lex fori of a claim which has arisen by the lex loci actus, is much less I ' It is therefore impracticable, and it leads to strange results to apply, as Eccius applies (Ferster-Eccius, i. § 11, No. 5) the law of the parties' own country, where they both belong to one and the same country, for the reason that a man even abroad cannot withdraw himself from the law of his own country and from the obligations which it involves, and that on the other hand the State has to protect its citizens even abroad. Both of these propositions are iTTe\e\a.-D.t petitiones principii. The protection of citizens abroad is not a matter of criminal law, but of public law, and if we allow our citizens to put themselves under a foreign system of law, we must as a rule allow them all that that system allows them. § 286] OBLIGATIONS EX DELICTO. 637 than the injustice of the theory which allows the lex fori, dependent, as it is, upon the choice of the pursuer, to give rise to a claim. In cases which are plainly concerned, not with damages, but with penalties, a limitation of this kind must be conceded.^ For a State can only punish in so far as it can itself declare the punishment to be just; it cannot recognise the foreign sentence as one that may possibly be just, nor can any principle of distinction be found in the circumstance that the produce of the penalty goes not to the fisk, but to the private person who sues for it. Brocher {Nouv. Tr. § 127) is right in calling attention to the intolerable insecurity, which would necessarily result from the application of the lex fori. An act, which was completely legal in the country where it was done, might found a claim for damages, if the one party succeeded in entangling the other, against whom he alleges a claim of the kind, in a lawsuit in some other country, the law of which took a different view of the transaction.^ The great balance of opinion at the present time on the continent of Europe is in favour of determining obligations ex delictis by the lex loci actus, at least in so far as the question of damages is concerned.^" "Whereas the law of England and that of the United States seem only to sanction claims upon delicts or quasi delicts, in so far as these claims are good both by the lex fori and the lex loci actus}^ ^ No doubt it may sometimes be questionable whether a particular claim is a claim for damages or for penalty. In such a case, the proper course will be to let the lex loci actus rule. ' It may be, however, that a law which fastens responsibility e.g. on the State or on some public undertaking, should operate beyond the limits of the territory e.g. as regards injuries suffered by officials of the State or the company, on duty. This law may have the effect of a contract, and may operate accordingly outside the territory. On this ground we can justify the decision of the Imperial Court (ii.) of 13th February 1886 (reported by Bolze, Praxis, ii. § 27, p. 6), which held that the direction of the Pmssian East Eailway was liable for the injuries of one of their servants which had been inflicted upon Kussian territory, but upon the system of the East Eailway Company. '" In agi-eement with the text, Stobbe, § 33 ad fin.; Unger, p. 188 ; Vesque v. Piittlingen, p. 65 ; Stobbe, ut cit. ; Dernburg, Pand. § 48 ad fin. ; Beseler, § 39, vi. ; Eoth, D. Privaf.r. § 51 ad fin.; Bayer. Privatr. § 17, note 117 (with reference to judgments of the Supreme Court of Bavaria) ; Fbrster-Eccius, i. § 1 1, No. 5 ; Laurent, viii. § 12 ; Asser-Eivier, § 40 (p. 86) ; Haus, Dr. § 134 (with reference also to quasi contracts); Brocher, N. TraiU, p. 315 ; Esperson, J. ix. p. 287 ; Bard, § 194 ; Sup. Ct. of Comm. for Germany, 19th January 1878 (Seuffert, xxxiii. § 185 ; Entsch. xxiii. p. 174); Imp. Ct. (i.) 20th September 1882 (Entsch. vii. § 116, p. 378) ; Belgische, Praxis (Picard, J. viii. p. 483) ; New Belgian Draft, art. 8 (Rev. xviii. p. 482) : " Les quasi-contrais, les dilits civils et les quasi-delits sont regis par la loi du lieu ou le fait qui est la cause de Vohligalion s'estpassi." Imp. Ct. (ii.) 24th November 1881 (Bolze, Praxis ii. § 26) : the responsibility of the treasury for the ill-treatment of a soldier by a sergeant is to be determined by the law of the country where the act was done, and to which both parties belong. See, too, v. Martens, p. 340. " Westlake Holtzendorff, § 185 ; Wharton, § 474 et seq.; Westlake, Eev. vi. pp. 394, 395. Decision of the App. Ct. in England [February 1876, The Moxhani, L. E. 1, P. D. p. 107, J. iii. p. 381. See, also, Westlake, §§ 196 et seq.]. See judgment of the Appeal Ct. of Vermont of 20th January 1887 (J. xiv. p. 668): held that an individual could have no action for penalties on account of usurious interest in another State. See, too, Foote, p. 476. 638 bar's INTEKNATIONAJ, LAW. [§ 287 Special Questions connected with Obligations rx delicto. § 287. In the law of delicts the following special questions have still to be answered : — First, What is the place of the act in the legal sense which must rule in such matters, if we suppose that the act itself in the narrowest sense (the manifestation of the will), and its result, on the other hand, fall under different territorial laws ? The question, in so far as civil obligations are concerned, must be answered, for the same reasons as prevail in criminal law, in favour of the place of the act itself .^^ On the one hand, the results of any act may be lost in uncertainty, in a certain sense show themselves everywhere and nowhere, so that an attempt to decide such questions by the law of the place of the result would lead to the utmost uncertainty as to men's rights. Besides, the conception of an " act," which is derived from some positive system of law, cannot be taken as a means of defining international jurisdiction. In that matter we must start from the local situation of a thing or of a person, i.e. his domicile or his nationality, as the case may be. In truth, so soon as we allow that the question is not to be ruled by the place where the act was done, or, to speak more exactly, by the place of the person who is alleged to be liable, at the moment at which he is alleged to have made himself liable, but regard the place where the act has its results, its operation, as decisive, we take away the decision of the question from the lex loci actus, and commit it to that of the domicile of the person who is said to have been injured, or to that of the place in which 12 See the resolution of the Institute for International Law to this effect taken in 1883 at Munich, Ann. vii. pp. 129 and 156. To the same effect in civil matters, Roth, Bayer. Privatr. i. § 17, note 117 ; Ecoius-Fbrster, § 11, note 35. The judgments of the Supreme Court of Bavaria of 1847 and 1856 (Seuffert, iii. § 295), cited by Koth, hold that in the case of a wrong done by letter, the law of the place where the letter is posted will rale. The contrary is laid down by Field, § 620, but he gives no reason for it. A judgment of the Appeal Court at Milan, of 19th September 1881 (J. x. p. 73), lays down that the insertion of a slanderous article in Italian newspapers will found an action before Italian courts, in accordance with Italian law, against a person who has sent it from another country. Press delicts seem in truth to demand a separate treatment, to the effect of regarding the place where they are published as the place of the act. The author may make himself acquainted with the law of this country when he is sending his articles there for publication. See, too, Lawe, Gomm. Zur deutschen Strafprocessordn. 4th edn. 1884, p. 808. But the proposition is not so obvious as it is thought to be. It is, however, at all events more reasonable than the view which will regard, in the case of such an offence, every place in which the publication is distributed as the place in which the delict is committed. The decision of the Germ. Imp. Ct. (ii.) of 23rd September 1887 (Bolze, v. No. 13) seems to proceed on the theory that in the case of an act, constituting a good ground for an action of damages committed by means of a letter sent through the post, the place where the letter is received must rule. But it is just in such a case as this, e.g. where a merchant has unjustifiably recommended his goods, that the danger of this view comes out. The man who writes the letter knows liot what obligations he is incurring. § 287] OBLIGATIONS EX DELICTO. 639 he happens to be for the time. The law of this place is to chalk out the proper line of conduct for persons who reside in some other country ! In the second place, What is the law if the act which is complained of is done in a country belonging to some savage race, or on a desert island, and not within the territory of any civilised State ? As there is no territorial law in such a case to guide us, or at least none to which the subjects of civilised powers can be made subject, the only plan left is to have recourse to the personal law.^* The person against whom the claim is made is thus liable only to the extent allowed by his personal law, but, as reciprocity in such cases is an irresistible requirement of justice, he is only liable in so far as the pursuer would in -pari casu be liable to him. Besides, the application of the personal law is in accordance — with perhaps some modifications — with the recognised usage in the case of Europeans living in the non-Christian States of the East.^* On the other hand, the application of the lexfm, which many^^ recommend in this case, is simply a dangerous mode of avoiding the difficulty. We shall have occasion to deal with this question again in connection with the subject of maritime law. In the third place, If the question is one of liability for damage done by beasts, or by other persons, such as children, servants, etc., it is obvious that the liability can never be broader or go further than the law of the place, where the damage takes place, permits.^® But just as little can it go beyond what is sanctioned by the law of the nationality or domicile of the person against whom the claim is made. For the law of the domicile of the person or the beast that actually does the injury cannot have any power to affect others beyond that territory. We should not ascribe this effect as a matter of course to the law of a domicile that was accidental and merely temporary; but again, on the other hand, the circumstance that the guilty person or the vicious beast was staying at the place where the accident happened, with the consent of the head of the family or the owner, may be taken into account in testing his liability.^'^ If, however, the rule of law prevailing at the place where the damage was done passes the property of the thing that does the damage to the person who suffers it, or to the fisk, we should adhere to the general rule in respect of the lex rei 13 According to the Code of Saxony, §§11 and 708, it would appear that the law of the domicile of the injured person ought to rule. Cf. Stobbe, § 33, note 34. " Judgment of the Appeal Court at the Hague, 19th March 1878 (J. xi. p. 211). ^ E.g. Eccius-Forster, § 11, note 36 ; Foote, p. 481. The case, however, cited by the latter of damage to a submarine cable proves nothing, for the injury was done within the three-mile limit which is held to belong to the territory, and the lex fori was therefore identical with the lex loci delicti commissi. [Submarine Telegraph Co. v. Dickson, 1864, 15 C.B. N.S. 759.] 16 Cf. judgment of the Appeal Court in England quoted by Westlake, Rev. x. p. 541. [The Moxham, 1876, L. R. 1, P. D. p. 107.] 1' See judgment of the German Imp. Ct. (ii). of 19th Jan. 1878 (Entsch. xxiii. p. 174), in a matter of this kind. The court laid down that a foreign building contractor had subjected himself to the liability imposed by the law of the place in which the building was proceeding. 640 bar's international law. {note W sitce which would then come into play.'^s On the other hand, in such cases as these we cannot refuse to give a certain amount of weight to the lex fori. If the lex fori should be such as to make the judge who is dealing with the case think that it would be altogether unreasonable to fix liability on the defender/^ he could not well find him liable even according to the lex loci actus. To this extent, in accordance with what we have already (p. 96) said, the theory of the so-called coercifcive law is, no doubt, sound. NOTE W ON §§ 286, 287. OBLIGATIONS ex delicto. [The law of England is as it is stated in note 11, and the author, in the concluding sentences of the immediately preceding paragraph, reaches very nearly the same position. The law of Scotland apparently coincides with that of England, but there are not many illustrations of it in the books, so far as civil liability is concerned. In the case of M'Larty against Steele, however (1881, Ct. of Sess. Eeps. 4th ser. viii. p. 435), the court held that, in an action of damages by one Scotsman against another for slander uttered in Penang and Singapore, it was not necessary for the defender to aver or prove any special damage suffered, although by the law of Burmah that would have been necessary. But it would seem that this decision was not intended to touch the general doctrine, for it was said that the question decided was merely one as to the evidence by which injury might be shown to have been done to the pursuer, and that, although by the foreign law redress could not be given without proof of special damage, that did not import that by that law verbal slander was lawful. In the case of Horn v. N. B. Ey. Co. 1878 (Ct. of Sess. Eeps. 4th ser. V. p. 1055), a person sued a railway company for damages in respect of the death of his son. The company sued was Scots, but the accident happened while the deceased, upon a through ticket, was travelling in England. In defence it was pleaded that the law of England must rule the liability, and that as it, unlike the law of Scotland, gives no remedy by way of solatium, the claim must fail. The court, without very distinctly pronouncing whether the basis of the action was contract or delict, held that the question stated above was a question of the remedy rather than of the right, and must be 18 By a judgment of the App. Ct. at Berlin of 15th Aug. 1843 (Entsch. ix. p. 381), in an action de paiiperie, the law of the place wheie the damage was done, not that of the domicile of the person sued. It is to be noticed that in the case on hand the action was raised at the domicile of the defender, and that the law of the place where the damage was done was unfavourable to the defender. Koch, in his commentary on § 34 of the introduction to the Prussian A. L. R., and Bornemann, i. p. 66, express themselves to the same effect. In Massa- chusetts the owner of a dog is liable for double the amount of any damage that may be done by his dog. A dog, belonging to a person domiciled there, escaped and bit a man in New Hamp- shire. It was held that the law of Massachusetts had no application. Wharton, § 478, note. Dudley-Field, § 619, agrees with this. 1' A judge in a territory where the common Roman law prevails might take this view in certain cases where § 1384 of the Code Civil imposes liability, at least in the extensions of that § which one finds in practice. NOTE W~\ OBLIGATIONS EX DELICTO. 64 1 determined by the lex fori. It is proper to notice that an application of the law of the place of contract, viz. Scotland, would have given the same result, and would, it is thought, have been more in agreement with the authorities. Lord Gifford seems inclined to put the judgment on that ground. It has, however, been held in a recent case, Bosses v. Thakor Sahib of Gondal, 1891, Ct. of Sess. Eeps. 4th ser. xix. p. 31, that a person who sues for damages in respect of an act done abroad, must show that that act is, by the law of the country where it is done, a wrong carrying with it a claim of damages in reparation, before a claim can be allowed in Scotland. The lex fori will not rule such a question, but the lex loci actus. Savigny's authority was considered in this case and deliberately rejected. It did not, however, raise the question whether the lex fori must concur in holding the act to be a wrong before a remedy would be given. In the case of Waygood & Co. v. Bennie (1885, Ct. of Sess. Eeps. 4th ser. xii. 651), it was recognised that a court has jurisdiction to prevent a wrong being done to its own subjects by the circulation of printed matter (a printed trade-circular) within its own territory, but sent from a foreign country. On the question whether the place where the act was done, or where its results came to light, is to be regarded in such matters, there is no body of authority in Scotland in civil matters. As regards criminal responsibility, 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 Bradbury, 1872, 2 Couper, 311 ; Witherington, 1881, Ct. of Sess. Eeps. 4th ser. viii. (J.C.) p. 41. 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 fadi alleged constituting no criminal offence in England, by the law of which country the prisoners in both cases claimed that they should be tried. 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, 1881, Ct. of Sess. Eeps. 4th ser. viii. (J.C.) 28. In England it is determined by the cases of the Queen v. Keyn (1876, L. E. 2 Ex. D. 63) and re Smith (1876, L. E. 1 P. D. 300), that in the case of offences or torts, committed by means of the collision of one ship with another, it is not sufficient to give the English court jurisdiction that the 2 s 642 bar's INTERNATJONAL LAW. [§ 288 ship suffiering 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 completed, but in what place the actor was.] Obligations quasi ex contractu. § 288. Although most authors treat quasi contracts in the same way as delicts and quasi delicts, Laurent (viii. § 1) 2" sets up a different rule for the treatment of quasi contracts. He proposes to- treat them more after the analogy of real contracts, because he thinks that the obligation quad ex contractu rests upon the will of the parties, as that is presumed to be by the law, whereas the obligation ex delicto operates against the will of the parties. Thus the law of the place where the act is done is only to decide, if the parties are of different nationalities, while the personal law gives the rule, if both parties belong to the same nationality. This argument goes too far. As the authors of the new draft of a code for Belgium notice, it is not applicable to the obligation quasi ex contractu, which arises by the payment to any one of an indebitum, and again, with the help of presumptions as to the intention of parties, one can prove every- thing or nothing in private international law. Again, to determine the application of the law, according as the persons concerned belong to the same or to different nationalities, will by no means in every case satisfy men's sentiments of justice. At the same time, we must not overlook the fact that there is something sound at the root of Laurent's theory. If the law treats an obligation, which arises directly ex lege, and is not dependent upon the intention of any one for its existence, in spite of that as a quasi contract, and not as a delict, that is an indication, in so far as private inter- national law is concerned, that it may be that, instead of the place in which the obligation arose, some other place, possibly the domicile of the parties, should rule. Such an obligation, which, to a certain extent, is to be treated on the analogy of a contract right, may, in this matter, be treated as if it really were such a right.^^ We may thus under certain circumstances disregard the place of the actual factum from which the obligation springs, holding it to be a mere unimportant accident, substan- ^ See, too, his Sketch of a Code, p. 109, § 7 : " Les quasi contrats sont rigis par la loi personelle des parties si elles sont de la mSme nationality. Les obligations qui resultent de Tautoriti seule de, la loi sont regies par la loi personelle de celui dans I'intirit duquel sont itablis les administrateurs Ugaux." "We have already noticed that Miihlenbruch proposes to regulate obligations ex lege generally by the law of the domicile of the person who is put under obligation. This sharpwitted commentator on the Pandects must have observed that the common theory, by which the lex loci actus is applied exclusively, often leads to absurd results. But he has pronounced too decidedly and too generally on the opposite side. 2^ The idea which Brocher (ii. p. 140) takes as regulative of quasi contracts — viz. that the law in such cases takes upon itself a local duty of protection, e.g. to prevent foreigners from mixing themselves up with the affairs of the proprietor against whom the claim is made, rests upon this foundation. We hold the seat of the relations with which the law is to deal — and Savigny's expression is apt enough for this case — to be determined by some other consid- eration than the purely material fact of the act taking place at some particular spot. § 2^9] OBLIGATIONS QUASI EX CONTRACTU. 643 tially for the same reasons as frequently induce us to regard the place where a true contract is concluded— apart from the application of the rule " locus regit actum, " in matters of form— as immaterial. In this way it may often be that, if both parties belong to the same State, the law of this State will rule, although we need not, as Laurent does, deduce from this a hard and fast rule. If 22 A and B belong to the same State and know each other to be citizens of the same State X, and A pays B an indehitum, while they are travelling together in State Y, it would not be equitable to test the obligation to repay the indebitum by the law of State Y, but rather by the law which prevails in the country in which both parties have their home.^ Again, in the case of negotiomm gestio without authority, which is not confined to one State, as may very well be the case, it would be absurd to apply a different law to each of the acts of this gestio which may stand in close connection one with another. In such cases, as Laurent, too, points out, the application of the law of the parties' domicile may very often be proper, because negotiorum gestio in fact stands in close connection with mandate. But if a man takes possession of a deserted house or an abandoned article of any kind, without knowing who the owner is, it would, on the other hand, be absurd to have regard to the parties' personal law, even if they should both belong to the same State. Liability of Thikd Parties. Final Observations. § 289. In any case, however, an obligation quasi ex contractu in accor- dance with the lex loci actus, can only attach to a person who is subject to that law, be he so subject by reason of residence within its territory, or because that law is his personal law. Thus a negotiorum gestor by his actings may bind himself according to the rules of the lex loci actus, whereas it may well be that the law of the domicile of the principal will be the only rule for determining what is all that is necessary to found the Actio negotiorum gestorum contraria. Accordingly the decision of the Court at Celle on 28th Nov. 1871, in a very interesting matter, was in our opinion entirely sound. ^* 22 Kev. xviii. p. 483. ^ Laurent (viii. p. 11) would treat the receipt of an indebitum, where there is mala fides, as a delict, and would accordingly deal with it in quite another way. But mala fides can very often not be proved, and accordingly a treatment so radically different, according as the receipt is in bona fide or in mala fide, is unpractical. The German Imp. Ct. (iii.) on the 14th June 1887 (Entsch. xxii. p. 296), in the case of a condictio on the liead of recompense, held the law of the •domicile of the person, who was said to have benefited, as regulative. This was no doubt in respect of § 705 of the Saxon Code, which makes the domicile of the obligant the place for the performance of the obligation, in default of any provision to the contrary or of any distinct implication from the nature of thing to be done. Seuffert, Comm. i. p. 256, says : " The law of the place where the thing was given will rule a claim for its return, but, when the question is raised whether what was given was an indebitum, or was given without any legal right to demand it, regard must be had to the law which regulates the relation, which gave occasion to the payment." See, too, Foelix, i. p. 239, and, on the necessity of taking two systems of Jaw into account in some cases, see Brocher, ii. p. 142. <" Seuffert, xxvi. §217. 644 bar's international law. [§ iJ89 On the transference, extinction, and prescription of claims founded originally on delicts '^ or on qxiMsi contracts, we have nothing special to say. We have already shown that the obligation of one who has been com- pelled to pay aliment to the mother of an illegitimate child cannot be called an obligation ex delicto ; whereas, on the other hand, the obligation to make payment to one who has been seduced, by way of compensation for the loss of a respectable marriage, has the character of a true obligation ex delicto, and is therefore subject to the lex loci actus}^ ^^ Judgment of the C. de Bruxelles, 7th April 1880 (given by Dubois, Eev. xiii. p. 66) : in Belgium a Belgian cannot be sued in a civil action on the ground of a delict committed abroad, if the action is prescribed by the lex loci actus. See supra, § 278. '^' See "Wachter, ii. p. 396 ; Stobbe, § 33, note 34 ; Beseler, § 39, note 28 ; Sup. Ct. at Berlin, 27th September 1875 (Seuffert, xxi. § 196); Laurent, viii. § 16, with special reference to the distinction taken in the text and supra, § 205. 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. i. § 36), .although it occurs most frequently with them. As regards the law of France, in particular, we may say again that it does not by any means give the maxim " la recherche de la patemiU est interdite " the same absolute force as German authors attribute to it. See Laurent ut cit. Of course, all those who apply the lex fori exclusively in all cases of delict, do so here alsoi. E.g. Schmid, p. 76. See, on the contrary, the practice in Prussia. Eccius-Forster, § 11 ; note 35. ]£idbtb Boof;. COMMEECIAL LAW. I. GENEEAL PEINCIPLES. A. COMMERCIAL AFFAIRS. CHARACTER OF A PERSON AS A TRADER. § 290. 1st, The question whether a legal problem is to be treated as a commercial matter, or as a matter belonging to ordinary municipal law, may arise in various aspects. (a.) The law may prescribe that commercial matters shall be disposed of according to rules that are in substance different from the ordinary rules of municipal law. To that extent the answer to the question, whether a transaction is a commercial transaction, and must therefore be disposed of according to the provisions of a commercial code or not, depends upon the question to what territorial law the transaction generally is to be referred. For commercial law is simply an aggregate of legal rules belonging to this territorial law, and of course the law that regulates the matter must say which of its own rules is to be applied to the case. The presumption, which some systems of law attach to certain kinds of transactions, that they belong to the sphere of commercial law (cf. e.g. German Comm. Code, § 274), must be recognised by foreign tribunals in accordance with the deliverance of the leoc loci obligationis upon it. (b.) The law may provide that commercial matters shall be dealt with by particular courts. The definition of a commercial matter must be taken from the lex fori. If the courts of a State are competent to entertain a process, it is the law of this State that must settle all questions of competency between this court and that court; the subsumption of an action under the head of a commercial action is, in so far as matters of process are concerned, simply a deliverance of this kind in an abbreviated form.^ (c.) The law may provide that in commercial matters certain particular kinds of proof shall be recognised, which would not be admitted, if the ' Asser-Rivier, §§ 91, 92, agrees with the results of {a) and (6). 645 646 bar's international law. [§ 290 subject matter of the action were not a commercial matter. Thus, e.g. by the 109th article of the French Commercial Code, proof by witnesses is admitted to a larger extent in commercial sales than in the case of other contracts. Here the question may be raised, does the law, by which the substance of the contract is ruled, determine this question, or does the l(x foi'i ? This question must be answered when we come to deal with the law of process. As regards question {a) it is possible in other respects, as we have shown before, that a legal transaction should for some purposes require to be dealt with by the law of place A, and for other purposes by the law of place B. An instance of that is the matter of the rate of interest to be allowed. If, then, an obligation, which has arisen in A, must be tested by the law of B, in so far as questions of interest are concerned, and the law of B allows a higher rate of interest in commercial transactions than in other transactions, it is a simple application of the proposition stated under head (a) to hold that the question, whether the creditor can claim the higher interest attached to a commercial transaction, is a question that must be dealt with by the law of B. Secondly, The question whether a person is a merchant or trader in the eye of the law, may be a question prejudicial,^ (a.) For the decision of the further question, whether any particular transaction is or is not a commercial matter, supposing the law to say that a transaction is only to be regarded as a commercial transaction if it is arranged by a merchant or trader. In that event the case is precisely the same as if the law, in place of using the shorthand expression " merchant " or " trader," had repeated in detail its description of the persons, whose participation in any contract makes it a commercial contract. The law which regulates the transaction itself must therefore rule in this matter, and the law of the domicile of the person has nothing to say in the matter.^ (&.) It may also be a prejudicial question with reference to certain obligations that have to be performed in the public interest: e.g. the obligation to keep business books, to enroll oneself as a merchant in some commercial register ; or to ensure certain special privileges, such as the special rights of a trading firm. In respect that such obligations can only be discharged at the seat of the trading establishment, and such privileges are simply an appurtenance of that trading establishment, the law of the ^ This comes out specially clearly in the provision of § 272 of the German Code of Commerce ad fin. When it is said that the transactions described in § 272 are to be regarded as commercial transactions, even "where they are done as an isolated matter by one who is a merchant in the course of his business, which, as a rule, is directed to different objects," it is plain that by the term "merchant" we are to understand a merchant in the sense of that German Code, and not a merchant according to the definition of some other code. 3 Asser-Kivier, § 93, do not take a sufficiently accurate view of the matter, for they simply make the law of the place, in which the person a fait I'acte ou exerci Vindustrie dont il s'agit, decisive. § 291] PRINCIPAL AND AGENT. 647 domicile or of the trading establishment, as the case may be, is the only law that can be applied. If the law makes the character of merchant dependent on majority or a oenia cetatis (the emancipation of the French law), this fact is a fact to be determined exclusively by the personal law.* The same law, i.e. the personal law, must decide whether a wife needs the consent of her husband before she can become a trader,^ and whether this consent can be obtained by judicial procedure, if the husband himself unreasonably refuses to give it, and whether a consent, once given, can be recalled. For the matter in question in all such cases is a true incapacity of acting, which is prescribed in the case of a wife in the interest of married life in general, but may be waived if the husband consents. The consequences of a consent are, of course, excepting the legality of a recall, to be determined by the law of the place in which the trading establishment or firm is carried on. For it is there that the whole legal relation, for the constitution of which this consent is one element, is to be realised, and the boTia fides of commercial intercourse demands that the matter shall be so treated. We shall deal with the questions of the weight of business books as evidence, and of the obligation to exhibit them, when we deal with the law of process. As to the law of the firm name, see supra, § 98, and infra on the law of trademark. B. MANAGERS AND ASSISTANTS AND TRADING PARTNERSHIPS. § 291. The legal questions, which arise from the employment of managers or assistants in commercial law, are to be determined on the same principles as regulate agency and mandate. In this way the person who holds an authority or procuration will represent the principal with all the powers with which the law of the place, in which the principal is domiciled, or in which his trading establish- ment is situated, as the case may be, invests the agent.^ But this person holding this authority has these powers only. Although the law of the country, in which the representative of a foreign trading house makes contracts, should invest such representation in general with more extensive powers, that is no reason for saying that the bona fides of trade requires the application of the lex loci actus to determine the extent of the authority of the foreign representative. In the case of a foreign minor, it may be that ■» In such cases it is nationality tliat must rule. For here the question is the fundamental question, whether a man is a merchant ; if this is once established, then, in accordance with what we have said mpra, § 252, the lex domicilii and not the law of nationality is the law that is to be considered with a view to the determination of the particular problems of commer- cial law in so far as they touch this person. •■* E.g. a wife separated from her husband, her personal law not admitting true divorce. 1 Imperial Court of Commerce, 4th Dec. 1872 (Seuffert, xxviii. § 48), the place where the authority is given will rule. See, too, Asser-Rivier, § 97). 648 bar's international law. L§ 291 his character as a foreigner is not visible, and that there is, therefore, no occasion for enquiring what his personal law is, and the bargain itself may not by reason of its subject-matter give rise to any such enquiry. But a transaction with a foreign commercial agent, who gives himself out as such, always gives rise, to a sufficient extent, to the suspicion that there may be some divergence between his law and that of the country in which he is. Again, on the other hand, the principal has no means at all of protecting himself, if the commercial agent can extend his powers at pleasure by crossing the frontier just as he chooses. Further, what is to be the result, if the various territories concerned lay down different conditions for the competency of placing restrictions upon such authority, or of recalling it ? The provisions of the German Commercial Code, and nowadays of the Swiss Code also, as to the necessity of registering procurations and alterations upon them in the commercial register, afford an excellent illustration of the soundness of these propositions. It is simply impossible that foreign firms and foreign establishments should make such entries in the German Empire or in Switzerland. 2nd, The same principles must of course regulate the liability of the partners in a commercial partnership.^ In fact, this liability may be traced to the recognition of one partner as an authorised agent of the other partners, or to the fact that a third person as authorised agent performs his office for several persons simultaneously ; and in respect that some kinds of trading partnerships are invested with something of the character of juridical persons — a subject which we are not to investigate at present — the same result may be obtained on principles already laid down (i. § 1.39). That foreigners, except in the case of uncivilised countries, noticed in note 2 ad, fin., cannot set up a trading establishment to be carried on in another country except in the forms recognised by that country,^ needs hardly to be said. The rule " lociis regit actum" acquires a coercitive character from the fact that in commercial matters the country where the business is carried on takes the place which the personal law holds in other depart- ments of law, except in so far as personal capacity to act is concerned. If a person enters a joint-stock company, as one of the original share- holders or holders of stock, he subjects himself to the law of the place where the company has its seat, or to any proviso on this subject, which 2 See judgment of Appeal Court at Celle, 31st May 1876 (Seuffert, xxxi. § 303). The liability of the partner of a trading establishment in Peru, who lives in Prussia, is to be primarily determined by the law of Peru. See, too, Imperial Court of Commerce 17th February 1871 (Seuffert, xxvi. § 101). Imperial Court (i.) 5th November 188'4(Bolze, Praxis, i. No. 41, p. 10), any question as to the necessity of suing the company is to be settled by the law of the seat of the company. AspecialdiflSculty may arise ifthe company is established in a country {e.g. in the East) in which the local law does not bind Europeans, while the partners are citizens of various European States. A case of this kind is determined by the judgment of the Imperial Court of 2nd July 1884, +0 the effect that for a commercial partnership the law of the country in which it proposes to carry on its business may furnish the rule. ^ Judgment of tribunal of commerce at Marseille^, 7th February 1878 (J. v. p. 381). § 292] NEGOTIABLE NOTES. 649 the conditions of the company may lay down, to a certain extent.* He does so, e.g. in so far as his obligation for further contributions is concerned, and he submits himself to special forms of citation in any process connected with the liquidation of the company, or the enforcement of calls.* But there is no good ground for maintaining that the transferee from an original shareholder is bound in every case, in a question with that original shareholder, to make good in his room payments that fall due upon the trans- ference, although the law of the seat of the company may provide to that effect.® In such cases it is rather the law which regulates the transference itself that must rule, unless the transferee is referred to some other law, by a note upon his share certificate.'' The law which prevails at the seat of the company will be applied to the relations of the shareholders inter se. It will not be the law recognised at the place where any piece of business, e.g. the conduct of a mine carried on on account of the company, has its seat (see Imp. Ct. (i.) 15th November 1885, in Bolze, Praads, ii. § 31, p. 8). II. NEGOTIABLE NOTES OE BONDS PAYABLE TO BEAEER General Principles. § 292. Notes or bonds payable to bearer present substantial difficulties in matters of private international law. It will not, however, be necessary to go very deeply into the highly debatable theory of the construction of the obligations embodied in written documents. This much we must hold to be beyond all doubt. The debtor, who issues the note, will become debtor to the person who acquires right in the note with the intention of becoming creditor.^ The debtor, too, will, may, and must, without further enquiry, accept any one who is actually in possession of the note as invested with these rights, putting out of view special cases in which an exception must be made, e.g. the case of a stoppage of payment duly intimated or judicially laid on, where notes of the kind have been stolen or gone amissing. It is self-evident that no law but the law of the debtor's domicile can regulate this obligation of the debtor ^ in itself. To escape this the debtor would require, by issuing the notes in another place and * Of course, that is still more true for any rights which the shareholder may have against the company, and this is as true of transferees as of original shareholders. C. de Paris, 2nd January 1875 (J. iii. p. 105). See, too J. ii. p. 440. •'' [Copin«. Adamson, 1875, L.R. 1, Ex. D. 17.] » Belgian Statute of 18th May 1875, art. 42. ^ Trib. Comm. de la Seine, 18th June 1881 (J. ix. p. 527), affirmed this absolutely. If the only question is one as to whether calls are or are not due, then the law of the company is absolutely decisive. 1 Some one may get possession with the intention of acquiring right in the note and the claim it represents for some one else. f '■^ Accordingly, as a rule, the law of the debtor's domicile will decide the question, whether he can issue notes payable to bearer, of particular descriptions, without the express permission of the Government. 6S0 BA/i'S INTERNATIONAL LAW. [§ 293 promising to pay them at that other place, to have thus submitted his liability by anticipation to some other law. But the debtor has made the fate of his liability, in so far as the person of his creditor is concerned, dependent on the right which any unknown third party may acquire in the note, which is a corporeal moveable. This right is subject to the lex rei sitce, i.e. more exactly to the law of the place where the note happens to be at the time of the transaction by which it is transferred.* If, then, a holder is compelled, be it by the law and by the courts of the country of his domicile or residence, to make over his right in the note to some one else, the debtor must recognise this right the moment there is a right in the note, i.e. a right according to the law of the place where the delivery of the note, following on the judgment, took place. All that preceded the possession of the note by this person, before any claim was made against the debtor, is no concern of his, or at least only concerns him in so far as the law, by which the obligation of the debtor himself is ruled, i.e. generally the lex domicilii of the debtor, requires some investigation to be made.* The result is that the legislature may facilitate or impede the vindication of all notes circulating in its territory. But, in so far as foreign notes, notes issued in another territory, are concerned, the effect of such provisions may, on the one hand, cease ^ so soon as the note is brought outside the State in which they are enacted, a result arising from the principles of the law of things. On the other hand, no law except that which regulates the liability of the debtor can say to what person he shall or may pay. The Feench Statute of 15th June 1872. § 293. The questions just discussed have acquired special importance in France, and, indirectly, in all those countries that are closely connected 5 The necessity of obtaining the license of the sovereign power for notes that are to be put into circulation will in doubt be restricted to notes which have been issued within the country, and will not extend to notes issued beyond it, although by citizens belonging to it. Imp. Ct! of Comm. (iii.) 8th October 1874 (Entsch. xii. § 101). * This is in consonance with the principles already laid down for assignations. The debtor is discharged if he pays to the person who is authorised, by the law that regulates the debt, to receive payment. In the case of notes payable to bearer, no exception to this can be recognised: The debtor will also have the advantage, which may also indirectly be an advantage to the creditor, of not being required to investigate the title of the holder who claims to be his creditor any further than the lex domidUi of the debtor requires that to be done, e.g. where payment of such notes is by some exceptional measure stopped for a time. = It will, of course, be of importance to see what is the precise import of the lethal provisions of the territory into which the note has passed. If the law there recognised gives^ a direct protection to the holder, it is of no consequence under what circumstances the holder may have acquired possession in some other territory. If it protects the acquisition, its rules wiU not go to protect the holder, but the person who acquires the documents in this territory See supra, %2Z6ai fin. ^' °^* § 293] FRENCH LAW AS TO BEARER BONDS. 651 with transactions on the French Exchange, since the French statute of 15th June 1872 anent Titres au porteur.^ That statute contains :— First, Provisions as to payments which a person who has lost notes or bonds payable to bearer may, notwithstanding that loss, demand under certain conditions from the establishment that issued them. All are agreed that these provisions affect none but French debtors. Second, Provisions to the effect that notes or bonds payable to bearer, the loss of which has been advertised in a particular way, in a sheet appointed for that purpose, and published by the committee of the Exchange at Paris, cannot thereafter be validly transferred as against the former holder who makes the advertisement. In other words, these are provisions which give the person who has lost the documents a right to vindicate them against all holders who acquire them subsequently to this advertisement, and cannot connect themselves with any holder who held them before this advertisement. The extent to which these provisions should be recognised in international relations is much debated. '^ One view is that the law should be restricted altogether to French scrip.* This theory, however, is very scantily supported ; practice, and in particular the opinion of the Court of Cassation, are against it. The conclusion that, because one part of the enactment is, as we have seen, applicable only to French documents of debt, so the other part also should be applied exclusively to the same class of documents, is erroneous. The course of the law has, however, gradually extended the claim of vindication given by French law beyond the case in which foreign scrip has been stolen in France and negotiated there. It has upheld that claim where this latter condition was absent, and where the scrip had become the subject of commercial dealings in a foreign country among foreigners. It is, of course, a condition of the application of the law of France, that the action should be capable of being raised as a real action cum effeetu in France. It must therefore be directed against a person who is domiciled there, and, as it would seem according to some decisions and the theory of Vincent, which I shall again notice, the scrip must be within French territory at the time when the claim is made. The reasons on which this doctrine, which, as Clunet trenchantly and truly says, leads us in the end to a " statut universal" i.e. a kind of universal supremacy of the law of France, are extremely feeble. On the one hand, it is maintained that we have here to do with a provision of protective police, which should on that account be applied indiscriminately to all dealers in scrip within France. On the other hand, it is further asserted that all the statute does is to set up a kind of presumption of mala fides against any one who acquires such * Reported and criticised by Mittermaier in Goldschmidt and Laband's Zeitschrift fur das gesennute HandelsrecM, xix. p. 153. 7 See Weiss, p.' 809. 8 Lyon-Caen et L. Renault, Droit Commercial, i. p. 198 ; Trib. Seine, 1878 (J. v. p. 613). To the opposite effect, e.g. Bnchfere (J. vii. p. 260) ; Weiss, ut cit. C. de Cass. 13th February 1884 (J. xi. p. 75). 652 BAK'S INTEKNATIONAL LAW. [§ 293 scrip after notice has been given in France, in the way we have mentioned, that it has been lost. But it is impossible that the former argument should avail to upset all other rules of private international law in commercial matters, and enable us to assert that the measures adopted in France can impress upon such scrip the character indelehilis of non- negotiability, even where it afterwards is found in a foreign country. The second argument implies the absolute claim — a most unjust one — that the advertisements of the sheet published by the French Exchange should be read all the world over by every man who buys such notes. This demand is all the more inequitable that the regulations for dealing in stocks in France, on which the French law proceeds, are not recognised by the whole world. We may suggest the following as the sound theory. The law is undoubtedly to be applied to scrip stolen in France, although issued abroad. The non-negotiability of such scrip, however, will operate so long only as it actually is within the territory of France, in any case only so long as no transference of it takes place in a foreign country, the effects of which transference operate in accordance with the law of that foreign country." If this transference gives the person who acquires the note an unassailable right as against the person from whom it has been stolen, a Frenchman who comes after him in the chain of transmissions must, of course, have the same unassailable right. It seems, therefore, to be specially unsound to apply the law, irrespective of any intermediate transmissions in a foreign country, to a subsequent French holder.^" Even in the case of French scrip or notes, the French law could not exercise auy extensive effect in international intercourse,^^ without thereby damaging the character of air such paper. For their distinctive character lies in the fact that, whatever may be the accidents attendant on the property or the possessiou of them, the claim of debt will always be instructed by them. Of course, the answer will be made that the whole object of the French law will fail of attainment, at least in great measure, since persons who have stolen or embezzled such documents, will easily ' Similarly Buchere, ul cit. He speaks incorrectly of the application of the rule " loeus regit actum" to this matter: now the law of things is a sphere in which this rule is not applicable. " But Buchere, ut cit. holds this view, particularly on the ground thatthe French holdermay be charged with carelessness. But if a man buys from one who is the true owner, as the foreign holder in the case supposed is, there is no carelessness in the transaction. " The judgment of the Trib. Civ. Seine of 8th August 1885 (J. xii. p. 681) is bold, but it is unsound, and really unfounded. It says, " Les titres frmicais, en letir qioalite de droits incorporels, forment une eatigorie a part de meubles ; Uur siege est veritablement en France, puisque c'est eiicepays qu'est dilivre le capital cede dotd ils sont la representation fidaciaire." That is a flat contradiction of the true character of notes or bonds payable to bearer. That shows how much can be proved by Savigny's theory of the "seat of the legal relation." According to it, the subsetjuent acquisition abroad will not avail against the French law of vindication. To the contrary, and soundly decided, is the judgment of the C. de Paris, 29th April 1875 (J. iii. p. 363). See, too, Vincent (J. xv. p. 346). § -94] FRENCH LAW AS TO BEARER BONDS. 653 manage by some means to convey them into a foreign country.^^ That may be quite true, but it is not sufficient to justify an application of the law of France to an extent far beyond what is authorised by any precedent. We shall be all the less warranted in proceeding upon it, since the acceptance of notes or bonds of this ;nature beyond French territory would be seriously prejudiced, unless suf&cient provision were made for adver- tising the loss of them beyond French territory as well as in France. It is, besides, quite conceivable that the vast development of the traffic in such negotiable securities makes it impossible for any single State to hit upon any protective measures which shall be of real efficacy even within its own territory, and that the only means for devising adequate security is by international agreement, the difficulties of which cannot be over- looked. In spite of all, however, the French law has in point of fact an influence even in other countries which is not to be underestimated, just as private advertisements of the loss of such documents may have. In such circumstances, there may be ground for suspicions of mala fides in the holder, even where the negotiation has taken place in a foreign territory. But if the law of France should attempt to set itself up still further in the direction which we have indicated — a 'direction which seems to us to be erroneous, and to many eminent French jurists highly debatable — the result may perhaps be to produce undesirable effects upon the business of the French Exchange. At the same time, we can see what important consequences a general agreement for the execution of foreign judgment might have, since the law of a single country shows itself to be so desirous of claiming extra-territorial effect for its provisions. Taking Notes out of Circulation. Judicial Proceduee for this Purpose. § 294. 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. '^ Yincent (J. xiii. pp. 676-683, especially p. 679) defends this propcsition, which undoubtedly raises this hardship or difficulty, viz. that the ruling law should be the law of the place where the holder is when the action is raised. The interinediaite transmissions of the scrip abroad might then simply be ignored, which would result in giving the former French holder an advantage. Vincent's opinion is that this proposition is in conformity with the principles of private international law, and appeals to the operation of the rule "possession. vaut litre." That rule, however, on the contrary, protects a new acquisition in conformity with the law of the territory into which the thing has passed. It never recalls any older right to life, even although that older right may at one time have existed in the very same territory. See the rule- recognised in the more modern Belgian bill (§ 216, p. 499, note), and Durand, p. 411. Vincent brings " ordre public" into the field, by which any conclusion you please can be reached. In the continuation of Vincent's paper in the Journal (xv. p. 343), it is. still more evident that the whole theory is based upon an eironeous conception of the rules. that regulate the law of things in its international bearings. 654 BAu's INTERN4T10NAL LAW. [§ 294 or by the process of having it noted by some Government officer.^* Such a process only binds the debtor in so far as his lex domidlii provides that it sliall do so." On the other hand, in so far as a claim for recovery of the note is to be ruled by the law of the land in which the operation of .noting has taken place, the legal import of this operation will determine the relations of the pursuer and defender in any such action for recovery. Any noting by which the scrip is again put into circulation, i.e. again made negotiable, is, as regards its form and its effect, to be ruled by the law of the place where this noting takes place. Any such operation plainly makes the position of the debtor more favourable, for it relieves him from all inquiry into the title of the bearer. There is, therefore, no reason for referring to the lex domicilii of the debtor, a result which is in accordance with the rules that prevail in the law of things.^^ The debtor is always free from any claim at the instance of the holder, if he is free according to the law which originally regulates the performance of the contract. But he cannot be discharged by any other law. From this it follows 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 ^* '^ Of. e.g. Preuss. Allgem. Lmuir. i. 15, §§ 47 et seq.; Prussian Statute of 16th June 1835 and 4th May 1840, and the Prussian Ordinance for the newly acquired provinces on 16th August 1867, which goes very far in this direction : see, too, Stobbe, D. Privatr. iii. § 180, No. 9. " Judgment of the Imp. Ct. (ii.) of 19th March 1881 (Entsoh. iv. § 41, p. 139). ' ' Negotiable notes acquire their peculiar character from the intention of the person who issues them, or from the local law which 'gives legal force to this intention ; accordingly, the inference is obvious that the same local law must govern the conditions under which their peculiar character shall continue to subsist, or, on the other hand, be destroyed." ^ The judgment cited in the last note does not by any means import an admission of the lex loci actus, and the circumstances of the case put that entirely out of view. We must, however, deny any more extensive operation to noting for the purpose of taking such documents out of the circle. We might be inclined to hold, if Stobbe's theory (cited in note 22) were to be adopted, that it required no special sanction by the legislature to take a note out of the circle. But it is not correct, however, to say that no one's interests are endangered by the operation. In the first place, these notings may be overlooked by subsequent holders, and, in the second place, they touch the interest of the original obligant very seriously. They lay upon him the burden of testing the title of the holder, which is sometimes a difficult task, and they may interfere with the circulation of the scrip in the market. The opposite theory, adopted by Beseler (§ 86, note 84, where the other theories too are discussed) and others, is therefore to be approved, although the Imp. Ct. in the judgments cited in the last note declared the right to take notes out of the circle to be a doctrine of common law, a deliverance which was certainly unsound. IS The German Civilprozessordn. § 839, provides: "The courts of the country which the document itself indicates as the place of performance, are competent for the declaratory process. If the document gives no such indication, then the court to which the person who issues the document is generally subject is competent. ... If the claim upon which the document proceeds is recorded in any register of real rights or securities, the court rei sitm is the only competent court." These provisions are not quite correct from an international point of view ; they are influenced by Savigny's erroneous theory of the place of performance. Foreign financial houses and foreign States, which set up in our country offices for payment of their obligations, certainly do not thereby intend to recognise that our courts have jurisdiction to declare these obligations invalid, and thus declare the debtors to be bound to issue new obligations. (See 0. de Paris, 31st Dec. 1877, J. v. p. 165, to the contrary : the objection taken to payment NOTE X'\ NEGOTIABLE INSTRUMENTS IN ENCLANS. 655 sanctioned 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 o| some obligation incumbent on him by the law of his domicile — 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 itself. See note 16 ad fin. NOTE X OK §§ 292-294. NEGOTIABLE INSTRUMENTS IN ENGLAND. [The question has arisen in the courts of England whether certain papers were or were not " negotiable instruments," so as to pass from hand to hand, and to confer on a lona fide holder a good title from the mere fact of possession in hona fide, without the necessity of a formal transfer or assignation. In the case on hand the bonds were Prussian bonds, which had been stolen from the plaintiff, the sheet of coupons remaining, however, in his possession, and had come into the possession of the defendants in lona fide. There appeared to be a conflict of evidence as to whether the bonds without the coupons were, even by Prussian law, negotiable, but the court assumed that they were. The decision was that, unless the documents were known to English law and English trade as negotiable, they could not be allowed to pass by mere delivery in England, and that as there was no evidence to show that the custom of English traders was to hold such bonds to be negotiable, the plaintiff must succeed, since the defendants had no good title. Lord Justice Bowen likens the character of negotiable documents to that of the currency of a country : the fact that being made, the validity of interdict must, in so far as regards Italian notes, be determined exclusively by the law of Italy, although the obligations themselves and tlieir coupons are paid through a French bank, and although it may be held to be competent for French debtors, although not for foreign debtors, to rely upon the law and the courts rei sitce as the only competent law and tribunals to determine their personal liability.) It may be, however, that the person who asks for a sentence of cancellation will have to observe some of the provisions of the law recognised at his domicile or place of business, as well as the rules of that law to which the foreign paper itself is subject, if he desires not to expose himself to claims which may be urged against him on the ground that he acquired the scrip at the former place. See Vogt in the Neue Archiv. des ffandelsrechts, by Vogt and Heinichen, i. p. 31 ; and the judgment of the Supreme Court of Appeal at Liibeok, reported there, of date 20th October 1856. 1' If, however, the document itself does not indicate any particular place of performance within the German Empire, and the debtor has no domicile within that empire, it is impossible, according to the statute for the regulation of procedure in Germany, that there should be any decree of cancellation there at all. This is at least the view which is adopted by the great majority of commentators. Of. Struckmann and Koch, Cimlprozessordn. on § 839, note 1. Seuffert, Comm. § 839, note 2. The Hannoverian ordinance of 28th January 1826, § 4, and the statutes of the Hannoverian Landeacreditanstalt, § 49 ad fm. promulgated by ordinance of 18th June 1842, proceed on the principle that tlae judex domicilii of the debtor is competent. The Hessian ordinance, too, of 18th Dec. 1823, 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). 656 bar's intehnational law. [§ 295 certain things, be they coins, cowries, or documents, are part of the currency of A, will not make them part of the currency of B. Picker v. London and County Banking Co; (1887, L,E. 18, Q.B.D. 515). Again, it was held that the validity of a transaction in sha^e certificates, the shares being shares of American railroads, but the transaction having taken place in England, must be ruled by the law of England, and unless the holder were validly in possession by that law he could have no claim to the certificates or right to them. If, however, he were validly in possession by that law, the import of the possession, the character of his right and its extent must be determined by the law of the document, i.e. American law. Williams v. Colonial Bank (1888, L.R. 38, Ch. D. 388).] III. FEEIGHT. Genebal Principles. Freedom of Contract. § 295. According to the theory which is most widely prevalent, and which in our opinion is the sound theory, a contract of carriage or freight by land, and on board vessels on inland waters, must be ruled by the law of the place where it is made,^ or more exactly by the law of the place in which the carrier's business is carried ou.^ It is this law, and not that of the place of performance (which on this important point is altogether set out of view in practice), that will regulate the obligation of the carrier for timeous delivery, and for damage or loss of the goods in transit, and his obligation to follow the directions of the person who sends the goods. It will also regulate the obligation of the sender to pay the freight, and to make compensation for anything in the con- dition or in the packing of the goods that is illegal or in breach of contract, and is thus productive of damage. On the other hand, the law of the place of delivery will determine the shape which the transference of the property to the consignee should take, and his obligation to pay freight, unless it should hold that he has already validly bound himself in accordance with the tenor of the bill of lading ; it will also determine whether there is to be implied any waiver on the part of the consignee of claims of damage for injury to the goods,^ and whether the carrier has any right of retention over the goods.* The same doctrine holds good of all conditions affecting ^ See in particular Wharton, § 471, and also note 8, infra; Brocher, ii. § 206 (p. 221). "^ Wharton calls attention to this. In the United States, agents of carrying companies canvass for contracts of carriage in States with which they have no connection. * C. de Nimes, 9th July 1881 (J. ix. p. 216) : "Art. 105 of the Code of Commerce is not applicable to goods, which are delivered to a transport agent from France to Russia." It was accordingly held that an estimate of damage in accordance with the law of Russia was sufficient to restrain the consignee from any further claim of damages. ^ See § 22 of the Convention intemaiionale stir le transport de marchandises par chemins de fer proposed at Berne in 1886 : " The operation of rights of retention is to be determined by the law of the country where delivery took place." § 295] GENERAL LAW OF FREIGHT. 6^J deli very ,5 in so far as these are either subject to* imperative laws or usages of the place of delivery, or canuot at least be disturbed without the con- sent of the consignee or special expense or trouble to the carrier which cannot in reason be imposed upon him. There are circumstances in which to a certain extent we may say, without drawing any exact line, that parties must be held to have submitted themselves to all the usages of the place of delivery. But the legal problems may present themselves in a complicated form, if the first carrier hands over the goods to another carrier for further carri- age, or is compelled to do so by force of circumstances, wliile the second carrier is .subject to a different law from that which bound the former. The general theory on this subject, which is in correspondence with the rules for inland carriage,® holds that each carrier in turn, by taking over the bill of lading and the goods themselves, makes himself a party to the contract of the first carrier, and takes over his obligations ; ^ on the other hand, the first carrier is responsible to the measure of his own contract for the dili- gence of all the carriers that are to come after him. The result, of course, is that the last carrier can be sued directly by the consigner and by the consignee, and for faults which are to be imputed not to himself, but to some one who comes before him in the chain. Thus the provisions of the contract concluded between the first carrier and the consigner, and the law applicable to that contract, rule at the same time the contract of the last carrier.^ But this simple state of legal relations is, in so far as practical consequences are concerned, as a general rule apparent only, at least in all questions connected with great carrying agencies, particularly railways. The carrier who is a party to the first contract, or to one of the earlier contracts, where there are several, may, by reason of the freedom of contract that belongs to him, stipulate that he becomes a party to the contract only on the conditions of his own law, i.e. the law that is recog- nised in the country where he carries on business, or in which his line of railway runs, or on the conditions of some special bargain which he tables. Then, if the original bill of lading, embodying the contract of carriage, contains such a stipulation, the result is that very various laws will as a " Brocher, ii. p. 222. " See German Comm. Code, § 401 ; Wharton, 473 ; Trib. Seine, 18th March 1875 (J. iii. p. 358). 7 See C. de Cass. 23rd February 1864 (J. i. p. 14, and again p. 310) for the proposition that on principle the law of the place where the contract is made, and not the law of the place of delivery, should rule. 8 See Eger, vol. ii. p. 47. Judgment of the Sup. Ct. at Berlin, 29th June 1869 (Striet- horst. Arch,. 75, p. 214, and Eger ut dt. Sup. Ct. of Comm. 17th March 1874 {Entsch. xiii. p. 317). The administration of the Eoyal Prussian Eastern Railway took over at the frontier station Eidtkuhnen goods addressed to the pursuer with a direct bill of lading from Diinaburg to Berlin, which had been badly loaded. By taking over the bill of lading, they were held to have taken up the obligations of the first carrier, the great Russian Railway Company. Judg- ment of the Belgian Ct. of Cass. 31st Jan. 1879 (J. viii. p. 72) ; Trib. Seine, 31st Dec. 1879, and C. de Paris in the same case, 15th Feb. 1881 (J. viii. p. 424) ; App. Ct. of New York, 16th Nov. 1880 (J. viii. p. 270). 2 T 658 BAJi'S. INTERNATIONAL LAW. [§ 296 matter of fact be applicable in the different territories through which the goods have to pass.* , TJnifoem International Code for Carriage on Eailways. ' The Convention at Berne in 1886. § 296. Cue result of the evils thus associated v?ith the law of carriage has been the Voluntary association and agreement of railway companies to regulate their through carriage on the same principles. Another result has been the project of setting up one international code of railway law for traffic between different countries. The association of German^" railway companies, established in 1846, had in 1879 an extent of upwards of 34,000 miles of railway conducted on the same principles as regards carriage, a common system of carriers' law. Again, in 1873, on the suggestion of Switzerland," an international congress met for the purpose of working out a common international code of carriers' law, while again in 1881, and lastly in 1886, more international congresses were held on this subject. It is probable that the scheme drawn up in 1886 will be adopted and sanc- tioned by statute in a majority of the States of Europe ; it is possible that all Continental States may so adopt it. We may quite properly pass over the provisions of this scheme.^^ It is a codification of the most generally recognised rules for railway traffic in the different States concerned, and an attempt to bring these rules into harmony. In countries in which these new rules may in time to come be recognised, there will no longer be any opportunity for the application of the principles of international law, just because the law of every State will be identical. This or that provision may, however, exercise some influence upon rules of private international law which are recognised independently of this new code, or upon the usages which the individual States adopt in s See Sup. Ct. of the Emp. (ii.) lltli Oct. 1876 {Bntsch. xxi. p. 57), and the judgments of various German courts cited by Eger ut supra, pp. 48, 49, Goldsohmidt's Zeitsehr. fur Sandelsr, xii. p. 597 ; see, too, the interesting report presented in July 1878 to the International Congress for the development of means of carriage. Paris 1878. ^'' On this subject, see the memorandum of the United German Railway Board upon the Bernese sketch for an international union on the subject of railway carriage, drawn- up at Salzburg in 1879, at the general meeting held there. The German Railway Boards had, no doubt, an easier task in establishing a common code, because German law, and afterwards the German Code of Commerce, allowed them larger freedom of contract than was sanctioned by French law. They were in a position to limit their responsibilities very substantially. The French lines felt themselves compelled to give np direct contracts of carriage beyond the French frontier, because their liability was more extensive, and could not be limited. " De Seigneux and Christ did much to effect this. See on the whole matter Eger, Die Mnfuhrung eines inUrnationalen Eisenbahn-Frachtrechts, 1878 ; v. Bulmeriuoq, Eev. x. p. 83, and Asser, p. 101 ; and now, too, the comprehensive exposition of Meili, 1887. C. D. Asser, junr., has written a detailed paper on the congresses at Berne : " Iniernationaal goederenver- voer langs spoorwegen, Gra/uenhage, 1887. ^^ For a complete version of the text, see Meili, p. 62, and Asser, p. 387. §297] J^^SPONSIBILJTY OF RAILWAY COMPANIES. ' 659 carrying out their theories of international law, particularly upon th6 usages which they adopt in matters of process. Private international law would not, however, lose all its importance in the law of carriage even if the Convention of Berne were generally adopted. That convention, in any case, only covers railway carriage; it does not touch carriage by water, and in many doubtful cases, which must inevitably occur, we shall perforce have recourse to general principles for assistance. Special Legal Questions. Eesponsibility of Kailway Companies beyond their contracts. § 297. "We desire, therefore, to call attention to the following special problem, which may easily come to be of importance, and which has been discussed more particularly among French jurists. The exclusion of liability in certain events by contract provisions is no doubt in general to be determined by the law of the place where the contract is made, i.e. the place where the goods are entrusted to the carrier,i^ and this pro- position holds good even if a subsequent carrier, and in particular the carrier who has to deliver the goods, would, as a general rule, by the provisions of his own law, incur a larger responsibility. But this rule suffers an exception, if by the law prevailing in the country in which the later stages of the carriage take place (i.e. as a general rule, by the law of the domicile of the railway or carrying company that takes charge of these later stages), so extensive an exclusion of liability by contract is looked upon' as inadmissible, as being contra honos mores, or at variance with ordre public}*' Thus, in France, a clause importing a general freedom from responsibility in favour of some carrying agency cannot be pleaded to meet the consequences of negligence that has taken place during the transit in France, even although it would be valid in the country in which the contract was made, it may be in consequence of some special privilege of the company or the State that is in possession of the railway. But,- by a judgment of the Court of Cassation, it is held to be quite possible to allow a clause in a passenger's ticket, issued abroad, by which the company is not liable for the simple loss of unregistered luggage, the custody of which is undertaken by the traveller himself, to take effect in France. ■'' Thus, for instance, there is a rule of law at the starting-point, that' a cargo of coilis to he accepted as complete, if the ■H'hitewash covering remains intact : this rule will be recognised as authoritative in France to this extent, that itwill relieve the French carrier of the presump- tion, •which would otherwise obtain, that it was through his fault or that of the other carrier that there was a shortcoming (see French Ct. of Cass. 28th Nov. 1876, J. iii. p. 454)'. " Cf; Laurent, viii. § 174, and the judgment of the Court of Paris, of 4th Dec. 1877, there criticised. It was not held in this judgment that any violence had been done to ordre pubUe, although the compensation to which the consignee was entitled to by the rules of the railway on which the transit began was so small as to be illusory. But the judgment would have been the other way, but for the fact that the sender had it in his power, on payment of an ■extra rate, to declare what the whole amount of his interest in punctual delivery was, and, if he had done so, to recover it (see Ct. of Cass. 19th July 1876, J. iv. p. 351). 66o bar's international law. , {note Y The opinion, however, expressed both by Laurent and the Court of Cassation, that a clause of relief from responsibility, which, taken absolutely, will be treated by the law of the country, and perhaps by the law of every country, as invalid, may yet have the effect of shifting the onus of proof, is an opinion which we cannot completely share. Our notions of law may well detect a disadvantage, or an actual denial of justice to one of the parties, in deducing even a presumption from such an invalid stipulation. If a railway company is asked to pay damages on the ground of some liability outside their contract, as, e.g. may be the case in connection with the German law of liability of 7th June 1871, then, as we are concerned with an obligation guasi ex delicto, the law of the place in which the fact said to infer liability occurred must be applied ; and that will be so even although, in virtue of some public treaty, a foreign company had the management of the traffic in its hands. NOTE Y ON §§ 295-297. CAE.RIERS' LIABILITY. [The law of Scotland and England on this subject is the same. In the first place, " it is quite fixed," to use Lord Gifford's words in Horn V. N. B. Eailway Co. 1878, Ct. of Sess. Eeps. 4th ser. v. 1055, " that a railway company who issues a through ticket undertakes the whole contract of carriage, although the journey involves passing over lines or even journeying in steamships which do not belong to the company issuing the ticket. ... If ' goods ' are lost or injured, the loss or damage must be made good by the company who undertook the through transit, wherever the actual loss or injury may have taken place." for the law of England, see Hodges on Eailways, p. 620 et seq. This rule is the same as that applied in the case of two inland railway companie.s. (Metzenburg v. Highland Eailway Co. 1869, Ct. of Sess. Eeps. 3rd ser. vii. 919). The rule as to the conveyance of passengers is the same as that as to goods (Lord Gifford, ut supra). It may often be of importance to determine what is the law of the contract in such cases, with a view to determine, e.g. questions as to the legality of certain stipulations contained in the contract, these being lawful in country A, but forbidden in country B. This is quite a distinct ques- tion from that stated in the last paragraph. The law of the place of the contract, i.e. the place in which the contract was made, was at one time supposed to give the rule (Shand v. P. & 0. Co. 1865, 3 Moore, P.C.KS. 290, as explained by the Lord Justice Clerk Moncrieff (who had been of counsel for the pursuer in that case), in Horn v. K B. Eailway Co. cited supra). The doctrine established by more modern decisions (eg. Cphen v. S. E. Eailway Co. 1877, L. E. 2, Ex. D. 253, and Ee Missouri S.S. Co. 1889, L. E. 42, Ch. Div. 321) seems to be that while, prima facie, the lex loci contractus will prevail, it is not always to rule, and preference will be given to the country with which the con- § 298] INSURANCE CONTRACTS. 66 1 tract has a substantial connection, performance, like the execution of the documents and the domicile of parties, being an element for considera- tion. If there be anything, however, in the contract plainly immoral, and forbidden by positive law, effect will not be given to its provisions. Westlake, while approving of the results arrived at in these judgments, is of opinion that too much weight has been attached to the intention of parties, § 212.] IV. CONTEACT OF INSUEAISTCE. § 298. In this subject an application of the general ..principles which regulate the law of contracts gives as the following result: Fir&t, the contract is, in so far as the obligation of the insurer is concerned, subject to the law which prevails at the place where the insurance office is established, provided this office makes its contracts on general principles, published once for all, and does not work through agents established in a foreign country, who in making their contracts avail themselves of the language of that country, and never direct the attention of the policy- holder distinctly to the law which prevails at the place where the company is established. N"o particular notice need be taken of contracts of insur- ance occasionally made by individuals as insurers or underwriters. The practice of England and that of the United States lay weight exclusively upon the consideration of the place in which the contract becomes binding in form, and it is therefore of importance to consider whether the contract becomes binding for the company by the agent's subscription, or only comes into force when it has been transmitted to the company's head office, and subscribed by the directors.^ This is not in harmony with the requirements of ioina fides in commercial intercourse.^ A foreign insurance company, which retained agents in the German Empire, and issued its policies to German holders in the German language, without making any reference to its own law, which was different from that of Germany, could not, in my opinion, successfully appeal to any provisions of its own law which might be more favourable to it.^ 1 See Wharton, §§ 465-467. 2 The judgment of the Court at Besaujon of 6th March 1871 (J. i. p. 239), which was upheld by the Court of Cassation, may be defended substantially on considerations of bona fides looking to the data. ^ Emerigon, TraiU des Assur. i. t. 4, § 8, par. 2, says as to the local law of policies of insurance: "Contracts concluded abroad by one Frenchman with other Frenchmen will, in France, be judged by the law of France : for the law of their country will follow the parties all over the world. The law which prevails at the place in which the contract is made will, however, rule contracts of insurance made by a Frenchman with foreigners abroad. The same rule holds, if a Frenchman carries on the bu.siness of insurance on his own account abroad." These rules, however, are not universally applicable. If a man carries on the business of insurance, as generally happens, as his livelihood at some particular place, the lex loci contractus will be applied without any regard to the law of the insured's domicile. Voigt and Heinichen, Archiv. fiir Handelsrecht (1858), i. p. 210. If, on the other hand, two subjects of the same country conclude a contract of insurance by accident in a foreign country, the first rule laid down by Emerigon is sound. 662 bar's INTERNATIONAL LAW. [NOTE Z Should the contract be null by the law of the insured, the insurer cannot for all that appeal to that law, since the law of his own domicile will, in accordance with what has been said, determine his liability.* He may do so, however, so long as the first premium is not paid, since • he has in that case the exceptia non adimpleti contractus.' If the transaction is forbidden by the law of the policy-holder's domicile, and is also according to that law — although this does not necessarily in every case follow — null, of course no action for a premium can be raised in the courts of the country to which the insured belongs.^ In the second place, the contract can only be validly executed in point of form by satisfying the conditions of the lex loci actus, in cases in which the insured and the insurer are not both subject to the same law. If any system of law forbids or declares' to be null insurances in particular circumstances upon considerations of police, as, for example, the French commercial law does, in the case of insurance of maritime freight not yet earned, that does not necessarily import that such a contract of insurance will never receive , effect or found action in a country where that prohibition is the law of the land. If the contract in the circumstances in which it was made truly belongs to another territory where it is permissible, and if some subsequent accident brings it to pass that it comes to be pleaded in a country where it is illegal, it must still remain effectual in this latter country, unless it can be maintained that according to the legal ideas which prevail there some positive violence would be done to the rules of morality or decency. That, as a rule, will not be the case. This distinction, which is quite in accord with the general principles we have already laid doWn, is of special importance in the law of insurance, and Lyon-Caen and Eenault are right in calling attention to it (Dr ch. ii. §§ 2090, 2091).6 NOTE Z ON § 298. INSUEANCE CONTRACTS. [To determine the question whether a contract of insurance is of one country or another, the policy having actually been taken out in one country through the hands of an agent of the company residing and trading there, and the company having its seat in another country, the cardinal point in Scotland has been held to be whether the agent had himself power to bind the company, or acted merely as its hand. If he had such power, then the contract belongs to the country in which he lived and traded ; if not, the contract belongs to the country in which the company carries' on business and has its head office. In Parken v. Eoyal Exchange Ass. Co. (1846, Ct. of Sess. Eeps. 2nd ser. viii. p. 365), "the agent of the company * Trib. Civ. Anvers, 24th May 1877 (J. v. p. 512) : the foregoing rales must determine the question whether an insurance on the life of a third party falls to his heirs or to the insurer. * Wharton, § 467 ad Jin. * As to maritime assurance, see infra, §§ 332-336. NOTE Z\ INSURANCE CONTRACTS, 66^' iu Edinburgh had no power to take and accept risks without reference to the head office," which was in London, and the company "determined on and accepted the same, the proposals being only transmitted by him with his own opinion as to the propriety of acceptance. On the other hand . . . the policy, when completed, was sent by the office in London to their agent here," i.e. in Edinburgh, " was delivered by him to the insured, and the premium paid simwZ ac semeZ " (Lord Justice Clerk). "The agent ... had no power to complete insurances. He was a mere hand to transmit and to receive and deliver policies. What was delivered ? An English , contract, a policy granted by a company having its place of business in London, executed according to the forms of the law of England, and bearing no reference to any foreign locus solutionis, either of the premium or of the sum insured " (Lord Cockburn). The contract was accordingly held to be English. On the other hand, in the case of St. Patrick Ass. Co. v. Brebner (1829, Ct. of Sess. Eeps. 1st ser. viii. p. 51), the company, an Irish company, employed agents in Scotland, advertising that their contracts commenced so soon as an order of insurance was accepted by one of their agents, and that all claims under the contract would be settled on the spot. This was held to make a contract concluded with an agent in Scotland, by a Scotsman, a Scots contract. To the same effect is the decision in the case of Albion Eire and Life Insurance Co. v. Mills (1828, 3 W. and S. 218), by the House of Lords. The insurance company then was established in England, but as Lord Chancellor Lyndhurst says : " Here is a contract entered into, not in London but in Glasgow, written in Glasgow, dated in Glasgow, and subscribed in Glasgow ; the consideration paid in Glasgow at the office established, and for a long time established, in Glasgow. Why is it, then, to be said that that contract . . . was not a contract in Glasgow ? If I send an agent to reside in Scotland, and he, in my name, enters into a contract in Scotland, the contract is to be considered as mine where it is actually made. It is not an English contract, because I actually reside in England." Accordingly the contract was held to be a Scots contract. Again, in a case in which a foreign ship belonging to Nova Scotia was insured by her agents, who were domiciled Scots traders, with a Scots insurance company, for trade between Glasgow and Havanna, it was held that the standard of seaworthiness which was required by the policy was the Glasgow standard, and not that of Nova Scotia. . The forum, the locus actus, and the domicile of both parties were here in Scotland. Cook v. Greenock Marine Insurance Company (1843, Ct. of Sess. Eeps. 2nd ser. v. p. 1379). See below on maritime insurance. The law of England seems to be that the contract of insurance is to be governed by the law of the place where its execution was completed, and it became a binding and operative contract, and not necessarily by the law, of the place where it Is dated. The case of the Albion Fire and Life Assurance Company, as a decision by the House of Lords, not depending on any special principles of Scots law, is of authority in England as well as in Scotland.] 664 SAltS INTERNATIONAL LAW. [§ 299 V. LAW OF BILLS. Introductory. Capacity to draw Bills. : ' § 299. The object of all traffic in bills is that the creditor shall receive a certain sum of money at a certain time, and generally at a certain place. But since the creditor may find it more profitable to receive this sum, or more correctly speaking, 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 obligation 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 declaration of intention, and is governed by this expression of intention alone; but at the same time, just because the obligation of the debtor is so exactly defined, there is laid upon the holder, in order to preserve his privileges and to prevent them being lost, a series of obligations as to the diligence which he must use.^ And lastly, to ensure prompt payment, a specially summary process is allowed against the debtor in the bill, and at one time there was even introduced a special kind of execution against his person.^ From all this we may deduce, with the help of the general principles which rule the law of obligations, the proper international theory of the law of bills.® In the first place, we need not trouble ourselves further to investigate the proposition that capacity to undertake obligations by bill, must depend solely on the personal law of the person who is said to be under obliga- tion, except in so far as it may be necessary to make an exception (as we noted swpra, p. 314) in favour of a person contracting in bona fide,, and of those who succeed him in his rights.* The law of England, however, and ' Strictly considered, the matter here in question is not one as to the performance of obligations, but as to the observance of certain conditions, on which the lavp makes the existence of the claim or the right to enforce it dependent. ^ For the literature of this theory, founded chiefly by Liebe and Thol, see a paper of Jolly's in Pozl's Vierteljahrsschrift fiir Gesetzgebung wnd Bechtsviissenschaft, 1866, p. 537, and Beseler, § 242, note 10. This special execution on bills is, as we know, in modern times gradually falling out of sight. See e.g. German statute of 29th May 1868 ; French statute of 22nd July 1867. ' Monograph by Esperson, Diritto cambiale internazionale, Firenze 1870. Of older date the exhaustive papers by Pohls (in Asher's SecMsfallen aus dem Gebiete des Handelsrechts, Hamburg 1837, lit. 3, pp. 1-40) and Brackenhbfft (in the Arch, fiir deutsches Wechselr. ii. pp. 129-162, 278-301). See, too, 0. Wachter's Wechselr. des deutsclien Reichs, § 9. The thorough- going provisions of the English statute of 1882 (45 a,nd 46. Vict. c. 61, § 72, are of interest). * Fiore, § 344; Esperson, D. Gainb. § 7; Weiss, p. 813; Lyon-Caen et L. Renault, Dr. comm. i. § 1311 ; Phols, p. 15, proposes that in general the lex domicilii should decide, but that peculiar provisions should not be recognised, because privileges, which are more a matter § ^^9] CAPACITY TO VRAW BILLS. 66s the law of the United States apply ,5 on grounds we can well understand, the lex loci actiis,^ but in addition modern legislation, following in this as well as in many other questions the model of the German statute on bills,' exhibits an inclination to hold that a foreigner who binds himself in any country by a bill must submit to have his capacity to do so effectively determined by the law of the country where the obligation takes place.^ There is, no doubt, much to be said for a thoroughgoing application of the lex loci actus to rule capacity to undertake these obligations, such as prevails in the jurisprudence of England and in that of the United States, although it does not suit the circumstances of the Continent of Europe, and may, as intercourse goes on increasing, soon bring obvious disadvantages even to England and to the United States. On the one hand, however, the distinctions which fall to be made according to the 84th article of the German statute on bills, have an artificial character,^ and on the other hand, few people remember that this exceptional rule was only adopted at the well-known conference at Leipsic, the result of whose labours was this statute, after animated opposition, by ten votes against nine," i.e. by a bare majority. It would therefore need very serious consideration whether so debatable a paragraph could be generally introduced as an international rule without very thorough trial. The strict rule, the expedi- ency of which is doubtful, will in truth, in general, be found to be of importance in the case of bills which are used to cover transactions which do not themselves court the light. All conceivable requirements are satisfied by the provision suggested by Norsa in his bill (art. 2 and 3) of public law, cannot have any operation beyond the frontiers of their own countiy. Lyon- Caen and Renault also say that no regard should be paid in France to incapacities, which are at variance with the droit public of France, e.g. to priviUges de caste. That, however, is going too far, if the obligation is entered into in that person's own country. 5 Wharton, § 447. [Rut as regards the law of England and Scotland, see below, note AA, p. 692. It is doubtful whether the place of the contract or the domicile will regulate the capacity in these countries.] 8 Philliraore, § 838, points out that it is precisely in the law of bills that the consistent application of the lex loci actus offers special advantages. See, too, Pardessus, §§ 1483, 1485. ' Art. 84. " The capacity of a foreigner to undertake obligations by bill, will be deter- mined by the law of the State to which he himself belongs. But a foreigner who by the law of his own country has not that capacity, will be bound by undertaking such obligations in this country, if by the law of this country he has capacity to do so. 8 See Hungarian Statute, 1876, § 95, Swedish Statute, § 84 ; Swiss Statute of Obligations, § 822; Servian Comm. Code, § 168 (J. xi. p. 168). See, too, Association for Reform and Codification (1877, at Antwerp), Rev. ix. p. 411 ; Institute for International Law (1885, Brussels) ; Annuaire, viii. p. 97 ; lastly, the Congress on commercial matters summoned in 1885 by the Belgian Government at Antwerp ; see their proposals in § 2 of the actes du Congres ; all these authorities adopt this proposition. ' Cf. judgment of the Supreme Court of Austria of 23rd February 1881 (Seuffert, xxxviii. § 92). It is there held, and we concur in the judgment, that the 84th article of the German Statute which is law in Cis-Leithanian Austria, does not apply to bills undertaken by foreigners in a foreign country, which is not their native country. In such cases the personal law is the proper law to apply. It would thus appear that there is not to be a thoroughgoing application of the lex loci actus. " Protocols of the Conference, ed. by Thol, p. 156. 666 £AJ^S INTERNATIONAL LAW. [§ 300 proposed, with concurrence of the present author, at the conference of the Institute of International Law in 1883, viz.: — "Art. 2. A I'igard de cevx qui sont Strangers A laprSsente loi'^^ la capn- cite de s' engager par lettre de change ou billet d ordre est diterminde par la, lid du pays auquel Us appartiennent. " Art. 3. Ndanmoins, un itranger incapable de s'obliger par lettre de change ou billet a ordre d'apres la loi de son pays, mais capable d'aprh la prisente loi, petit}''- en ce qui coneerne les actes de change passds dans le pays ou cette loi est en vigueur, Stre consid4rd comme valablement ohligd d, l'6gard du con- tractant bona fide et de ses cessionaires." ^^ § 300. It was, of course, primarily intended, in drawing the 84th article of the German statute, to strike at all the special incapacities which many systems of legislation had set up in connection with obligations constituted by bill, although, in all other matters save bills, there was the most complete capacity.^* This was the only reason which could justify the restriction of the exceptional provision by which capacity for incurring obligations by bill is to be regulated by the lex loci actus — the rule of the 84th article of the German ordinance on bills — to subjects of States in which that ordinance was not recognised. In States in which it was recognised, the provisions of the first article, by which every one who can bind himself by any sort of contract, has capacity to do so by bill, must also be recognised, and all special incapacities are thus swept away. But the conception of the 84th article goes beyond this, probably because the distinction was not quite clearly apprehended. On the one hand, in the case of the subjects of those countries which have adopted the German statute, any incapacity for bills which exists by their personal law will be absolutely recognised in spite of the non-recognition of it by the lex loci actus, this incapacity being shown to rest upon some general, or, at least, more extensive incapacity for legal action, such as minority, or dependence on the head of the family ,^^ and in such matters there was no unanimity within the territory affected by the German statute, and, indeed, there is not even yet complete unanimity.^* But then, by this 84th article, a person who does not belong to these States, although by his own personal law he or she may be generally incapable of " It is assumed that a majority of States would adopt the hill. The " itrangers d, la- presente loi" are therefore the subjects of States who have not adopted it. ■■^ It would be better to say "doit," or simply " est consideri." " We find arts. 1 and 2 of the hill laid before the Antwerp Congress of 1885, by the' Belgian Commission, in substantial conformity with this. " See Savigny, § 364 ; Guthrie, p. 158, and mpra, § 143. " See especially Sup. Ct. of Comm. of 26th June 1872 (Entsch. vi. p. 366), and Borchardt, Die Allgem. Deutsche WecJiselordn. 6th ed. 1882. " E.g. even at the present time (1887) there are diverse laws within the German Empire as to the capacity of wives to incnr such obligations, as there are too on the question whether they can so bind themselves without their husbands' approval. Stobbe, Deutsch. Frivatr. iv. p. 157. § 300] KVLE OF GERMAN STATUTE AS TO CAPACITY. 667 legal action {e.g. because by that law the age of majority is deferred, or because of the incapacity attaching to a married woman), will yet be treated as capable of undertaking obligations by bill, if this would be so by the lex loci actus}'' Such a provision as that is only tolerable in inter- national intercourse — unless we are to recognise the doubtful principle, now specially adopted in the United States, that questions of capacity to act are to be determined solely by the lex lod actus — because the recognition and execution of foreign judgments have serious difficulties to encounter, or will in many cases be refused without a previous investiga- tion of the judgment which it is proposed to carry into execution. In these circumstances the creditor, as a matter of fact, will generally be forced to bring his action in the forum domicilii of the alleged obligant) and the judge of the domicile will assuredly refuse to apply the foreign debatable rule of law, which is in flat contradiction to the rules of his own law, on this question of capacity. But, if we assume that judicial sentences will be capable of being executed in the countries in question, even if they have been pronounced against absent defenders in foro contractus, we should inevitably find ourselves in an intolerable position, where the rule as to the period of majority was different in those States, or where their law as to the obligations of married women or of children in family was different from our own. An extravagant ward, who was in want of money, would only need to sign bills to a usurer from a spot just over the frontier. The rule that none but the bona fide creditor and those who take from him should be protected, gives some security against such contemptuous evasion of the law. The conception of the German law, which, as is so often the case, has frequently been copied, simply because it contains some excellent provisions, is, however, faulty in another respect. In all reason, it is quite immaterial to consider whether the whole German statute on bills has been adopted in the State of the debtor ; the question should be vrhether in that State the capacity to contract obligations by bills is simply a result of general incapacity to act, whether, that is to say, the special incapacities in the matter of bills have been removed, or have never been recognised there. But by the German statute the capacity of a Cis-Leithanian Austrian subject to bind himself by a bill will be determined by his lex domicilii, while the capacity of an Hungarian to do the same thing will on the contrary be determined by the lex loci actus, if the bill is drawn within the German Empire, although the Hungarian law of bills has precisely the same principle as to capacity, and, generally speaking, does not differ much from the German statute.^* Such a 17 See Sup. Ct. of App. Darmstadt, 18th November 1863 (Seiiffert, xviii. § 154). 18 The 1st and 2nd articles of the scheme laid before tlie Congress at Antwerp contained a sounder interpretation :— , . ^ 1, j . i,7- ' ' 1 Toute personne appartenant A, un pays soumis ci la prisente Im est capable de s obhger par lettre de change ou lillet ii ordre lorsque, d'apris sa lor nationale elle a la capaciti ordinaire dz s'obliger. , , ^ , ■ , "2. La capaciU des personnes n'appartenamt pas A un des pays ou la presente lot est en mgueur 668 bar's international law. [§ 300 distinction will be altogether absurd, where there is a common statute on the law of bills covering a much larger territory, made up of different States, while within this territory the most diverse rules as to general capacity to act are recognised. The very fact that the State, to which the person who is alleged to have bound himself belongs, has entered such an union for the purposes of the law of bills, would be likely to lead any person not fully versed in law to the belief that all the material provisions as to capacity within the whole territory would be in substance identical. The fact, however, would be, that if, e.g. Spain should join the union, while Norway and Portugal held aloof, a Spaniard, undertaking the obligations of a bill within the territory of the union, might appeal to the fact that by the law of Spain he was still a minor, while Portuguese or Norwegians, who, as much as a Spaniard, are still minors at 24, could not do so. There would thus be a peculiar kind of statutory premium put upon adhesion to the union, if. it should adopt the law of bills which prevails in the German Empire or in Austria. We should almost be reminded of the war of statutory tariffs which is so popular at the present day. If, on the other hand, the theory adopted by the Institute for Inter- national Law, and by the Congress at Antwerp in 1885,^^ is to be held to mean — as it seems to mean when read literally ^o — that, even within the union of States with a common law of bills, capacity to bind oneself by bill in the way there described is to be held to be present or absent according to the deliverance of the lex loci actus ; every one of the States that joins the union will open the door to an invasion of its own laws in a way hitherto unfamiliar upon the Continent of Europe. The upshot would be, that even the State to which a person incapable of contracting obligations by bill belonged, would be forced to regard him as possessed of that capacity so far as concerned any obligation undertaken by him in a forei<»n country, i.e. in some other State of the union, if he were so by the law of the place where he signed the bill. Up to this time, that is not the law either in the German Empire or in Austria. Art. 84 of the German est rigiepar leur loi nationale. Toutefois si elles contracient dans urn de ces pays, dies peuvent Hre consideries comme valablement obligees d des tiers de bonne foi lorsque d'apris leur loi nation- ale elles ont la capacity ordinaire de s'obliger. " This unpractical hard and fast rule was adopted by only 24 votes against 20 at Antwerp. 1 would propose the following, viz.: — "Every one who can bind himself by any contract can do so by bill. It is immaterial whether or not a person had capacity to bind himself by bill, be that incapacity a result of a general incapacity to contract or not, if by the law of the place where the bill is issued the debtor had this capacity, and the person who sues on the bill or some predecessor of his in title was in good faith when he acquired the bill. Good faith is presumed " " See note 22. 2" This question, so important in itself, and specially important for any union for the purposes of the law of bills yet to be created, was never stirred eitljer in the Institute or at Antwerp. And yet it must have been made perfectly clear that the recognition of the lex loci actus, as a general principle for determining capacity which should receive reciprocal recognition, had a meaning entirely different from that which art. 84 of the German statute had for Germany. § 301] RULES AS TO CAPACITY TO DRAW BILLS. 66g 5 ■ statute was, so far as I am aware, recognised in so far as it was unfavourable to foreigners, but not so as to prejudice German subjects also. Nor can it be supposed that the consequences of such a doctrine in the law of bills will be trifling. By signing bills in an adjoining country while upon a journey, a married women, a ward, or a child, could make themselves independent of husband, guardian, or father, in money matters, with very prejudicial results. The theory, however, which is embodied in a judgment of the Supreme Court of Austria,^^ whereby performance within the territory is placed in the same category as the undertaking of an obligation within the territory, is certainly mistaken. The validity of the lex loci actus rests simply upon the view that the other party to the contract, or one who subsequently acquires the bill, shall not incur loss by the existence of any incapacity in the debtor which may easily remain unknown. It does not rest on any theory that the person who proposes to become bound may subject himself to any foreign law he pleases, by stipulating at his pleasure for this or that place of performance. The resolutions of the Institute and of the Antwerp Congress are both opposed to this latter idea.^^ § 301. The security of any one who acquires the bill is besides, in spite of the rule adopted by the Institute and by the Congress of Antwerp, by no means so great as might at first sight be supposed, unless this further rule is recognised, viz. that the place, from which the obligant in the bill dates his obligation, shall be recognised as his domicile, and that the place so specified shall determine what local law is to be applied, unless of course some declaration to the contrary is appended to the bill. Judgments of the old Supreme Court of Prussia, and of the Supreme Commercial Court of the Empire,^* have rejected this rule, partly on special grounds which are applicable only to the German statute, but partly from the consideration that provisions as to capacity to act, and particularly as to capacity to contract, are absolute provisions, which cannot be excluded by the intention of parties, or be restricted as parties may arrange. This latter ground must be recognised, if the rule is to be regarded as unconditional, and not dependent upon the bonajides of the creditor in the bill. It would in truth be absurd if a person, who by his personal law had 21 Judgment of the 24tli Jan. 1866. See, Borchardt on art. 84. On the other hand, see- the Austrian judgments of 1875, reported in J. v. p. 287. 22 The final edition of the articles which were then under consideration runs thus according to the proposals of the Institute :— " Art. 1. Ust capable de s'obliger par lettre de change ou par billet d. ordrs quiconquc est capable de s'obliger par contrat. "Art. 2. L'etranger incapable de s'obliger par lettre de change ou par billet d ordre, en vertu de la loi de son pays, mais capable d'apris la loi du pays ou il appose sa signature sur la lettre de change ou le billet d ordre, ne peut pas imoquer son incapacite pmir se sonstraire d. ses obligations. The words " civilement ou commercialement" are inserted at the end of art. 1, instead of "par contrat" in the last edition of the proposal. 2» See Supreme Ct. of Comni. 3rd May 1878 (Seuffert, xxxiv. § 238). 6/0 bar's international law. [§301 no capacity so to bind himself, could withdraw himself from the operation of this incapacity by simply choosing some other place as the place for the issue of the bill. But it is far from absurd to hold that the litera scripta shall have this effect in favour of a bona fide holder of the bill and the rights contained in it.^* The principle of regarding nothing but the bona fides of the person who acquires the bill guarantees a wider security, whereas the principle of accepting rules of capacity absolutely according to the lex loci actus makes it impossible to have any such security, which is so essential to the despatch of commercial dealings. In so far, however, as the personal law of the obligant is to determine the capacity of that person to undertake obligations by bill, we must hold it to be quite immaterial on what grounds the personal law rests the incapacity. It is purely arbitrary, for instance, to distinguish between incapacity which is based on political considerations, and in- capacity which is based on non-p6litical considerations, and leads to further doubts and uncertainties.^^ In such cases we shall, again, be much more likely to arrive at an equitable result by holding that no such incapacities can be pleaded against a bona fide holder if the obligation has been under- taken in a foreign country. This principle of bona fides ^^ is all the more to be recommended because it may be admitted, even by that State by whose laws the obligant would be incapable of contracting such obligations, without giving too much countenance to evasions of its own law, that, if bona fides is taken as the guiding principle, there will be all the less risk of divergence in the judgments of the courts on questions as to the various obligations involved in bills, a divergence which may have very serious consequences for the parties interested (see supra, § 142, p. 314). ^ By far the greater part of the obligations in a bill are undertaken at the debtor's domicile, and this the endorsee may assume to be the case. But BraokenhBfft goes too far when he maintains (p. 139) that the place which the bill states to be the place where its obligations are to be undertaken 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. The following cases may be noticed here: A merchant sends to his correspondent 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 Manchester 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 or 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 u Mingay, 1 Maule v. Selwyn, 87 ; and Grimshaw v. Bender, 6 Mass. 157.] ^ For instance, it was held by the C. de Paris, on 26th Nov. 1850, that an ordinance of the King of Naples, by which all the members of his Royal House were deprived of the capacity of drawing bills, could have no effect in France, as being against the French Droit Public. "^ The principle of bona fides came, however, with something like a shock on Herr .Jitta from Amsterdam. The simple question, " Pourquoi U legislateur, en posant des regies, tiendrait-il compte de la bonne ou mawvaise fois des coviractants ! " was sufficient to induce him, and apparently the majority of the Congress at Antwerp, to reject the principle of bona fides. The ■debates of a congress do not always tend to improye the proposal originally laid before it. § 302] FORM OF BILLS. 67 1 Fqkm of Bills. § 302. There is no question that, as far as the form of the bill and its transmissions are concerned, the- rule "locus regit actum" must be recog- nised. The obligation contained in the bill is validly undertaken if it is in conformity with the law recognised at the place where the declaration of liability is made.^' But in this connection, again, the rule " locus regit cxtum " has no more than a permissive force.^ Thus, for instance, in the German statute, art. 85, siibsec. 3, it is expressly recognised that bills, used by a German as a means of putting himself under obligation to another German in a foreign country, have legal effect as bills, although they satisfy the requirements of Gorman law only.^^ But we may go still further. Since the obligation incurred by a bill is an unilateral obligation, it can never be of any consequence to enquire what is the nationality of the creditor, or of the indorsee,^" and it is obvious that the security of commercial dealings in bills takes nothing but advantage from this circumstance being left out of account. Doubts, however, may very easily arise as to the intention of a person to bind himself by a bill, if the obligation is according to the requirements of his personal law, and that law requires fewer forms than the lex loci actus. Again, just as there may be cases in other departments of law, in which the personal law of the parties has nothing to say to the regulation of the obligation (except in so far as questions of capacity to act may be involved), so in the law of bills there must also be cases of that description, and there, as much as in other cases, it will be quite out of the question to submit the form of the obligation to the test of the personal 27 story, § 360 ; Masse, p. 143 ; Fiore, § 345 ; Esperson, § 13 ; "Wharton, § 448 ; "Weiss, p. S16 ; Lyon-Caen ct Renault, Dr. c. i. § 1313. For instance, a bill drawn in the German Empire, which does not bear to be for value received, is nevertheless valid in France [where such a declaration is necessary]. It is the same with regard to "remise de place en place." Conversely, a bill drawn in the German Empire, which does not contain the word " bill," will not be regarded as a bill in France, in respect of the provisions of German law [which require the use of this word]. The following are important divergences in the rules as to bUls : According to the Code de Commerce, art. 110, 137, 138, the original bill and all indorsements must bear to be for value : that is not necessary by the Deutsche Wechselordmmg (cf. Hoffmann, p 179) By English law bills may Jae made payable to bearer, but not so by German law : and again, the law of England does not require the specification of any date or of the place of issue or of payment. German, Scandinavian, and Swiss law make the use of the word "bill " for an equivalent, Imp. Ct. at Colmar, 14th June 1881, J. ix. p. 332] absolutely essential to the validity of the document: by French, Belgian, English, and American law it is not indispensable. (See "Weiss, ut cit.) 28 Cf. Fiore, Esperson, "Weiss, etc. „,, ^ 4.1, 28 See the general provision in the preliminary article 9 of the Italian Code. That the rule "loms regit actum" should have no more than a permissive force is, as Esperson rightly notices, of practical advantage in commercial intercourse. A man who desires to undertake such an obligation will not always have time to inform himself as to the " lex loci a^tus. ="> In this sense, see Esperson, § 17. 672 bak's international law. [§ 303 law of the obligant.^^ AccordiBgly,^^ it is a safe rule for creditors in bills always to require that the lex loci actus should be observed.^^ But if there is to be legislation on the subject, we might recommend this simple formula, which puts all subtleties aside, viz. : — " It is enough for the validity of any obligation contained in a bill, in so far as form is concerned, that the law of the place where the declaration of obligation under the bill is given should be observed." But it is immaterial to the international recognition of the form of a bill to consider what the grounds are on which the legislature of any country has prescribed this or that particular form. If a system of law, as the English does, makes the want of a stamp operate as a nullity, this defect, like any other defect of form, must be respected abroad,^* It is not enough to justify a disregard of any such rule that its object is purely fiscal, as we have already demonstrated on principles of much more general application. It is another matter altogether, whether the system adopted by a number of other legislatures, e.g. that of Germany, by which the only result of the want of a stamp is a penalty, is or is not preferable. The Congress at Antwerp in 1885 very properly held that it was. Legal Eelation of the different Obligations on a Bill undertaken in DIFFERENT TeRKITOEIES, IN SO FAR AS FORM IS CONCERNED. § 303. If we test each separate obligation connected with the bill by the lex loci actus, it follows that an acceptance, or an indorsement,^^ may be validly appended in this country to a bill which by the law of this '1 Masse, § 572, proposes that the form prescribed by the personal law should only be accepted as sufficient, if the bill is payable at the domicile of the obligant. That certainly goes too far. See, on the other hand, Esperson, § 15. Fiore, § 345, seems generally to pay more attention to the place of payment. ^ In the case of bill obligations, issued by a trading firm or trading establishment through its manager, the law of the place of the firm or establishment must be recognised as the law that may, if the party so chooses, be used. ^ The scheme for the regulation of questions of international law in the matter of bills and letters of exchange, published by the Institute for International Law in 1885 (Annuaire, vii. p. 121), provides in a way that seems to be distinct : "\. La force de la lettre de change et du billet d ordre est determinee par la loi du lieu de son Amission. La forme des endorsements, de I'acceptation et de I'aval est Jixeepar la loi de chacun des pays ou ces actes sont fails." ^ Weiss, p. 818; Lyon-Caen and Renault, Dr. Civ.,i. § 1315. The latter, however, is not perfectly distinct. The practice in England is otherwise, which, however, Phillimore, § 837, describes as "very questionable." The Bills of Exchange Act, 45 and 46 Vict. c. 61, § 72, subsec. la, is also to a different effect [viz. "Where a bill is issued out of the United Kingdom it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue."] 36 By a judgment of the Sup. Ct. at Berlin on 10th July 1860 (Seuffert, xiv. p. 164), it is held that execution and process as on a bill is not competent within the territory of the German statute upon promissory notes issued in the United States, and not containing the expression "Bill of Exchange." But in connection with indorsations in this country of bills belonging to this country, see the judgments e.g. of the Supreme Court at Berlin of 8th February 1870, cited by Borchardt in his commentary on art. 85 of the German statute. § 304] FORM OF BILLS. 673 country would be bad from some defect of form (e.g. because it does not contain, the words, "bill of exchange" \weclisel\, which are required by the German statute), if only it is valid by the law of the place where it was issued. But again, on the other hand, the acceptance or the indorsement of a bill made in this country is valid, so far as form is concerned, although the bill itself does not satisfy the forms required by the law of the place of issue, if only it does satisfy the conditions required by the law of this country.^® For the acceptor binds himself unconditionally for payment of the sum in the bill, and the indorser binds himself in the event of the acceptor's failure to pay : that being so, we cannot, on the one hand, take into account the fact that the debtor may or may not have a right of recourse or of indemnity, nor can we take into account the reason why the ]irior obligant does not pay, and that reason may be that the principal debtor in the bill has not validly bound himself.^^ Substantive Impost of the different Obligations on Bills. Extent of THESE Obligations. Conditions of Eecoukse (Protest. Notice of Dishonour). § 304. In considering the substantive import of the different obligations ^ D. W. 0. art. 85, par. 2: "If, however, the foreign bill, or its transmissions 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." See, too, the other judgments of German courts given by Borchardt. The Bills of Exchange Act [45 and 46 Vict. c. 61, §72, (1)(*.): " Where a bill issued out of the United Kingdom conforms, as regards requisites in form, to the law of the United Kingdom it may, for the purpose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, or become parties to it in the United Kingdom." ^ The rules laid down with reference to assignation will apply so as to regulate the liabilities of the obligant in a bill to pay upon an indorsement that has been made abroad, and conversely, his release by paying upon sueh an indorsement. Thus the obligant must pay if the indorsement is valid by the law of the place to which it, as a separate legal transaction, is subject ; and in such a case we have no concern with the law of the place of payment (cf. Borchardt' on art. 85 of the German statute, and Imperial Court of Commerce, 11th May 1872, Dec. vi. p. 125). But the debtor is also discharged if he pays in lona 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) obligations under the bill. Cf. too, Story, §§ 316a 353c. If a bill is issued and is payable in a country in which, as is the case in England and Germany, blank indorse- ments are good, but the bill is afterwards blank indorsed in some other country in which a blank indorsement does not operate as an indorsement, the person to whom the bill is directly transferred by that blank indorsement cannot sue the acceptor or the drawer : but a person who can plead a subsequent blank indorsement valid by the Ux loci actus, can so sue, for the person who has bona fide acquired the bill by this subsequent indorsement, is creditor in it, and there may have been quite a valid assignation of the bill in spite of the intervention of the invalid indorsement in blank (see Fiore, § 349). Different indorsations made in the same form may have the effect of a mere assignation in the one case, but of a real indorsation in the other. „ 2 u 674 BAH'S INTERNATIONAL LAW. [§ 304 on a bill, we may for simplicity's sake assume the case to be, as it generally is, one in which the place in which the obligation is undertaken is also the domicile of the obligant. We shall, before concluding, deal with the case of these being two different places. Although the older jurists ^ held the view that the obligations on a bill are subject to the law of the place of performance, i.e. the place of payment provided in the bill, we may now regard this view as abandoned. The prevailing theory now is that the law of the place at which each obligation is undertaken will regulate it.^^ The law of the place of payment will regulate no more than the parti- cular fashion in which payment is to be made, just as in other contracts the usage and therefore the law of the place of payment must always ex necessitate rei have this effect. It is obvious that no man of business can be compelled to pay outside his ordinary local business hours or upon a local holiday. It is part of the same rule that one cannot compel payment forthwith, if that be contrary to the law of the place of payment, but must allow the ordinary days of grace which are recognised there.*" In the same way we must hold that, if a particular day in the calendar is appointed ■for payment, that day must be ascertained by the calendar which is recognised at the place of payment,*^ and that where there are different coinages, going by the same name, those which are current at the place of payment are those that are intended, in the absence of express provision to the contrary.*^ In so far as the question of coinage is concerned, our ^ Pothier, TraM du eontrat de change, % 155. Cf. Norsa, p. 30. Brocher, ii. § 253 (p. 315), pronounces in favour of the law of the place of payment. One argument against this is that when the bill is issued the obligation of the acceptor is still indeterminate. ^ Fiore, § 346 ; Esperson, § 21 ; Asser-Rivier, § 105 ; Wharton, §§ 447 ct seg. M''estlake, §§ 230, 231, seems to express himself in favour of the place of payment. [But see the English Statute, § 72 (2).] Hingst, Rev. xiv. p. 414, with reference to the practice in the Netherlands ; Norsa, Rev. viii. p. 464 (practice in Italy) ; Judgments at Leipsic in 1876 (J. v. p. 617) ; and Clunet, ibid, Ct. of. Cass, at Turin, 7th Mar. 1883 (J. xii. p. 457). One who issues a bill drawn to his own order is responsible according to the law of the place of issue, although he may have indorsed it in the territory of some other law. Ct. of the Emp. (i.) 4th Dec. 1886 ; Bolze, iv. § 16, p. 5, Lyon-Caen et Renault. Dr. c. i. § 1317 ; Foote. * Pohls, p. 17 ; Masse, § 628 ; Esperson, § 62 (p. 90) ; Phillimore, § 857. Thus the law of the place of payment determines whether, if the day of payment falls on a holiday, the pre- ceding or the subsequent day is to be held to be the day of payment. See Code de Comm. § 134, and on the other liand the German statute, § 92. *i Bills of Exchange Act, § 72. (5.) " Where a bill is drawn in one country, and is payable in another, the due date thereof is determined according to the law of the place where it is payable." ^ See Masse, § 610. If at the place of payment there is no legal or customary currency such as is specified, then in doubt the currency of the drawer's domicile is held to be intended. If there is no special provision made for payment in coinage of a particular denomination [e.g. sovereigns), the debtor can always discharge his obligation if he pays tlie value of the foreign coinage in his own currency. But, if there is such a special provision, the creditor can, according to the sound view, demand payment in that currency, although it be foreign. He may have a special interest to do so, e.g. if he is on a journey, and the acceptor on the other hand should consider before he accepts whether he is in a, position to furnish that kind of money. No difference is made on this rule by a law giving a forced currency to paper money § 305] THE DIFFERENT OBLIGATIONS ON A BILL. 675 conclusion is the result of the history of the law of billsj for the holder of the bill was originally a person who desirpd to be supplied with the money which was in circulation at the place of payment. " As-Tegards the calendar, we must start with this consideration, that the person who issues the bill imposes its conditions, and these he must express in the wa^ in which they will be most easily understood at the place of payment. That is effected by fixing the day of payment according to the calendar that is in use at the place of paynient.*^ The matter stands otherwise if the day of payment is fixed at the expiration of a particular period from the date of the bill. The date is the day on which the bill is truly completed, not the day, which is described by the same title in another calendar, but is, of course, a different day altogether.** § 305. For the rest, we must remember that the person who draws the bill is its author. His law must therefore be the primary rule in deter- mining the extent and the conditions of the obligation. Just as he may make express provision, that, e.g. a bill drawn on sight must be presented for payment within a certain time, he may effect the same thing by the simple fact of drawing it in accordance with his own law.*^ The acceptor cannot in any case assume the obligation which has been formulated by the drawer to any greater extent or under any other conditions than those which are already prescribed for it by the law of the drawer himself. But it is just as impossible to hold that the drawer, the principal obligant, or bank notes within any particular country, unless it expressly limits the freedom of contract in this matter (so Esperson, p. 104, and Italian practice, J. ix. p. 284. To the opposite effect Borchardt). Even in the event of such a limitation on the freedom of contract it is not held to apply, unless something more is said, to foreign currency or to bill drawn in another <;ountry, which speak of a foreign currency. [Thus it was held by the Trib. comm. de Marseilles, 7th Nov. 1871, that the holder of a bill payable in France was bound to accept pay- ment in notes of the Bank of France, having at the time a forced currency, and that although the bill bore that payment is to be in gold, there being no separate and special agreement to that effect.] ^ German practice hitherto has followed this rule. See Borchardt on art. 34 of the Ger- man statute. '^ See art. 34 of the German statute. *^ The provision of the 31st article of the German statute, viz. "A bill drawn on sight is due on presentation. To avoid the loss of the right of summary recourse against the indorsees and the drawer, a bill of this kind must be presented according to any directions that the bill itself may contain, and in the absence of such dii'ections within two years after its issue," is applicable only to inland bills, and not to bills drawn on this country from some place abroad. €f. Thol, ProtohoUe, pp. 44-47, and Esperson, § 27. The law of France makes provision for the .converse case as well (see Code de Comm. % 160, law of 3rd May 1862). The limitation of the German law, however, seems to be more sound. A conflict may arise where two systems of law, that of the drawer and that of the place of payment, both make provisions to meet the case of bills drawn from this country on some place abroad, and those drawn on this country from abroad. Such a conflict finds its solution in this — that the. draiver can only appeal to his own law, as can also the indorser, who lives in the country to which the drawer belongs ; whereas an indorser who lives in the country where payment is to be made can always claim the shorter of the two periods provided by the two systems of law ; and an indorser who lives in a third country, again, can only plead the law of the place of issue, unless his own system of law gives him more favourable terms. 6^6 bar's international law. [§ 306 desired to bind himself to any greater extent or on any other conditions than those which are known to his own law.** The acceptor can always, therefore, plead either the law of the drawer or his own law to show that the conditions necessary to his being bound are not present. But he can- not plead that the obligation of the drawer is not good ; for although the drawer formulates generally the extent and the conditions of the obligation, the shape into which he has thrown the obligation is not adopted by the other obligants on the bill on the footing only that the drawer has validly bound himself. On the other hand, the important matter for the person, to whom the drawer hands the bill, is not the obligation of the. drawee^ — (and indeed most systems of law do not require any antecedent presentation for acceptance, except in the case of bills payable at a certain date after sight) — but the fact of payment. Thus considerations which entitle the acceptor to discharge are not, apart from the fact of payment itself, avail- able for the discharge of the drawer also, in so far as the drawer by delivery of the bill has guaranteed payment of it. § 306. Those who take part in the further circulation of the bill transfer*'' (a) the claim against the acceptor, to the extent to which this exists by his own law and by that of the drawer: (&) the cautionary obligation of the drawer which we have described : and (c) every person taking part in the circulation adds a further cautionary obligation in terms of his own law,*^ but in terms of that law only. (The effects of indorsation after the bill is due, and the effects of indorsation . upon dishonoured bills, are in the same way to be determined by the law of the place where each such obligation is incurred, as Pohls has well remarked.) Such indorse- ment has always the effect of an assignation, but, it may be, only of an assignation of a claim under the bill against the acceptor (see German statute, art. 16) ; and if the indorsation, e.g. as being a blank indorsation, should happen not to bind the indorser by the usual bill obligations, according to the law of the country where the indorsation takes place, still it is not permissible for the acceptor or the drawer, as the case may be, to- *^ Fiore, § 348 ad fin. seems inclined to allow the law of the acceptor to form the exclusive- rule. Against this, see the last proposition of Thesis ii. of the Institute of International Law :. ' ' Les effets et la validiU de la lettre de chaiige et du billet d, ordre des endorsements de V acceptation, de Vaval se jugent d'apris les lois de chacun de ces pays ou ces diffirents actes wnt faits, sans prejudice des rigles relatives d, la capacity, des signataires des litres. Toutefois, les effets des actes posUrieurs A la creation du titre ne peuvent jamais Ure plus itendus que ceux qui dirivent de V Amission du titre lui mime." (Aunuaire, viii. p. 121.) *' If, by the law of the place where the paper is issued, it is transferable by indorsation, it can be validly so transferred in a country, by the laws of which it would not be so indorsable. See Phillimore, § 850, and the decisions reported there. ^ The historical origin of the indorser's right of recourse corresponds with what has been said : "The cedent, who at first, when a biU 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 bill, and then again subsequently transferred merely the order contained in the first bill, with the guarantee of his own obligation, which made it unnecessary to repeat all the forms of a bill,, since a part of these could be held as tacitly repeated. " Hoffmann, p. 52, § 306] THE DIFFERENT OBZIGATlOm ON A BILL. 6TJ appeal to any such invalidity in a question with the indorsee, or any one who follows him ; the claims against these persons, the acceptor and the drawer, follow their own laws. A further result of this principle is that the conditions of recourse against each debtor on the bill are to be deter- mined by his own law, and thus, as a general rule, by the law of the place where each obligation is undertalien. This is in truth the theory which now prevails,*^ and it must by logical necessity be extended to (j^uestions of the necessity of taking a protest on the bill (e.g. against particular con- tingent obligants).^" The same law must determine the question whether several obligants can be sued at once, whether recourse can be had only according to the order of the indorsations, or may be followed out in any order,^! and must also settle what is timeous notice of dishonour.^^ There ^' Pbhls, p. 30 : story, § 360 ; Pardessus, § 1497 ; Masse, § 630 ; Schaffner, p. 122 ; Seuffert, Comm. i. p. 253 ; Hoffmann, pp. 605, 606 ; Dft. Comm. Code for Wiirtemberg, § 1003 ; Eehbein, p. 6, on art. 86 of the German statute ; Thbl, Wechselr. 4th ed. § 16, iv. ; Imp. Ct. (i.) 28th February 1882 (Deo. ix. p. 438). See Asser-Rivier, § 106 ; M'^eiss, p. 821. But yet it is not made quite clear by many authors, whether in their view it is sufficient, if the holder of the bill observes the law of the place of issue, as Fiore, § 359, thinks. Esperson, § 33, expressly declares this to be so. But this is illogical, if, with Fiore and Esperson, we are to hold that the law of each one who takes part in the circulation of a bill will determine questions as to the prescription of his right of recourse. The true view is adopted by the Supreme Court of Commerce, 1st February 1876 (Dec. xix. p. 203) ; and the Supreme Court of Berlin, 9th May 1857 (Striethorst, Archiv. xxiv. p. 294) ; and in a particulai-ly precise form by Story ut cit. ^ The question how far the holder must be contented with an acceptance for honour and payment for honour, is simply a question as to recourse. Pbhls (p. 24) overlooks this ; he proposes that the law of the place of payment shall rule, but still — and- in this he is right — he holds that the rights of the person who interposes for the honour of another must be settled by the law of the domicile of this latter person. ^^ Asser-Rivier, § 107. Masse, § 623, takes another view : he thinks the law of the place where the bill is drawn must determine the competency of a joint action. Special distinctions, in which, however, I am not prepared to concur, are made by Fiore, § 358. ^ Theories are perhaps most divided on the subject of notification. See the various decisions in Borchardt. Many authorities are inclined, since the holder of the bill may often be unable to inform himself quickly enough as to the law which rules at the domicile of the person who is liable to recourse, to allow the law of the domicile of the person who takes recourse against him to rule. See Thesis v. § 2, of the Institute for International Law : " Les avis d, dormer aux garants pour la coiiservation des droits de recours dans le cos de di/aut d' acceptation ou de payement et les dilais pour les notifier, sont rigis par la loi du lieu d'on ces avis doivent Hre envoyis." This is, however, illogical, and, if there is to bp legislation on the subject, it would be better that the law of the place of issue should be declared to be regulative of this matter also. If a foreigner who claims recourse has redeemed the bill from some posterior indorsee, although he might have successfully maintained against him in accordance with foreign law that there had been no sufficient notice of dishonour, an indorser in this country may appeal to that transaction to establish that in law there is no recourse against him. Cf. Eehbein, on art. 86 of the German statute. The distinction taken by Salpius {Zeitschrift fiir das gesammte Sandelsr. xix. p. 60), in reliance on the English practice, which on the subject of bills is not specially clear or logical, can scarcely be considered tenable. He thinks that the necessity' of notice of dishonour should in itself be determined by the law of the person to whom the notice should be given, while the form should be regulated by the law of the place from which the notice proceeds; to the head of " form " he thinks that the period of notice belongs. This is, however, an erroneous application of the rule "locus regit actum." As the point in question relates to bringing something to the knowledge of a person, in 678 BAX'S INTERNATIONAL LAW. [§ 306 is no need to refute over again the opposite view, by which the law of the court is to decide ; this can only be justified on the principle that the lex fori must always be applicable unless that law itself expressly provides that some other law shall apply.^ We need only notice that, since the place of the court and the domicile of the person against whom the claim is made generally coincide, this theory will in its results as a rule harmonise with our own theory. The theory which holds that the law of the place of payment must regulate the obligations of all who are liable on the bill has more to .say for itself. ^^ Against the assumption of an universal subjection of all the obligants on the bill to the law of the place of payment, an assumption which we havte already combatted, we must plead that the importance of the solemnities required to found a right of recourse lies 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 vain from the principal debtor, and that, therefore, the solemnities in discussion here are of no importance with reference to the obligation 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. It may be said with some force, however, that the different obligants on a bill are in a manner tied up together,''^ and that the later obligant would not take the bill and hand it on with his guarantee on it, unless he had the right of recourse against certain specified prior obligants. This natural expectation may be deceived if this right of recourse is already excluded by the law which governs the obligation of the prior obligant, while he himself must be content to incur that liability according to the law of his obligation. Of course, this danger is materially diminished by the leading principle that as regards the form, the place,^* the eye of the law the notice is given, not at the place where he who gives the notice is, but where he who is to receive it is. The rule " loaus regit actum, " leads to the same result as the simple proposition that notice, in so far as it is necessary, is a condition precedent of the obligation of the obligant under the bill. For this strict rule see in particular Fiok, Ueber Intern. Wechselr. pp. 28 and 86. ^' See e.g. Liebe, Die allgem. Wechselordn. mit Erlanterungen, p. 231. Sup. Ct.of Mainz, 5th February 1829 (Arcli. filr Bheinhessen, i. p. 431. " This view, which corresponds with the practice in England, is sanctioned by the English Bills of Exchange Act, § 72 (3). "The duties of the holder, with respect to presentment for acceptance or payment, and the necessity for or sufficiency of a protest or notice of dishonour or otherwise, are determined by the law of the place where the act is done or the bill is dishonoured. " But see note AA, infra, p. 692. Cf. Eenaud, Wedhselrecht, p. 72, note 5 ; Giinther, pp. 742, 743 ; Heise's Ha'ndelsrecht (Frankfurt, A. M. 1858), p. 222. Judgment of the Supreme Court at Kiel, 5th February 1848 (Seuffert, 6, pp. 161, 162). The French theory (art. 160 of the Code of Commerce) is quite untenable. In its present form it subjects bills payable in France, as well as bills drawn in France on a foreign country, to French law. See, against this, Lyon-Caen et Renault, Dr. c. 1, g 1319. 55 See the grounds of decision in Seuffert, ii. Nos. 3 and 252, both judgments of the Supreme Court of Appeal at Dresden. 58 By " place," of course, we mean tlie particular locality, i.e. the dwelling-house or place of business of the debtor. I '^07] PROTEST OF BILLS. 679 and the time of making a protest, the rule "locus regit actum" is applicable : and that thus the form, the place, and the time of taking a protest are regulated by the law of the place in which that act must be done, i.e. by the law of the place of payment.^'' FOKM AND PeKIOD FOK TAKING A PkOTEST. § 307. It follows from the fact that a protest upon a bill is a public instru- nient,and that this instrument obtains faith with the public by being executed by some ofl&cial 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 See Jaques, p. 12 ; Story, § 360 ; and Lyon-Caen et Renault, Dr. c. i. § 1320. ^' The German Sup. Ct. of Commerce recognised this in a case from Elsass, a case, therefore, falling at that date under French law, Dec. (i.) 19th September 1873, xi. p. 74. '^ The principle enunciated by the Sup. Ct. of Commerce at Leipsic, that no effect can be given to any consideration of a prohibition by a vis major in a case where formalities or periods of time have been neglected, was subsequently expressly sanctioned by legislation in art. 813 of the Swiss Code for Obligations. See on the practice in Germany, Borchardt on art. 41 of the German statute. '3 See Ct. of Cass, at Turin, 20th May 1879 (J. viii. p. 543) ; the judgments cited by Norsa (Rev. viii. p. 473) ; C. de Bruxelles, 29th April 1872 ; Ghent, 25th May 1873 (J. i. 209 and 213) ; Lyon-Csen et Renault, Dr. c. 1, § 1321. As regards English law, see Foote, p. 434. '* In principle the furthest deviations from the decisions of the Sup. Comm. Ct. of Germany are to be found in the judgment of the Austrian courts already cited, with whose arguments I could in no case concur, in the decision of the Sup. Ct. of Sweden of 14th May 1873 (J. i. p. 149), reversing the decision of the inferior court, and in the cases of Rouquette V. Overmann, 1875 [L.R. 10, 2 B. 525, following Hirschfeld v. Smith, 1866, L.R. 1, C.P. 340], and of the English consular judge at Constantinople on 13th June 1872 (Goldschmidt, Zeitschr. xviii. pp. 642, 626). § 311] PROCEDURE AND EXECUTION. 685 unsound, that the matter dealt with in the French measures was a mere prolongation of the period of protest in the true sense of that expression. Norsa has presented in an excellent shape the result of this conflict upon the whole, but we must decline to go with him to the full extent to which he sets up the law of the place of issue as regulative of conflicts like this. This view is presented by Norsa himself, and by the proposal of the Institute of International Law (Thesis vi.) adopted on his motion, viz. : — " L'eoixuse tirSe des casfortuits ou deforce majeure n'est admise que si elle est reconnue par la hi d%(, lieu d' Amission du litre " ''^ If that is intended to mean that an appeal to the veto by the Supreme Power is to be admitted in every case, if only the law of the place of issue allows such an appeal, then a responsibility is laid upon the indorser, who has interposed under a different law from that of the place of issue, which is not in conformity with the other principles of the international law of bills, since the leading principle is that each obligation as regards its binding force is independent of the other obligations on the bill. But, if the meaning is intended to be — and the words read literally would seem to bear this meaning — that the holder can only appeal to that veto or impediment in a question with the indorser, if the law of the place of issue, and the law of the indorser in question both allow this, then the fact is overlooked that the person who takes the bill, in acquiring it, often really has his eye on an intermediate indorsement, and a discharge is implied in favour of that person which is logically inadmissible in face of the principle of the mutual independence of the different obligations. Pkocedure and Execution in the Matter of Bills. § 311. The competency of a special kind of procedure upon a bill is primarily dependent on whether the obligation, on which the suit arises, is to be viewed as an obligation of the nature of a bill by the law of the place where it is undertaken. It is not also necessary, in a sound view, that it should satisfy the form of an obligation by bill as that is under- stood by the law of the court. But, in so far as matters of proof are con- cerned, the lex fori must also be satisfied. A special form of personal diligence, as a means of doing execution upon the bill, is only permissible, if it is recognised by the law of the place where the obligation is under- taken,^^ and also by the lex fori, i.e. by the law of the court in which the '''^ It is, also, not quite true to say with Norsa (viii. p. 475) that the discrepancy between the judgments was rested not so much on a different view of principles, as on a different estimate of the actual ciroumstances and the provisions of the French legislation which was under consideration. 7« The Appeal Court at Genoa on 23rd March 1874 (Norsa, Eev. viii. p. 438) held, that if there was no such thing as personal diligence on bills known at the place where the bill issued, it could never be used in any other country. But this cannot be said to be free from doubt. 686 bar's international law. [§ 312 process of execution depends.'''^ For, on the one hand, in cases in which personal diligence is only competent in exceptional circumstances, and obligations on bills are regarded as involving such circumstances, that diligence is, as we see, a result of the obligation ; and on the other hand, again, the forms of execution can never be carried beyond the absolute lines laid down by the lex fori. But as in most States personal diligence on bills is no longer competent, the question can hardly be regarded as of any practical importance.'^* Obligations by Bill, dated from a Place other than the Domicile OF the Obligant. § 312. Up to this point we have for simplicity's sake generally assumed that the place where a bill is issued is also the domicile of the obligant. What of the law, if a man subscribes a bill at some other place ? So far as form is concerned, the decision, thanks to the rule " locus regit actum," is, as we have seen, easy. The person who takes the bill can, in such a case, run no risk ; he has rather a double security, since it is possible for him to appeal to the law of the obligant's domicile as well as to that of the place of the obligation, if the requirements of this latter law are not satis- fied. But the case is different as regards the substantive effects of the ^ A judgment of the Supreme Court at Berlin, of llth May 1858 (Striethorst, K.F. 2nd year, vol. i. p. 91, says : "Articles 84-86 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 formali- ties 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 Court at Berlin, 10th July 1860 (Seuffert, 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 — is, as the place of this article in the D. W. 0. shows, a part of the doctrine and usages of the law of bills, and not merely of 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 diligence appropriate to bills. But if one does this in a country where it has no such personal 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 his 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." Personal diligence on bill obligations is now unknown in the German Empire. '^ Decrees of discharge of bills that have been lost, or obligations to pay in spite of the fact that the person alleging himself to have right to the bill is not in a position to produce it and deliver it up, are matters that create no doubt in international relations. In questions with the acceptor, they can only come into play according to the law which regulates his obligation. See Renaud, Wechselr. § 100, notes 22, 23 ; Borehardt, art. 73. Art. 98 of the proposal by the Institute of International Law (Ann. viii. p. 118). The competency of the court and of the procedure are also settled by the law which regulates the acceptance. Art. 98 of the proposal of the Institute says, not quite correctly: " Les formes et ver4s d' action sont ditcrminees par la hi du lieu du payement de la lettre de change." § 312] BILLS DATED FROM PLACE OTHER THAN THE DOMICILE. 687 obligation, and the conditions of recourse founded upon it. A conflict may well arise, and the holder of a bill may be misled, if we shall allow the obligant to appeal to the law of his domicile, as, for instance, if the lex loci actus does not require a special protest in the case of recourse against a subsidiary obligant, whereas the law of the domicile of the person against whom recourse is taken in the particular case does. Asser (§ 105) is quite decided in holding that the lex loci acttis can alone decide; but Esperson (§ 21), in accord with the general rule given by the 9th prefatory article of the Italian Code, proposes that the general rule shall apply in this matter.'^^ The obligation in a bill is undertaken, as Asser remarks, not merely with reference to one particular individual and his assignees, but with reference to any lawful holder of the bill. That is quite a just remark iu the case of bills payable to order, although it does not apply to bills directed only to a particular person — which are not so familiar in practice — and it is accordingly quite just to say, with regard to the former class of bills, that it is of no consequence to what country the first holder of them may belong. But, considering that the character of an obligation by bill is essentially unilateral, no such questions need be raised. It is in our view immaterial whether the holder of a bill belongs to the same country as the drawer. Even if the acceptor belonged to another country still, in accordance with the general principles which we have already laid down, the law of the drawer's domicile must give the rule for determining the substance of his obligation. This result is by no means so unsatis- factory as it may seem to be at the first glance. Or is it to be held, if a person on a journey draws a bill at A, on behalf of his firm, established in B, with a statement that it is drawn on behalf of that firm, that the bill as regards its material effect is subject to the law of A, and not to the law of B ? *" If we leave the matter simply to be determined by the general principles of the law of obligations, which we have already laid down, those cases in which the law that is to be applied is the personal law of the obligant, and not the law of a place in which he is found by accident for a temporary purpose, will be ascertained without difficulty. Aritish ships in foreign ports. Bottomry bonds, whether in the strict sense, i.e. hypothecations of the ship, or hypothecations of the cargo, are also ruled by the law of the flag according to English law. MacLachlan, p. 63, Westlake, § 219, Lloyd v. Guibert, 1865 (L. E. 1, Q. B. 115). If a person ships goods on a foreign ship, he commits himself to the powers of the master as these exist by the law of the flag. A bottomry bond executed in a Portuguese port, by the master of an Italian ship over the cargo, before the Italian consul, and without any communication with the English owners of cargo, was held good in the English courts, although by English law it would have been bad, as it was good by the law of Italy. Gaetano and Maria, 1882, L. E. 1, P. D. 137. On this subject, see further infra, § 325, on powers of master.] Joint Ownership in a Vessel. § 324. If the vessel is the property of several persons, then the law of the existing nationality determines the rights of the several co-owners, particularly their right to sell their shares, or to alter their ship's flag.** The question is one simply as to the import of the right of property which these individuals have, and so long as that does not come into conflict with the rights of any third party, which happen to rest upon the law of the place where the ship is, or with the jus publicum of another State, it must continue to be operative. It may also be said, in support of this view, that the individuals who acquired shares in the ship under a particular flag, submitted themselves to the law of this flag. The Congress at Antwerp *^ resolved upon this proposition, which certainly is wide enough, and perhaps is too wide in its scope, viz. : — " La hi du jpavillon rigit, en touspays, les diffdrends relatifs au navire et cc la navigation, qui se produisent entre les copropridtaires, entre les propriitaires *" See, e.g. German Code of Comm. § 470. "Every co-owner may sell his .^ Of course, the ship's flag calls the attention of third parties to the law of the home port of the captain. But, upon the whole, there still are cases of necessity, which are somewhat differently defined according to local ideas, in which the captain will have the power, without special authority, to bind the owner. Thus, to frighten third parties from bargaining with the captain, by holding out to them the possible application of a foreign law, which will be prejudicial to them, may be very disadvantageous to the owner himself, in a case of pressing necessity. But, by tlie provision of the German Code quoted in note 47, it is only the party contracting in hond fids who would be protected even in such cases. The man who was aware of the limitations imposed by the law of the foreign flag, of a more stringent character, would not be protected. Of course, the lex loci actus does not touch any question of the responsibility of the captain to the owner. If, however, it is proposed that the law of the place where the ship is ** should not be taken into account at all,^" on the one hand we should give persons, who have made advances to the master in terms of a law that is *^ This distinction between personal responsibility of the owner and the power of the master to dispose of the ship seems to be familiar to the law of England. Cf. Westlake-HoltzendorfT, § 141, and Foote, p. 336. What is true of the sale of a ship must also be true of any obligations, so far as they may result in the forced sale of the ship. The decision of the Supreme Ct. of Comm. of 5th March 1877 (Dec. xxii. No. 21, p. 98), which apparently lays down the general proposition that the liability of the owner for acts of the captain is regulated by the law of the flag, is very easily reconciled with what we have said in the text. The pursuers demanded that the German owner should be made liable even to the extent of his "fortune dc terre," because this was the rule of liability by the law of the place where the captain had made the transaction in question. This demand the court rejected for the best of reasons. Wagner, p. 137, declares in favour of the application of the lex fori. •»« The right of abandonment is always to be tested by tho law of the flag. Judgment of the Queen's Bench of 27th Nov. 1865 [Lloyd v. Guibert, L.R. 1, Q.B. 115] cited by Westlake, Rev. vi. p. 394. '"■ See German Comm. Code, § 500 : "The owner who has restricted the statutory powers of the master, can only plead that these restrictions have been exceeded, in questions with third parties, by showing that these third parties were aware of the restrictions. ■•5 MacLachlan, Merchant Shipping, pp. 169-180, holds, without any distinction at all, that the law of the flag must be the only rule, since (1 ) we have here to deal with a public legal relation, and not with an authority given simply by contract ; the captain is a "public agent; " (2) the provisions of maritime law would be meaningless, if they were not to be recognised beyond their own country ; (3) every contracting party has notice of the law that will rule his case, by the flag which the ship flies ; (4) the principles of private international law have no appli- cation to maritime law. I think that these arguments in part go too far, and in part fail to meet what is laid down in the text. ^^ There can be no reference to the law of the place where the contract is made, if this should happen to be different from the place where the ship is. °° It is obvious that the law of the home port may set itself above these principles, which we have dwelt upon in the text with an equitable consideration of the rights of third parties contracting, and may require them unconditionally to obey the law of the flag, e.g. in so far § '^26] POWERS OF THE CAPTAIN. 715 foreign to them, occasion to make use of any rights of seizure or arrest that they may have, to the serious prejudice of the owner and those who are interested in the cargo. The existence of such rights of arrestment the law of England and that of North America are, for instance, inclined to test by the le,z rci sitm, even in connection with the personal liability which is at the bottom of such claims. On the other hand, we should at once fall into conflict with the principles which must be recognised in questions of salvage. For it will often be impossible to ascertain, in such cases, whether a bargain has really been concluded or not, and it is practically absurd to treat cases, in which assistance has been given ex contractu, on an entirely different footing from cases in which it has been given without any contract. ^1 [By the law of England and Scotland, the power of the master to sell or bond a ship is to be determined by the law of his flag. (MacLachlan, p- iSO ; Westlake, § 219 ; Lloyd v. Guibert, 1865, L. E. 1, Q, B. 115 ; and Gaetano and Maria, 1882, L. E. 7, P. D. 137. In the former case it is said "reason and convenience are certainly in favour of holding that the authority of the master to bind his owners should be fixed and uniform according to the law of his flag, which is known to both, rather than that it should vary according to the law of the port in which the ship may happen for the time to be." This doctrine does not depend, however, on any " law maritime," a position which is now entirely exploded, but is the result of the best consideration of British jurists for the interests of all concerned. It is, in short, the international doctrine as held by British courts, i.e. British law, with no claim to recognition beyond a British forum, except what its expediency and nationality can win for it. The title conferred by an Admiralty Court of proper jurisdiction must be recognised by British courts. See Dr Lushington in the Segredo, 1853 (Spinks Eccl. and Ad. p. 36.] Liability of the Ownee for Delicts and quasi-D'ELici?, of the Master. § 326. Still less is it possible that the liability of the owner for delicts and quasi-Aolicts, of the master should be measured exclusively by the law as tlie form of the bond of 'bottomry is concerned (see §§ 312 and 234 of the Code de Comm. for instance). Then, if the bond has to be sued upon in the country of the home port, the courts of that country must follow the instructions of their own law. But it is possible that the bond should be founded on in an action in the court where it was granted, e.g. by means of an arrestment of the ship. Is this State, or any third State, to be absolutely bound by any provisions which the law of the home port may see fit to enact ? Our object must be to make as little as possible depend on the accident of the place in which the action is brought. Many authors decide the question simply in the way the courts of their own country would decide it. and think only of the case of ships of their own being sued upon bonds in these courts. Mr Justice Byles [and Dr Lushington] as cited by MacLachlan (p. 171) argue that, unless the court decided exclusively on the law of England, English shipowners would be prejudiced. It seems very questionable to me whether this argument is worth much. 5' Phillimore (§ 823) in the interest of bona fides, goes so far as to say that where money is borrowed for some necessary purpose of the ship, the lex loci is sufficient even if it be the case that the lender were acquainted with the restricted powers of the captain. 7l6 BAliS INTERNATIONAL LAW. [§ 32'5 of the home port. That is in direct antagonism to the public safety and to the equality of all before the law, both of which things the State must study to maintain within its own territory. A seagoing ship is an engine often of great power, and capable of doing great damage to person and property outside itself. If this or that foreign State sees fit to discharge the owner of all liability for reparation, and to refer the injured party to the master, who is often unable to make good the loss, should we, in whose country the owner is liable, be forced to concede such a privilege to foreign ships and foreign owners ? Of course, we cannot go so far as to hold the foreign owner personally liable without any restriction, because in his person the owner is not subject to the foreign law of the place where the delict was committed. But it is quite consistent with a rigorous observance of the due limits of the competency of the jurisdiction of different States that the ship should be liable, if the law of the place where the damage was done declares either that the owner is liable without limit, or liable up to the value of his ship. But again, on the other hand, there is no necessity for enlarging the liability of the owner beyond what the law of the place where the damage has been done allows, even if the law of the home port sanctions the larger scale. The law, which allows the more extensive liability, does so in the interest of public security, not for the purpose of fining the owner. If, then, the law which undertakes locally to ensure the safety of the public, contents itself with a slighter liability, we may hold that there should not be an additional liability in accordance with the law of the flag.^^ In the results at which we arrive we see a reflection of the provisions, which are being more and more adopted in the legal systems of individual States, with some differences no doubt in detail, without regard to private international law. The ship herself makes the owner liable only, however, to the amount of her own value. The freight which has been earned is, however, in such ques- tions an accessory of the ship in so far as the law of the place where the damage is done pronounces it to be so, and in so far as the freight is secured by a right of retention or by impledgment, or as an outstanding claim of debt is subject to the law of the place where the damage is done, or to any other law similarly expressed. "We shall consider hereafter what the result should be, if the damage is done on the high seas. The view which is most extensively held at the present time, but which ^^ Any statute, therefore, which introduces a liability confined to the value of the ship, proceeds entirely in conformity with the principles of private international law, if it extends that liability to the vessels of foreign nations, in so far as the event that raises liability has taken place within the territorial waters of the State. See the English Mei-chant Shipping Amendment Act 1862 (25 and 26 Vict. c. 63, § 54) : ' ' The owners of any ship, whether British or foreign." Originally this implied an indulgence for foreign vessels : before its date it was not the statute law, but the common law maritime, that was applied to them, and it was held that this implied an unlimited liability. But by English law the liability of the owner docs not at present extend to the full value of the ship (see Wagner, p. 137). Asser, § 110 ad fin. finds in the English enactment we have quoted a conflict between the positive law of the statute and international law, as the latter is to be deduced from general principles. § '^27] COLLISIONS. 717 cannot surely be fully reconciled with the necessities of public safety in each locality, holds that even in claims upon delict the liability of the owner should be determined by the law of the owner's home port exclu- sively. To this eiJect Lyon-Caen (J. ix. p. 258), Abbot (p. 256), Mac- Lachlan (p. 175), Lewis (pp. 48, 49), on § 451 of the German Code of Commerce, and the Supreme Commercial Court of Germany, have all expressed themselves.^* There must necessarily, however, be some doubt cast upon the effect which judgments on this question, pronounced in suits brought in the forum domicilii of the owner, and not in that of the delicti commissi, should have on our conclusions. The considerations which may be advanced on behalf of the lex loci actus are in such a case apt to fall into the background.^* On the other hand, the distinction between the unlimited liability of the owner, and his liability as limited by the value of the ship, has not as yet been taken with sufficient sharpness in any judgment.^^ Wagner, of course, in this case also declares in favour of the lex fori. Claims arising out of Collisions. Collisions in Hakbouks and Teeeitoeial Watees. § 327. Claims raised on account of collisions®^ between ships,®'' which have arisen so frequently of late {Anscglung, Zusammcnstoss, Ahordage), are claims ex delicto or quasi ex delicto, or claims which arise out of the general guarantee or safeguard, which the law desires to afford to persons and property. There can, therefore, be no reasonable doubt that, if the collision occurred in any harbour, or in waters subject to any definite sovereign ^ Judgment of 21st Sep. 1878 (Dec. ixiv. § 26, p. 83) : " In so far as the owner is sued on such grounds by third persons, the action must be founded on some obligation created by statute, and not ujion any contract or delict, and the owner may require that he shall be judged by the law of his own country in this matter, the only law to which he has subjected himself in carrying on his business. ^ See Story, § 2866, who very prudently expresses himself thus even in reference to contract debts : " But it is far from being certain that foreign courts, and especially the courts of the country where the advances or supplies were furnished, would adopt the same rules, if the lender or supplier had acted with good faith, and in ignorance of the want of authority of the master." See, too, Brodie's excellent remarks cited by Story. [Brodie on Stair, ii. pp. 955, 956.] 55 The judgment of the German Imp. Ct. (i.) of 12th July 1886 (reported by Seuffert, xlii. § 88 and in J. xiv. p. 339) rests upon a non-recognition of this distinction. It proceeds on the view that the provisions of §§ 451 and 736 of the German Comm. Code, as to the liability of the German owner for third persons not regulated by any contract, should be applied by the German judge, without taking into account whether the ship, at the time of the event which caused the damage, was actually within the territory of some law which has provisions of a different tenor. This judgment, however, is right in holding that the lex loci must determine questions as to the obligations to take a pilot with powers of navigating the ship. ^ This («MsaOTOT«n4 provided that no shipowner, be he British or foreign, shall be liable beyond a certain amount per ton of his ship's tonnage for damage caused by the improper navigation of his vessel ; unless there be actual fault or privity on the owner's part, a case which is not likely to occur. This is applicable wherever the locus of the damage may have been. By § 57 of the same Act it is provided that, when foreign ships are within British jurisdiction, the regulations for preventing collisions prescribed by the Act shall apply to them, and in any cases arising in any British court of justice concerning matters happening within British jurisdiction, foreign ships shall, so far as regards such regulations, be treated as if they were British ships. In the case of collisions in foreign territorial waters, the law of England will not give damages unless both the foreign and the English law concur in holding damages to be due (Abbot as cited in note 58 ; Westlake, § 197; The Halley, 1868, L. E. 2, C. P. 193). In this case it is, however, observed that the English court will enquire into the state of the foreign law, " as one of the facts upon which the existence of the tort, or the right to damages, may depend." This principle is illustrated by a series of cases. By the law of England, as expressed in § 388 of the Merchant Shipping Act of 1854 (17 and 18 Vic. c. 104), no owner nor master of any ship is to be "answerable to any person whatever for any loss " occasioned by the fault of a qualified pilot within the district where the employment of such a pilot is com- pulsory. Now the employment of a pilot on entering the port of Havre is by French law compulsory : a collision occurred there between two English ships, and an action of damages was raised in the English courts. The ^ See German Oomm. Code, § 740, whicli discharges the owner, if, while the ship is under the care of a compulsory pilot, the crew of the ship have done their duty. The law of France and the practice in England are otherwise. Of. Kiilms, Zeitschr. fur Handelsr. xii. p. 421. ^ According to the judgment of the Sup. Ct. of Comm. of the Empire, of 21st September 1878 the law of the flag should generally be applied. Wagner is for the lex fori on this point also (p. 137). The practice in England is to apply the lex fori, but to restrict its operation. The obligation of reparation, which must exist by the lex loci actus as well, will not be applied by the English courts to any greater extent than the law of England allows (of. Westlake, Rev. Ti. pp. 394, 395)- This is quite in accordance with the treatment which the English courts bestow on claims ex delidis arising in international law generally. Abbot, p. 580. «5 The Moxham, 1876 (L.R. 1, Prob. Div. 43 and 107, J. iii. p. 381) ; Fiore, Dir. pubb. ii. § 1047. 720 BARS INTERNATIONAL ZAtV. [§ 328 defendants pleaded the compulsory pilotage. The court, however,^ — after being informed by skilled evidence that the functions of a pilot in French waters were not the same as in England ; that, whereas in England the pilot supersedes the master in the control of the conduct of the ship, and must not be interfered with, "' except under most extraordinary circum- stances," by the master, in France by French law he does not supersede the master, but acts as his adviser only, — refused to give effect to the plea of non-liability, even although, as matter of fact, the master had given up the charge of the vessel to the pilot. The court ascertained what the relation of master and pilot was by French law, and having ascertained that fact, they applied the law of England, Augusta v. Chilian 1887 (5, Law Times Eeps. p. 326). The same rule had been followed in the case of the Guy Mannering, 1882 (L. R. 7, P. D. 52 and 132), where the locus of the collision was the Suez Canal, the rules of which as to the import of compulsory pilotage are similar to those in force in France, and in the case of the Agnes Otto, 1887 (L.E. 12, P.D. 56), the locus of the collision in that case being the Danube. Carrying out the principle enunciated in the case of the Halley, the English courts will not give damages against a foreign ship under com- pulsory pilotage in the full sense, whatever the law of the foreigner's flag may lay down on the matter. Westlake, § 204, and cases there cited.] Collisions on the High Seas. § 328. But what are we to say of collisions on the high seas ? The ordinary rules as to delicts and g'wasi-delicts are not applicable in such cases, because there is no distinct territory subject to some sovereign power, in which the act, resulting in damage, has been done. One can well understand that in this case recourse has frequently been had to the lex fori, as a way out of the difficulty.^ But to apply the lex fori is to make this important obligation to give reparation dependent on the one hand on chance, or, on the other, on the caprice of the pursuer. It involves therefore a plain injustice, and accordingly Lyon-Caen (J. ix. p. 600) declares the common law of all nations, which knows no obligation for reparation except on account of the culpa of some individual, to be appli- cable, and alone applicable, to all collisions on the high seas. "We cannot. ^ See Asser-Eivier, 113, and the French judgments given by Lyon-Caen (J. ix. p. 601). Wagner (p. 14) is of course of this view. To the same effect, too, the grounds of judgment in the decision of the German Imp. Ct. (i.) of 12th July 1886 (Seuffert, xlii. § 88), already referred to. See, on the other hand, the editor's note in J. xiv. p. 442. A judgment of the Sup. Ct. of App. at Liibeck of 30th Jan. 1849, Bremer Samml. vol. ii. pt. 2, p. 8 held that § 10, subsec. 1, of the Hanseatic maritime code, according to which, in the case of an acci- dental collision, both ships take equal shares of the loss, was applicable to a collision between two foreign vessels. See C. de Paris, 16th Feb. 1882 (J. x. p. 145). See, on the other hand Cluuet (J. X. p. 148) : " Comment soutenir en droit que par cela seul qu'un tribunal est compiUrit pour connaitre d'une of aire c'est la loi territoriale qui doit Ure appliquie. " ? 328] COLLISIONS ON THE HIGH SEAS. 721 however, in modern times, think of appealing, in the matter of private law, to any such universal law, particularly in niaritime affairs. We shall be more likely to attain a sound result by the following reasoning. Since no law can lay obligations on foreign persons who are not within its terri- tory, we cannot require more from any one who is sued than what his own law, the law of his domicile, imposes on him ; and again, because a law which apportions damage that is purely accidental must rest solely on equitable considerations, which would not be satisfied if native ships were unfairly prejudiced, no larger reparation can be dejnanded than the law of the pursuer's domicile would give in similar cases to the owner against whom the claim in question is being made. The Antwerp Congress of 1885 {giiest. 60, Actes du Congris, p. 145) pronounced precisely to this effect, viz. : — " L'ahordage en pleine mer, entre deux navires de mime nationaliM, est ^igli par la led Tiationale. " Si les navires sont de nationality dijfirente, chacun est ohligi dans la limite de la hi de son pavilion et ne pent recevoir plus que cetfe loi lui nttrihue." In practice an inclination to adopt the principle has already manifested itself in some cases,^'' and it has been most recently approved by the Institute of International Law in 1888.«8 69 ^ For this solution of the point, see Lewis, Zeitsehr. fur Handelsr. vol. xxxii. pp. 98, 99. Orassi, Archivio giuridico, vol. xxxix. pts. 1-3, pp. 211 et seq. ^ See Trib. Comm. Brest, 22n(l Jan. 1887, and the confirmatory judgment of the Court at Rennes, 21st Dec. 1887 (J. xv. p. 80). These apply the law of the "navire abordeur." «»• A judgment of the Sup. Ct. at Berlin, of 25th October 1859 (rep. by Seuffert, xiv. § 197), in conformity with the view adopted in the text, takes as the primary rule the law of the home port of the ship against which the claim is made. The court thought that it was right also -to have regard to the law of the place where the suit was depending, l?ut it is to be noticed that, in the case on hand, the suit was proceeding in the country to which the home port of the injured vessel belonged. See Story, § i2Sg. He liesitates, however, between our view of reciprocity and the lex fori. Although the judgment cited by him in his note 3 to § .423 seems to favour the latter nile in the reasons given for the decision, it is not by any means conclusive, because in the particular case the forum and the domicile of the defender were identical, and, according to the law of the forum, tlie defender was not required to make good the damage that had been .caused. On the other hand, the judgment of the Court of Rouen, cited by Story in § 423 does not, as a matter of course, allow a foreigner to claim protection for his trade-mark, or to claim to have it ^ But it is different in so far as the act may be made the subject of a civil suit or a •criminal proceeding, as "Concurrence ilUgale." See, for instance, the English statute of 1887 150 and 51 Vict. c. 28, § 3, etc.]. ^ In the case of a man's right to use a name, the result would be different ; no one ■who had right to it would be able to interdict another who had right to it from using it in this country or abroad. For the right to a name is by no means so exclusive as the right to a trade-mark. There can be no certainty that several persons do not bear the same name and 4rive the same trade at different places. 29 See Laurent, iii. § 352 ; Stern, in J. viii. p. 134, on the Dutch law of 25th May 1881, which knows nothing of any limitation. Neither does the law of Italy (cf. Fiore, J. ix. p. 502 ; X. p. 22), nor the law of England (see Kohler, p. 417) [46 and 47 Vict,.c. 57, §§ 62 and 103]. 3» The consideration which dictates this limitation of the right to protection has generally leen that it was desired to have a means of inducing other States to join in reciprocal treaties for protection. If we assume that foreigners acquire right to register their marks solely by virtue of some treaty published so as to have statutory effect, then any registration made "before such publication is null, and can have no operation after the publication takes place : it must be re-registered. See Trib. corr. Seine, 13th August 1875 : Pouillet, § 333, who is, how- ■ever, inclined"to save registrations made after the treaty is concluded, but before it is published. 784 bar's international LAIV. [§ 358 registered.^^ The determinant consideration, however, is not the nationality of the person, but the seat of his manufactory or trading establishment. If a foreigner has such an establishment in this country, he can claim a trade- mark ; if a subject of this country has his manufactory abroad, he cannot. It is enough if a person has an establishment, in the true sense of the word,^^ in this country ; he may have other establishments at the same time abroad. The moment we find a trading or manufacturing establishment in this country, the trade-mark registered in our register is a trade-mark belonging to our country, and is to be tested by our law absolutely : it is not a mere accessory mark, whose legal character is dependent at the same time upon the foreign law.^^ The right of the person to the trade-mark itself is, how- ever, acquired by use of it by the person concerned : by the registration lie only obtain a special kind of protection. Hence it follows that the conditions necessary for this protection must be in existence at the moment at which any infringement, for which redress is demanded, takes place. A man who transfers his establishment to a foreign country, accordingly loses this protection, and the man who transfers his to this country acquires it, provided always that he registers his mark. But, of course, a right to damages, once vested, still stands, while an act done in prejudice of another's rights in a trade-mark will not be liable retrospectively to punishment, but the liability to punishment will continue if once it existed. The subject of this country, who acquires a trade-mark by assignment, may register it.^* Juridical persons, corporations, and companies belonging to a foreign country, enjoy the same protection as physical persons.^^ g^^ although, for want of an international treaty, a foreigner cannot sue a subject of this country for using a foreign mark, that subject, on the other hand, who so annexes the foreign mark, cannot acquire any right to it, since his act is an act of unfair trade competition. He has no right, therefore, to prevent any other competitor in trade from using it (Pouillet, TraiU des Marques, § 335), and a mark so wrongfully used, even by a number of persons, does not become a piece of common property which any one may use. Thus, if a treaty for '1 Foreigners have, as a matter of course, an exclusive right to the use of their names in describing their goods, in so far as no other person's name prevents this, and so far as subjects of this country themselves enjoy such rights. See Kohler (p. 414), as to the positive enactments of different States on this point. ^ A mere agency will not be enough. On the other hand, domicile has nothing to do with the matter. (Pouillet, Marques, § 327.) ?^ In art. vi. of the Convention of Paris of 1883 it is provided (2) and (3) : " That country shall be deemed the country of origin, where the applicant has his chief seat of business. If this chief seat of business is not situated in one of the countries of the union, the country to which the applicant belongs shall be deemed the country of origin." If recourse is had, as a subsidiary matter, to the country to which the person belongs, it is still necessary that there should be a subsidiary establishment in that country. 2* Similarly the assignee of a foreign mark and of a foreign firm in France enjoys those rights, which the law of France allows his nation to enjoy : although the cedent would have no such rights according to the international relations in which his country stands. (French Ct. of Cass. 18th November 1876, J. iii. p. 458.) ^^ Thus the fixed practice in France has it (Pouillet, § 330). Without this rule inter- national protection for trade-marks would for the most part disappear. § 359] TREATY PROVISIONS. 785 the protection of trade-marks is subsequently concluded, the foreigner who has right to the mark, may have it registered, and proceed against the subjects of this country if they shall make any further use of it. Pouillet (§ 336) very truly says : " autre chose . . . est la toUrance, qui finit a Id, longue, par devenir . . . une preuve d' abandon volontaire; autre chose Vimpuissance d'agir." ^^ International Tebaties. § 359. A large number of treaties now secure to the subjects of foreign States the right of registration. The man who has an establishment in any State counts as one of its subjects for the purposes of these treaties. It seems doubtful whether this needs to be the leading establishment, as Kohler (p. 430) thinks,^'^ since the rights of a subject may be fully constituted although the establishment is only a subsidiary one. It may be that, even without a special treaty on the subject, the law^^ of some countries should allow foreigners to claim registration for their trade-marks, if in other States a like measure of protection is reciprocally extended to their subjects. This reciprocal protection may either be given by treaty, or simply by statute, or secured as a matter of custom by a course of usage. The protection does not need to be precisely the same in both countries; but there is no reciprocity if the foreigner may be refused leave to register at the pleasure or at the uncontrolled discretion of the officials of the other country. By the law of Germany, reciprocity will be proved as a fact by notice given by the Imperial Government. This notice is the only recognised means of proof in a German court on the matter of reciprocity : the German courts have not to decide the question of ^ This was the opinion of the French Avocat Gin6ral (Bedarride), and the law of Belgium is to this effect. (Pouillet, § 3-37. ) But the French judgments cited by Pouillet, and art. 28 of the Franco-Dutch treaty of 1873, take the opposite view. But for the view adopted in the text, see Ct. of Cass, at Turin, 3rd March 1880 (J. ix. p. 93, and Fiore, J. ix. p. 507). See, too, Norwegian statute of 26th May 1884, § 15 (6). " If the trade-mark of some foreign trade is refused registration in respect of the provisions of § 4, No. 5, i.e. prior registration of the same or a similar work, and if the foreign applicant shall prove in the process against the owner of the mark already registered, that this mark was a mark originally used by him (the applicant) which was appropriated by the other in knowledge of the facts, he may be declared, by a judgment of the court, entitled to have the mark registered, with exclusive right to its use for the kind of goods for which he was using it when the other person got protection. The action cannot be raised after the expiration of six months from the date when protection was given to the other. " This enactment is only operative if it is applied by royal proclamation to some particular foreign State which makes corresponding concessions on its side. To the same effect is the Swedish law of 5th July 1884. (Translated and communicated by Pappenheim in Zeitschr. fur des gesammte Handelsr. xxxiv. pp. 212-220.) 2' See Braun (J. viii. p. 390) on the Belgian law of 1st April 1879. If there is only abranch establishment in Belgium, then, according to Braun, the Belgian law regards the goods pro- duced by the principal establishment as foreign, and the mark upon them, apart from special treaty provisions, as a foreign mark. 28 See Kohler's accurate discussion, at pp, 424 and 462, of the question of reciprocity and treaties. 3d 786 bar's international law. [§ 360 reciprocity as a matter of fact, and considering the peculiar difficulties which often surround the question, this is a good practical rule. Lastly, all foreigners must be allowed the protection which the law gives against fraudulent imitations, without requiring any registration at all. This distinction is very sharply and very soundly taken by the law of the United States. The civil protection of their Equity Jurisdiction is given to all foreigners without distinction,^* whereas the special protection given to foreigners by the Eegistration of Trade-Marks Act of 8th March 1881 is only available for persons domiciled in the United States, or in a country which guarantees similar rights to citizens of the United States. In German law little heed is as yet paid to any such protection of the individual's rights which is not given to him by the statute,*" a fact which is rightly deplored by Kohler both often and keenly. Peotection for Goods Described or Marked with a Name or a Firm. § 360. We have already noticed (p. 216) that the name of a person must in international law be regarded as something with which nature has endowed him, and not as the outcome of a privilege which is limited to a territory. But this assertion will only escape contradiction in so far as the name is intended to serve as a means of distinguishing persons and families one from another, and not in so far as the use of it or the imposition of a trading firm upon goods is intended to protect them from imitation. In this latter aspect the French Court of Cassation,*^ by an unbroken course of practice, has refused the protection of the law of France to those who cannot claim a right to enjoy droits civils in the sense which that term bears in France,*^ while the marking of goods with names or with firms is treated on the same footing as marking them with trade-marks in the proper sense. At the same time, it has always been recognised that in so marking goods falsely with the name of a foreigner, apart altogether from questions of protection which rest on treaties, a deceit is practised upon the public, the buyers of the goods ; and that therefore, although the foreign manufacturer 2' See Eohler, pp. 417, 418 (for a French translation of the statute of the United States, see J. ix. p. 386). On the law of England, see Phillimore, § 580c. *" By a French statute of 26th Nov. 1873, one who is proprietor of a trade-mark may have an official attestation of the mark appended to the goods prepared hy him and marked with the mark in question. Then, by the law of France, any one who counterfeits this mark with the official attestation, in whatever country he does so, may be prosecuted in France, because what he has done is to counterfeit an official mark (see Pouillet Traiti des Marques, § 340). It may be doubtful whether it is desirable to follow this French legislation. The extension of criminal measures to the acts of foreigners in a foreign country must be confined within very narrow limits. The true advantages of an international treaty cannot be reached in so simple a way. ^ See Pouillet, § 451. The inferior French courts often took the opposite view, and so too, apparentlj', did the practice in England. ["Every subject of every country . . . has a right to apply to this court to have a fraudulent injury to his property arrested," Collins Co. v. Cowen, 3 B. and J. p. 428 ; Sebastian, pp. 74, 75.] ^2 Pouillet, § 455, Lyon-Caen and Renault, § 3343, were of a different opinion. § 361] ENGLISH MERCHANDISE MARKS ACT, 1 887. 787 or trader has no independent right of action, and damages cannot be awarded to him, still, under certain circumstances, official criminal procedure for fraud or deceit iipon the public or the particular purchaser {tromperie) may be instituted against a man who has illegally used the name of a foreign manufacturer in order to describe his goods. The French law has likewise properly recognised that a Frenchman who has acquired right from a foreigner ^^ to use his firm,^ can take proceedings for any misuse of this name or firm just in the same way as if the name or firm had originally belonged to him. The rule " nemo plus juris in alium potest transferre quam ipse hahet " does not apply to the case. The foreigner had full right to the name, but could only make it available in certain directions. *^ If we give foreigners protection for trade-marks in the proper sense, which are plainly more of an artificial creation of the law, we must also give them such protection as is known to our law in the exclusive use of their names and firms for describing their goods. The right to bear the name and to use the firm must then be decided by the foreign law, i.e. the law of the State to which the foreigner belongs, or of the State in which the firm has its trading seat, as the case may be. In such a case, if some subject of ours have a good right by the law of this country to bear the same name, the foreigner's right may become inoperative.*^ Convention of Paris, 1883, and Peotocol of Eome, 1886. The English Meechandise Marks Act of 1887. Final Eemaeks. § 361. In conclusion, we must again revert to the International Con- vention of Paris and the protocol drawn up at Eome in connection with it.*^ We shall be helped to appreciate these arrangements on the one hand by the English Merchandise Marks Act of 1887 (50 and 51 Vict. c. 28), which has been passed since this date,** and, on the other hand, by Meili's new work, although I cannot altogether agree with him in the value which he sets upon this Convention. Meili (p. 66) calls attention to the fact that Switzerland, and, if she should give in her adhesion to it, the German Empire also, will be compelled e.g. to give protection, in accordance with the rules of French law, to French tickets or labels in contradistinction to trade-marks in the proper sense, while Swiss and German tickets or labels are not protected in Switzerland and Germany respectively. We should « But the name of a foreign manufacturer will receive in France the same protection as the iirm-designation of Frenchman, if the foreigner has an authorised domicile in France, or if a diplomatic treaty makes provision that he should have it, or if (§ 9 of the statute of 26th Nov. 1873) Frenchmen enjoy by law this same protection in the country to which the foreigner belongs. See Lyon-Caen et Eenault, Dr. civ. ii. § 3342. « A French agent who merely represents the foreigner will not have this right. « Pouillet, § 458. , . , , „ j 46 So French law. See Pouillet, § 454 : " Ze nom etant lapremiire et la plus personelle de tautes Us marques." See, further, the German statute, § 20. • "! J xiii. p. 257. 48 Translated into German by Cruesemann, solicitor, Berlin, 1888. 788 bar's international law. [§ 361 be transgressing the limits which are necessarily imposed upon us, if we were to go into an enquiry whether Switzerland and the German Empire would find it expedient to do away with the distinction between labels or tickets and trade-marks. Let us assume this to be so, and that for the future, therefore, no objection can be taken to the general International Convention on the ground of any such miscarriage. But this Convention, and in particular the protocol drawn up at Eome for supplementing it, go much further. Art. x. of the Convention provides that any industrial product falsely bearing the name of any locality as indication of the place of origin may be seized on importation into any State of the union, on this condition, viz.: that this shall only be done "when such indication is associated with a trade-name of a fictitious character," or assumed with a fraudulent intention." This qualification was deleted by the protocol drawn up at Eome. Accordingly, as Meili very rightly points out, the Convention has become to some extent an universal criminal statute directed against commercial dishonesty, or, as we may term it, a general statute against false pretences in trade. That state of matters has important aspects, especially if the Convention sanctions the municipal law of any of its members in detaining goods, the marking of which seems to offend the provisions of the Convention, on an order from the Attorney General's office {Staatsanwaltschaft), without any application having been made by any injured party, or, as the English statute provides in the case of offences against its provisions, by the officers of H. M. Customs as part of their ordinary duties. It is hardly possible that in such matters subordinate officials should not make mistakes, which may, in the most irritating way, injure foreign manufac- turers and dealers. Thus, by an overstrained measure of protection, the door will be opened to deceptions, extortions, and possibly to bribery, and what seemed to be an advantage for honourable manufacturers may turn out to be to their prejudice in a way that was not dreamed of. The matter is confined within definite limits, if all that is forbidden is, as in the case of the English statute [50 and 51 Vict. c. 28, § 17], the importation of foreign goods bearing to be of British manufacture, and it is only goods which are suspicious in this sense that are to be seized by the Customs officers. But how are English officers to ascertain with certainty what is the place of origin of all other kinds of goods, so as to determine their genuineness ? A perfectly general law of that kind must operate differently in different places, according to the spirit which animates the officials of the different States. It goes so extraordinarily far into the general theory of criminal law, as the new British statute shows, and affects so vitally trade and commerce in general, that an International Convention which is responsible for such measures of seizure, seems to have very serious and dangerous aspects indeed.*® ^ Unjustifiable seizures and more sweeping measures, alleged to be for- the better carrying out of the Convention, may damage importation more than a protective duty would do. NOTE GG] ENGLISH MERCHANDISE MARKS ACT, 1 887. 789 The course on which the Convention has embarked leads ultimately to an universal criminal enactment against the misdescription of goods in commercial dealings, which would make any special protection of trade- marks a superfluity. Such a criminal enactment is in truth a matter for the municipal law of each State, but does not belong to international law. The only matter of international interest is that the imitation of foreign products should be made liable to punishment in the same way as the imitation of our own products is punishable, or at least that such imitation shall not escape punishment, solely on the ground that the product which has been imitated is a foreign product, although it may be that practical consider- ations will prevent foreign and native products from being treated exactly alike. But because the matter thus in question is substantially a matter of domestic criminal legislation for each particular State, everything that sails under the flag of an " International Congress " is not on that account to be at once accepted as desirable. Again, new and far-reaching criminal enactments and regulations of matters of procedure, which limit the freedom of trade, should not be allowed to escape from the ordeal of a thorough test within each individual State on the ground that as "international" measures they are expedient. "We regard, however, the recommendation ^^ that counterfeit goods (i.e. in practice goods which are alleged to be or which seem to be counterfeit) should be seized," as a direct invasion of the domestic law of the individual State. Powers of this kind will turn out to be something quite different in an absolute State, where officialism is paramount, and in which legal remedies against officials are narrowed or shut off altogether, from what they will be found to be in a country where the official system is subject to a jurisdiction that is really independent. NOTE GG ON §§ 357-361. TRADE-MARK AND TRADE-NAME. [The Act of 1883 (46 & 47 Vict, c, 57) provides for the registration of trade-marks as well as for that of patents and of designs. § 62 (1) ^ The words used in the Convention — somewhat hesitatingly— are " may be seized, " and not "shall." But we can trace in the language a recommendation that they should be seized. ^ An addition to art. x. of the Convention, which was made at Rome on the motion of the Belgian delegate, shows what may be the results in such congresses of keeping in view- exclusively the wishes of the interested parties. The clause provides that manufacturer A of country X may order goods of manufacturer B of country V, and with B's consent mark them with his own (A's) name and place of residence. No subjective legal wrong, it is true, is in such a case suffered by the parties. But the fraud upon the public and their losses, and the injury done to competitors, may be all the worse. The French and Prussian delegates properly protested against this addition. If manufacturers and merchants wish to enjoy special protection under the sanction of the criminal law, they must not combine to cheat the public. See judgment of French Court of Cass. 23rd February 1884 (J. xi. p. 398). Of course, the case is different if the person who gives the orders puts his name on the goods as a dealer merely, and not as the manufacturer, Ct. of Toulouse, 8th December 1886 (J. xiii. p. 723, and Clunet, iUd. p. 724). 79° bar's international law. [note go provides that the comptroller may register a trade-mark, on the application of any person, or on behalf of any person claiming to be proprietor of it. § 103, to which reference has already been made {supra, p. 771), makes provision for the registration in Britain of trade-marks already registered in such foreign countries as shall be included in an Order in Council made by Her Majesty under the provisions of the statute. The third subsection provides that the application for registration must be made " in the same manner as an ordinary application under this Act ; provided that, in the case of trade-marks, any trade-mark, the registration of which has been duly applied for in the country of origin, may be registered under this Act." This subsection seems to introduce an important change in the law ; it had formerly been held that it was for the courts of this country, when application was made to them for registration, to decide whether the mark was of a kind that could be registered. In the case of Farina (2), 1879, 27 W. E. 45fi, Vice-Chancellor Hall refused to allow the registration of a mark, because in his opinion it bore too close a resemblance to a mark previously registered, and this he did although the German court, which was the court of the domicile of both parties, had held that the similarity between the two marks was not so close as to prevent registration of the second. But this new enactment has been said (per Mr Justice Stirling, in re Californian Fig Syrup Co. 1888, L. E. 40, Ch. D. 620) " to relieve the foreigner who applies in this country for registration from certain of the liabilities of subjects in this country." This Mr Sebastian (p. 412) interprets to mean that the qualifications of a trade-mark for registration are to be gathered, not from British law, but from the foreign law of the place of the original registration, and in a more recent case {in re Vignier, 1889, L. T. Eeps. N. S. p. 495) some encouragement is given to this view. The law of England and that of Scotland had always afford.ed to foreigners the same protection for their trade-marks, either by way of actions of damages or by injunction, i.e. interdict, as was secured to native subjects. (Collins Co. v. Brown, 1857, 3 K and J. p. 423, and Singer Manufacturing Co. v. Kimball & Morton, 1873, Ct. of Sess. Eeps. 3rd ser. xi. p. 267.) But by the 77th section of the Act of 1883 it is provided that " a person shall not be entitled to institute any proceeding to prevent or to recover. damages for the infringement of a trade-mark unless, in the case of a trade-mark capable of being registered under this Act," it has been so registered. This section would seem to apply (1) to all trade-marks belonging to countries with which Her Majesty has made arrangements under § 103, and (2) to all trade-marks belonging to other foreign countries which have the characteristics required for registration in England, since, under § 62, any person, without distinction of country, may apply for registration. Such persons will have no remedy without registration ; but in the case of a foreigner whose mark has become well known in this country, if we suppose that he does not belong to one of the favoured countries, and, in addition, that his mark does not satisfy the conditions NOTE GG'\ TRADE-MAKK AND TRADE-NAME. 791 for British registration, he will not necessarily be deprived of remedy. If the infringement amounts to a fraud, he will be entitled to proceed against the person infringing at common law, just as one might do if the character of the infringement complained of were, instead of being the use of a trade- mark, the adoption of a particular style of packing or " get-up." See the cases quoted by Mr Sebastian, p. 389. British agents for a foreign firm will be prevented from selling in England goods manufactured by their foreign principals, if they bear a false mark, to the injury of other manufacturers (Siegert v. Findlater, 1878, L. E. 7, Ch. D. 801), and an injunction will be granted against foreign manufacturers and their agents to prevent them from sending to Britain, or to India, or to any country with which the person complaining has an established trade, goods bearing an imitation of a British trade-mark, fraudulently adopted by the foreign manufacturer. By the Merchandise Marks Act of 1887 (50 & 51 Vict. c. 28) stringent provisions are made for the punishment by the criminal law of offences connected with trade-marks. By § 2 every person who forges a trade- mark, or sells or has in his possession for sale, or for trade or manufacture, any goods marked with a forged trade-mark, or with a mark so closely resembling a trade-mark as to be calculated to deceive, shall be guilty of an offence against the Act, and to forfeiture of the "chattel, article, instrument, or thing, by means of or in relation to which the offence has been committed." On the ordinary territorial principles of criminal law, this section will be applicable to acts done in Britain, whatever may be the nationality or domicile of the person who commits them. § 11, however, provides that any person who, being within the United Kingdom, procures, etc., or is accessory to the commission, without the United Kingdom, of any act which, if committed in the United Kingdom, would be a 'misdemeanour under the Act,- shall be guilty of that misde- meanour as a principal. Again, by § 16, on the narrative of the expediency of making further provision for prohibiting the importation of goods which, if sold, would be liable to forfeiture under the Act, provision is made for the seizure at the Custom House of the goods liable to forfeiture under § 2, and of all goods, which are truly of foreign manufacture, but bearing a name or trade-mark which is the name or the trade-mark of a manufacturer, dealer, or trader in the United Kingdom, unless such name or trade-mark is accom- panied by a " definite indication " of the country in which the goods were made. The powers of seizure are carefully fenced by a series of subsections.] trentb aBooft. LAW OF SUCCESSION. I. GENERAL PRINCIPLES. SUCCESSION ab intestato. The vaeious Theories and the Geounds on which they eest. Personal Law or lex rei sites for Immoveable Peopeety. The Idea of an Univeesal Succession decisive in favoue of the Peesonal Law. § 362. The law of succession prescribes how the property of one person on his death passes to another. This transmission we may conceive as being regulated either by (1) the law of the place in which the different assets of property actually are at the death of the person who owned them, or (2) by the personal law of the late owner. In support of the lex rei sitce, apart from the old argument of the statute theory, (according to which it was said that the question was one as to how things were to be acquired, and that no law but the lex rei sitce could settle questions about things,) it has been urged, on the one hand, that the law of succession is a purely positive law, created by the State or the community, and that its validity cannot therefore be extended beyond its own territory ,1 and, on the other hand, that every statute which deals with succession has a political and social import, and that therefore these statutes are pre-eminently jus publicum. It is said that the social, and therefore the political, circumstances of a country are in no small measure dependent on the shape which the law of succession takes. As instances, we may notice the rights of the oldest child, the legality or illegality of entails, the contrast between full powers of testamentary bequests and limited powers. But, as matters of fact, these considerations are only ^ See, against this position, whicli is still held by Demolombe, i. § 91, and Demangeat, Fiore, § 387. 792 § 362] SUCCESSION AB INTESTATO. 793 Cited in support of the supremacy of the lex rei sitm over immoveable property. Succession in moveables has universally, ever since the days of the Middle Ages, been determined exclusively by the personal law ^ of the deceased at the time of his death, while the logical consequences of the general principle are kept intact by the application of the fiction " mobilia ossibus inhcercnt." But, as regards the former of these considerations, it is simply got rid of by remarking that acquisition by way of succession no more and no less belongs to the positive law established or, more properly, guaranteed by the State, than does acquisition by sale and tradition. Indeed, it is an absolute necessity that property should pass from one generation of mankind to the following, and the law of succession, taking the different shapes which it does take in different countries, does no more than regulate this trans- mission, which is in itself necessary, in different ways. The truth of the second argument, however, we may allow. But it can never prove that the State should subject to its own laws of succession the estate, belonging to one who was not its subject, which happens to be within its bounds. It can never have so strong a social or political interest as to induce it to do so. If the deceased and his family belong to another country, there is no such interest to be discovered at all. What concern is it of this country, if a foreign family, owing to the stupid division of the estate that belonged to the head of the family, be the question one of testament or intestacy, is ruined in its prospects ? Is it not the most convenient course for this country to be content with what the other State provides for its own subjects ? ^ 2 I have not been able to find any authority save Eori, ErUrteruiigen, iii. p. 19 (see, on the other hand, Waohter, i. p. 304), and the dissertation by Zollius (de preferentia statutorum diserepantium), quoted in Schaflfner, 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, pp. 275, 276). The doctrine which many express, that the law of succession is a real statute, is modified by the fiction which they introduce, that moveables are situated at the domicile of the ancestor. The Jus Asdomicum mentioned by Dutch writers, which wjs 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 an universal succession. The place of death is substituted for the place of domicile. When foreigners are recognised as having legal capacity, and the Jus Albinagii disappears or dwindles into a dnty upon succession, we hear of nothing in connection with moveable property except the rule of succession recognised by the lex domicilii. Savigny's view, that it is only a milder form of the Jms Albinagii to determine the succession in moveables by the lex rei sitce, may be disproved historically. Nor can it be urged to disprove that the older writers held the theory of an 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 sitce (Mevius, in Jus Uib. prol. qu. 6, §§ 20-24' ; Carpzovius, Defin. forens. iii. const. 12, def. 13) ; what they there treat of is the moveable pertinents of real property— (3. (/. the stocking of a farm. s We meet this argument in French law. Portalis urges it. But see Aubry et Rau, i. § 81, note 31. See also Laurent, vi. § 148. 794 bar's international law. [§ 362 To this it has of course been replied, " That is quite true of moveable estate ; bur the ownership of the land constitutes the very foundation on which the State is built : in this matter, to recognise the operation of foreign law is to contradict the very conception of the sovereign power of a State." But if the State, in its laws dealing with succession, treats moveable and immoveable estate on exactly the same principles, if, even as regards real estate, it recognises as authoritative any purposes you please expressed by the deceased in his last disposition, if, again, it further permits any division you like of the moveable estate, what justification can we find for introducing that distinction, as a matter of principle, between moveable and immoveable estate into the system of law that is to guide us ? How can we deny to a foreign law, which perhaps may be defended on very substantial considerations, what we concede to the will of the individual in support of which perhaps very little can be said ? * The distinction is not one that can be drawn from the abstract idea of sovereignty : moveables are, just as much as immoveables, subject to the sovereign power of the State, so long as they actually are within its territory. If private international law is to treat moveable and immoveable property on different footings, then the systems of municipal law which are in question, be it that of the State to which the deceased belongs, or that of the State in which the immoveable property happens to be, must them- selves make a fundamental distinction between moveable property on the one hand, and immoveable on the other. That is of course quite possible, and is not unfrequently the case, and was still more frequently the case in the Middle Ages. This circumstance teaches us to understand on the one side the historical development that has taken place in the international treatment of the law of succession, and, on the other hand, the justification in certain circumstances of the theory, which upholds the validity of the lex rei Slice to the present day, limited as the extent of that justification must be. This is shown by the following considerations, which in our view must govern the international treatment of the law of succession : — 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 originally 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 " Mittermaier has rightly disputed the alleged public interest that would give the State right to determine questions of real succession by the lex rei sitce [Zeiischrift fur Eechtsw. 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 sitce 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. See Fiore, § 391, in agreement with the text. § 362] SUCCESSION AB INTESTATO. 79^ followed immediately upon delivery, and in which credit was unknown : the existence 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 possessed it, and therefore take over the debts with it^ — in other words, so possess it that the legal personality of the ancestor would be revived in the successor. This is the rule of the Eoman law, the system of a pure imiversal succession, and its result is the greatest security possible for the creditor, because the existence of the debt is quite independent 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 liabilities, but in such fashion that the things themselves are alone responsible, and the persons who take them 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 ' A new view recently proponed is that of Heusler in his Institutionen dcs D. Privatr. (1886), p. 533. He sees the distinctive peculiarity not in the liability of the heir for his predecessor's debts, but simply in the fact that "the mass of his property passes to him by virtue of a legal title." Heusler meets the obvious criticism that in that case a sale, e.g. which includes a number of articles, must involve an universal succession, with the remark that in such cases "the title in each transaction must be independently constituted." I cannot, however, succeed in discovering any tenable distinction between succession on the one side and sale on the other, as regards the unity and independence of the title under which the property is taken. A sale, under which several articles are sold for a lump sum, is certainly just as much one transaction as a testament, by virtue of which the heir takes several assets. The title given by the testament is, as regards the acc^uisition of the articles which it covers, no less and no more independent than the title given in a sale is for the article sold. Of course, the heir need not be liable for each and every debt of the deceased : there may be exceptional classes of debts, which expire with him. But as a general principle an universal succession implies liability for debts, although not necessarily to a larger amount than the value of the estate. 8 It is no essential of universal succession that the hfeir should be answerable 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 (cf. Savigny, System, i. 383). The conception of an 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 invmtarii with an universal succession. Just as the hereditas jacens represents 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 Roman law, if the heir enters upon the succession that implies at once a new and independent obligation on the part of the heir, quad 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. ' Cf. Beseler, ii. pp. 486, 487 ; Landlaw of Saxony, i. art. 6, § 3 ; Stobbe, Jahrbuch des D. Rechts, V. p. 293. 796 bak's international law. [§ 362 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 modern times, it is competent, under certain conditions, to affect with liability for debts the specially important property in immoveables. If the rule of the Eoman 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 Eoman 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 withdraw 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 particular, partly an universal succession: the latter exists for the moveable,^ the former for 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 an universal succession, by means of which the legal personality 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 particular succession, then, as in tlie law of things generally, it is the law of the place to which the thing belongs that must be applied. On the other hand, it is a mistake to refer the law of intestate succession to what, it is presumed, would have been the will of the deceased, and thus to establish the universal validity of the hx domicilii, as if the deceased must have known what this law was, and tacitly taken 8 Laurent (ii. § 129) thinks that the older German law had the idea of an universal succession to its full extent, and on this point he attacks Schiiffner and me. His argument is the well-known brocard, "ic mart saisit le vif." The true reason for the sharp attack is (see § 131) that Laurent thinks that he sees me involved in the bonds of feudality, a spectre so familiar to his view. ' Brocher, Nouv. Tr. § 72, finds this peculiar foundation for the doctrine, viz. he attri- butes a kind of juridical personality to the succession. § 362] SUCCESSION AB J N TESTA TO. 797 it to regulate his succession.^" But a proof to the contrary is the existence in Eoman 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.i2 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 without their consent, even by a disposition inter vivosP Besides, we may possibly find it asserted — and by Wharton, § 557, we actually do find it so asserted — that the person who leaves the estate may in the case of real estate, e.g. have had the lex rei sitae in his mind. Savigny modifies this reasoning in this direction, 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 different territory gives a different expression, according as it conceives the nature of the relations of the various members of a family requires. In this general sense, however, every rtile of law rests upon what it is reasonable to suppose is the wish of the person concerned. There is no peculiarity or characteristic specially belonging to the law of succession, and that view will not support the application of the lex domicilii to that department of the law unless the lex domicilii is also to be applied to every rule of law. Further, the application of the lex domicilii cannot be supported on the ground that the law of succession depends upon the personal properties of the one man concerned, and is, in fact, a law of status, or an enlargement of the personality 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 everything affecting status is, as a rule, to be settled by the lex domicilii. All rights may be represented as constituting an enlargement of person- ality ,i= and the lex domicilii, therefore, would have to be applied in every case.^* But, in the third place, there is no more force in the assertion that the State in laying down rules of succession has persons only, and not property, 1" So, too, Bartholora. de Saliceto, in L. 1, 0. de S. Trin. No. U, and in more recent times, Gluck, Intestaterbfolge, pp. 159-164 ; Gunther, p. 733. " This law is founded upon the law of the succession of such heirs ab intestato. According to the theory given above, these rules of succession, although they are against the will of the testator, must depend upon a rule of succession which proceeded from his own will. 1^ See in my favour, Schaffner, p. 171, and Asser-Rivier, § 62. 13 See Walter, D. BecMsgeschichte, ii. § 469. It is strange, and perhaps to be referred to Germanic principles in the law of succession, that questions of succession in Spain, where the point is whether the law of Spain or a foreign law shall he applied, are settled by the personal law of the deceased, but, when the doubt is between the provincial or particular systems with Spain itself, the lex rei sitce is looked upon as decisive. See Torres Campos, p. 288, and the judgment of the Sup. Ct. of Spain, of 8th June 1874, there cited. " Maurenbrecher, i. § 144 ; Phillips, i. pp. 190-201. 16 Savigny, i. p. 334. 16 See to the contrary, "Wachter, ii. p. 196. 798 bak's international laiv. [§ 363 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 le.c rei sitae should therefore be applied. No other ground can be found for assigning the law of succession to the regulation of the personal law of the person deceased than that succession is an universal succession.^* No other ground is tenable, and therefore we must admit that there is something to be said for the application of the lex rei sitce, if and in so far as the principal of an universal succession is rejected. This gives a key to the historical development of theories of the international treatment of the law of succession, and to the contrast which exists up to the present time between the jurisprudence of the Continent of Europe on the one hand, which is spreading more and more, and the jurisprudence of England [of Scotland] and of the United States on the other.^^ Historical Explanation of the Diversity of Legal Doctrine in DIFFERENT COUNTRIES. ^^ NECESSITY FOR THE EeCOGNITION OF THE lex rei sitce TO A CERTAIN EXTENT. § 363. In the Middle Ages, and up to the beginning of the last century, even the Eomanistic school of law lay under the influence of Germanic law. The full bearings of the doctrine of an universal succession were not yet understood, and therefore at this date the preponderance of opinion in Germany, the Netherlands, and France, was in favour of disposing of immoveable property by the rules of the lex rei sitceP- In later times " "Wachter, ii. p. 198. ^8 This ground is taken by older writers — e.g. Barthol. de Saliceto, in L. 1, C. de S. Trin., and is urged hy most of the more modern German authors. " I am glad that this exposition has found approval with such an expert in legal history and in German law as Stobbe (§ 34, note 40). ^ See in Fichardus, Consilia (edit. 1590, § 31, fol. 79a), a review of the different opinions held at that time. It is not, as Stobbe (§ 34, note 41) says, a dogmatic discussion. 21 For the lex rei sitce : Bald Ubald, in L. 1, C. de S. Trin. ; Molinasus, in L. 1, C. de S. Trin. ; Argentrseus, No. 24 ; Burgundus, ii. 16 ; Rodenburg, ii. 2, § 1 ; Abraham a 'wesel, de Connub. Ion. Societate, tract i. 1, No. 118 ; Christianseus, Decis. Fris. ii. dec. 4, No. 2 iv. 8 defin. 7 ; Petrus de Bellapertica, in L. 1, C. de S. Trin. ; Petr. Peekins, de Test. Oonjug. iv. c. 28, No. 8 ; Vinnius, Select Jur. Qucest. 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., Gonsil. vol. ii. cons. 32, No. 10 ; Consil. xxviii. No. 78 ; Mynsinger, Obser. Cent. V. obs. 19 ; Cocceji, de fund. vii. 14, 19 ; Carpzov. Defin. for. p. iii. const. 12, def. 12 • Ziegler, Dimstice Concl. xv. No. 28 ; J. Voet, de Stat. § 21, and in Dig. xxxviii. 17 No. 35 • Boullenois, i. p. 223 ; ii. p. 383 ; Hofaeker, Princip. § 140 ; Ricci, pp. 550, 551 j'Haus, de Princip. p. 36 ; Kori, Er&rterungen, iii. p. 19 ; Mailher, de Chassat, No. 58 ; No. 292 ; Wheaton, i. p. 406 ; Fcelix, i. § 66, pp. 143, 144 ; Burge, iv. p. 154 ; Story, § 483 (and the practice in England and the United States) ; Demangeat on Foelix, i. p. 144 ; Wharton, §§ 557 et seq. ; Westlake-Holtzendorff, §§ 54 and 158 ; Foote, pp. 154, 194. (On the other hand, see Foote, p. 183, on the recognition of the lex domicilii in matters of moveable succession.) Brocher, i. p. 432, in so far as the existing French law is concerned. See, however, a well- reasoned judgment of the Tiib. Civ. at Havre, 28th Aug. 1874 (J. i. p. 182), on the thorough § 363] RECOGNITION OF THE LEX REI SITM. 799 those jurists, in whose country the doctrines of Germanic law and feudal principles bear sway, adhered to the lex rei sitce, while in other quarters, in which the law of Eome began more and more to govern the whole theory, the determination of questions in succession law by the lex domicilii pressed further and further to the front.^^ We can thus explain without difficulty how it is the German jurisprudence that takes the lead in the recognition of the lex domicilii, and how, again, in French jurisprudence, the traditions of the eminent writers on the Germanic coutumes ^ are for a while used in defence of the lex rei sitce. But we can also understand how since the enactment of the French Code,^* in which feudal systems are entirely thrown application of the personal law. 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 applica- tion of the local law of the thing. In Eussia, too, the lex rei sitce rules real property (v. Martens, § 76, note 4). He says, however, "the maxim is entirely at variance with the leading ideas of the law of succession." In British India the lex rei sitce rules the real property, the lex domicilii the moveable. (See Lyon, The Law of India, 1873, cap. v. § 5.) 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 applicable by direct legislative enactment. The most puzzling complications must result from this confusion, for the idea of an universal succession is deeply rooted in the Austrian Statute Book, see § 631. (Law of 9th August 1854, § 2: "The administration 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 cAvn citizens are concerned, and therefore the rio-hts of all concerned must be attended to in accordance with Austrian law." See Unger, i. p. 199 and Vesque v. Puttlingen, on the coniiicts which arise from this rule of law.) On the other hand, in a new Austro-Servian treaty, the national law of the predecessor is declared to be the exclusive rule. (See Paulovitsoh, J. xi. p. 28.) ^^ Besides those already mentioned, the following favour the lex domicilii : — Alb. de Kosate, Lib. i. qu. 46, § 8 ; Alexand. Tartagn. Imol. Consil. Lib. v. cons. 44 ; Puffendorf, Obserat. vol. i. o'bs. 28, § '5 ; Boehmer, /. E. Protest, iii. tit. 27, § 15 ; Seuffert, Comment, i. p. 258 ; Gbschen, Civilr. i. p. 112 ; Holzschuher, i. p. 80 ; Wening Ingenheim, § 2 ; Miihlenbruch, § 72 • Reinhardt, i. 1, p. 31 ; Mittermaier, § 32 ; Unger, i. p. 199 ; Bluntschli, i. § 12, 5 . Oppe'nheim, p. 395 ; Beseler, i. p. 153 ; Eichhorn, § 36 ; Gerber, § 32; Rosshirt, Gimlr. % 6 ; Thbl, § 79; R. Schmid, p. 93; Windscheid, § 35 ; Beseler, § 39, note 15 ; Roth, § 51, note 106 ;' Demburg, § 46, note 13 ; Judgment of the Supreme Court at Berlin, 4th Oct. 1844 (Decisions, 10, p. 177); Supreme Court of Appeal at Lubeck, 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.) The practice of the Sup. Ct. of the German Empire takes the predecessor's personal law as the leading consideration, as we find from several decisions on different points in the law of succession. (See (i.) 29th Jan. 1883 ; Bolze, ii § 36 • Sup. Ct. at Darmstadt, 19th Nov. 1883 (J. xiii. p. 732.) ' 23 From this comes, as Bouhier, chap, xxiii. No. 12, chap. xxvi. No. 71, with some sadness savs the ancien prijugi enracini of the older French authors, que touies les coutumes sont rielles. Bouhier as President of the Parliament at Dijon, stood closer to the Roman law. M The Code Civil, §§ 732 and 870, rests on the principle of an universal succession as do the Prussian A. L. E. i. 2, § 34, i. 9, § 350, i. 17, §§ 127 et seq. ; and the Austrian A. G. B. 8S 532 547-578. In opposition to these provisions, rules such as those of the Code Civil, t 3 ^2 " Les immev^les,rrdmeeeuxpossHes par des Grangers sont regis par la loifraTicaise," Prussian A L R. § 23, and Austrian G.B. § 300, are applicable merely to real rights in particular parcels of heritage (the reverse is assumed in a judgment of the.Cour Royale of 7th Anril 1833 and by Bornemann, Prussian L. E. i. p. 53 ; see, on the other hand, Koch on 88 23 and 32 of the Introduction to the Prussian L. E.), for the law makes a marked distinction b tween the incorporeal right to the succession as an universitas, and the right to particular 800 JJAR'S INTERNATIONAL LAW. [§ 363 aside as regards succession, and since the rules of universal succession, without any distinction in principle being drawn between moveable and immoveable property, have come to be generally recognised, the most modern French jurisprudence, like the new Italian school, has gone over with flying colours, and taken up its position on the exclusive application of the personal law.^^ Schiiffner rejects the view we have adopted, although he admits it to be logically correct, and announces that he is in favour of the Ux rei sitce, 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 view we have adopted, and the former we can meet by remembering that the question, whether the lex rei sitce regards succession as universal, is easily answered ; and, where the lex domicilii and the lex rei sitce both regard it as universal, it is only when we propose to apply the lex rei sitce 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 of Brandenburg by the Joachima of 1527, by which corporeal articles. Prussian practice is fixed : it applies universally the lex domicilii. See Forster-Eccius, i. § 11, No. 7, who approves of this practice. ^' French practice still firmly adheres to the system of applying the lex rei sitce in the ca.se of real property (see judgment of the Ct. of Cass, cited by L. Renault (J. ii. p. 338), and Weiss, p. 831, note, viz. 14th Mar. 1837 (Sirey, xxxvii. 2, p. 195) ; 2nd April 1884 (J. xii. p. 77) ; Ct. of Pau, 17th Jan. 1872, and 14th Mar. 1874 (J. i. p. 79 ; ii. p. 357) : it not unfrequently appeals simply to the older precedents, which it is believed the Code Civil intended to sanction. Brocher (Nouv. Tres. §§ 75, 76, and 88) although on the general doctrine an adherent of the view that the personal law should rule, thinks that to this extent the Code Civil has positively laid down that the statut riel is to govern. But see, for the application of the personal law of the deceased, L. Renault (J. ii. p. 329) ; Laurent, i. § 294 ; ii. § 123 ; vi. § 128 ; Durand, § 186; Weiss, p. 834 {" la ierritoriaim des lois successorales engendre des difficvXtds practigues inextricdbles"). Despagnet, § 490 ; Asser- Rivier, § 62 ; Labbe (J. xii. p. 1 4) declares that, so far as future legislation is concerned, the loi nationale of the deceased should be the exclusive rule. In Belgium the rule of practice has been hitherto, as in France, to apply the lex rei sitae. See Haus, Dr. Priv. § 131 ; Picard (J. viii. p. 487). Preliminary art. 8 of the Italian Code enjoins the observance of the national law of the deceased in the most thorough fashion. A decision of the Sup. Ct. of Spain in 1868, which enjoys statutory force, makes the national law of the deceased the rule. (See Salmeron, J. ix. p. 407, who describes the adoption of this principle as one of the most important advances in legal science.) See judgment of the Sup. Ct. of Spain, again, on 6th June 1873, J. i. p. 40. Calvo, ii. § 849, gives a review of the jurisprudence of various countries. § 364] RECOGNITION OF THE LEX REI SITM. 8oi the widow has right to one half of the combined estate of herself and her husband, — in Silesia by the Allgemeines LandrecM, in Ehrenbreitstein by Eoman law, and in Coblenz by French law. We shall thus in truth have four separate successions. § 364. If, on the other hand, universal succession is not recognised by the personal law, 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 alike upon the moveable and real estate, then, in this case, the only expedient left would be a taxation and apportionment; but that would be due not to any error in our theory as to the collision of legal systems, but solely to the individual territorial system. The following cases may serve to illustrate our meaning. By the law -'' Cf. Vattel, ii. ch. 8, § 100 : " Les liens qu'il {V etranger) dUaisse en mourant, dans unpays Hranger, doivent Tiaturellement passer A ceux qui sont heriliers. Mais cette rigle gindrale ■n'empMie point, que les biens immeubUs ne doivent suivre les dispositions des lois du pays o{L Us sont situes." Eenaud, i. § 42, ii. 3 ; and Kiernlff, 79, 80, take our view. And so too does Stobbe, § 34, note 44 ; so too the practice of the Sup. Ct. of Oldenburg (Seuffert, xxiii. § 4). Muheim, for instance, goes wrong, because he does not take into account the possibih'ty of a rule of singular succession prevailing by the lex rei silce but with liability for certain debts. He has, however, altogether misunderstood my meaning if he thinks (pp. 246, 247) that in my first edition I defended the application of the lex rei sitce in the case of French and Swiss law. Of the Swiss law I said not one word. Preliminary Art. 8 of the Italian Code also goes too far in regulating the succession by the national law of the deceased, "of whatsoever nature the e-it;ite is, and wheresoever it is situated." It is also entirely wrong to say (like Muheiin, p. 247) that the recognition of the lex rei sitce is a consequence of the incapacity of foreigners to enjoy rights. A decision of the Court of Cass, at Turin, of 4th Dec. 1870 (Pallavicini v. Gavotti), has very properly recognised that the principle of the Italian Code cannot be carried out without certain modifications. Fiore (p. 633) criticises this decision unfavourably, and at the same time defends the literal sense of the Italian Code. But he is wrong. The question does not, as Fiore thinks, turn upon the fact that the Italian judgment will not receive an exequatur abroad, but rather on the consideration that in certain circumstances the Italian Court will have to declare certain real rights to be existent, which as a matter of fact do not exist, because the kx rei sitce does not recognise them [e.g. shares in a trust estate which is indivisible). Two later judgments of the same court meet Fiore's argument excellently well (J. viii. p. 228) ; Esperson does not approve of these. So too the Court of Cass, at Florence, on 15th June 1875, decided in the same spirit (Gianzana, ii. § 178) that the lex rei sitce must prevail if it claims to regulate the succession to different parcels of property. Many modern treaties confirm our view that a certain respect to the lex rei sitce may be required. If in country A the lex rei sitce is strictly adhered to as the rule of succession— on what ground it matters not— then country B, in concluding a treaty which shall regulate the succession of the subjects of both countries, cannot but adopt the lex rei sitce, notwithstanding tliat in country B the personal law is generally taken as the rule of succession. See Art. x. of the Russo-German treaty of 12th Nov. 1874, and Art. xix. of the Servian-German consular treaty of eth Jan. 1883. Eussia still insists strictly on the lex rei sitae. See Durand, p. 525, oil the Franco-Eussian treaty of 1st April 1874. 3 E 802 B.4Ji'S INTERNATIONAL LAW. [§ 364 of Scotland heritable bonds, which are obligations for payment of money- secured by the hypothecation or the creation of some other real right over heritable estate,^^ fall upon this estate primarily, while in England the law makes the moveable estate liable in the first place for the payment of such obligations. If then a domiciled Englishman, who owns real 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 moveables. 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 personalty to relieve him of the debt follows him to England.'^ Conversely, if the real estate is by the hx rei sitce not primarily answerable for payment of debts, 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 executor in solidum, even although the foreign law would allow the debt to attach to both moveable and immoveable estate ; just as a successor in a feu, who pays what is subsidiarily a debt upon the feu, has recourse against the heir who takes the allodial estate.^" 2' story, § 366. 28 Story, §§ 487, 488. 2' In the result, Story, § 489c, and Pothicr, des Successions, ch. 5, § 1 ; Burge, ii. p. 85, iv. pp. 724, 725, 732, 733 ; Merlin, Rep. Dette. § 3, iv. ; Bouhier, ch. 29, No. 59, ch. 24, No. 186, are agreed. Story, § 486, reports the following case: "A person domiciled iii 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 Scotland the heir cannot share with the other next of kin in the personal property 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 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 Scots and English estates form two distinct and separate subjects, which stand to one another just as the succession to two different persons would. See, too, Westlake- Holtzendorf, §§ HO and 152 : " No law for the regulation of the claims of creditors or legatees, which is binding in the country in which the mass of a deceased person's estate is being administered, can ever throw a heavier burden upon his landed estate, with the object of satisfying the creditors upon the succession, than the lex situs allows, even although the deceased was domiciled abroad." [See Westlake, § 162.] Art. vii. of the resolutions of the Institute of International Law passed at Oxford in 1880, reserves in the same way (Ann. 5th year, pp. 54, 55) the possibility of an application of the lex rei sitce, if, that is to say, by that law or by the personal law of the deceased there could not be said to be an universal succession. The article runs thus : " Les successions d Vunivers- alite d'un patrimonie sont, quant d la daermination des personnes mccessibles, cl I'itendue de leurs droits, & la inesure om guotiti de la portion disponible ou de la riserve, et d, la validiti intrinsique des dispositions de derniire volants, regies par les lois de I'itat auquel appartient le dtfaut, ou suhsidiarement dans les cas prevus ci-dessus d Vart. ii. par les lois de son domidle, quels que soient la nature des biens ou le lieu de leur situation." NOTE HH\ SUCCESSION IN BRITAIN AND THE UNITED STATES. 803 NOTE HH ON §§ 363, 364. PRINCIPLE OF SUCCESSION IN BRITAIN AND THE UNITED STATES. [The general principle followed, as the author correctly states, in England, Scotland, and America, in questions involving rights of succes- sion, is that, if the subject be real estate, the lex rei sites prevails ; if, on the other hand, moveables are the subject in hand, the law of the domicile of the deceased at the time of his death will decide. Thus, too, as regards the incidence of debts, it is held that, while the creditors of the deceased must be satisfied out of any estate he may have left, be it moveable or be it heritable, the executor, if he pays an heritable debt, may have recourse against the heir, and in the converse case, the heir who pays a debt which is not truly an heritable debt, may have recourse against the executor. But although the two estates inter se are primarily liable each for its own liabilities, the executor who has paid away, or is in course of paying away, the executry estate, cannot be made liable to relieve an heir who has, out of the heritable estate, paid what was truly a debt upon the executry (Erskine, iii. 9, 47). While, therefore, the creditors have a right to demand payment out of any estate they can find, each parcel must, in a question between the heir and executor, bear its own liabilities, and the lex rei sitce will determine whether a debt has been well constituted against the heritable estate, so as to affect the heir rather than the executor. The law of England and of Scotland applies the lex rei sitce so exclusively in regard to real property, that the law of the deceased's domicile will be entirely ignored in its apportionment of debts and legacies as between the personal and real estate. The latter is not affected unless the lex rei sitce pronounces it to be (Westlake, § 162, and Harrison v. Harrison, 1873, L.E. 8, Ch. App. 342), and the heir taking it is not bound in any obligation of relief unless his own law, i.e. the lex rei sitce, so provides (Balfour v. Scott, 1793, H. of L. 6, Bro. P.O. 550, referred to by Sir William Grant, M.E., in Brodie v. Barry, 1813, 2 Ves and Beames, 127). If he has by accident paid personal debts, he will have recourse against the executor, who is administering in the other country, by the laws of which an heir has no such right of relief. (Winchelsea v. Garetty, 1838, 2 Keen, p. 293.) Again, according to the authority cited by Story, and referred to in the text (Drummond, 1799, ■6, Bro. P.O. 601, also referred to by Sir William Grant in Brodie ut supra), a Scottish heir will be liable to pay an heritable bond secured over the estate in Scotland which he takes, and will have no right of relief, that being the law of Scotland, although by the law of the deceased's domicile, viz. England, he would have had recourse against the executor. For the law of the United States, which on this matter is the same as .those of England and Scotland, see Wharton, §§ 560, 561.] 804 BAlfS INTERNATIONAL LAW. [§ 365 Presumed Intention of the Deceased? Is Nationality ok Domicile TO EULE THE LaW OF SUCCESSION ? COEECITIVE LAWS, § 365. Many writers 2° base the general recognition of the personal law of the deceased, in questions of succession, upon what may be presumed to have- been his intention. "We have already declared ourselves against any such basis for the doctrine. It has this further drawback, that, so long as we found on it there is just as much reason for taking the Ux domicilii as the law of the nationality as the personal law which is to guide us, whereas on our theory, which is also the theory of the modern Italo-French school, the latter law, i.e. of the nationality, must alone be applied. For the law of the family and the law of succession stand in close connection one with the other,^! and if the law of the nationality is held to be regulative of the former, the law of succession, unless in so far as it falls in exceptional cases under the lex rei sitae, must also be under the guidance of the law of nationality.'^ All are, however, agreed that the personal law which the deceased had at the time of his death must rule, while nothing whatever depends on the place where he happened to be temporarily at the moment of his death. But in the case of married persons a sharp line must be drawn between what is really succession, and what is the operation of the community of goods involved in marriage, either continued after the death of one of the spouses, or coming into existence then for the first time. Questions as to this community are to be determined by the law of the first matrimonial domicile (or by the national law of the spouses at the date of the marriage, as the case may be). Thus a judgment of the German Imp. Ct. (iii.). of 8th January 1886 (Bolze, Prax. ii. § 1184, p. 306), which is in my judg- *> E.g. Laurent, ii. § 12-3 ; "Weiss, p. 832 ; Despagnet, § 490. *' Fiore, § 394, and Norsa, Rev. vii. p. 209, draw particular attention to this. ^ In Germany, of coarse, the ruling opinion is on this subject also in favour of the lex- domicilii; but see szipra, p. 203. See an interesting judgment of the Sup. Ct. of App. at Celle, reported in v. Billow and Hagemann, Prakt. Erdrtenmgen, vi. p. 140, and judgment of the Sup. Ct. of App. at Liibeck, on 21st March 1861 (Seuffert, xiv. § 107). The Imp. Ger. Ct. (i.), on 7th July 1883 (Dec. xiv. § 43, p. 183), has lately decided in this sense ; so, too, the French Ct. of Cass. 7th November 1826 (Sirey, xxvi. i. p. 350), and the Saxon Code, § 17. In the same way, in England and the United States, domicile is still accepted, in so far as the moveable succession is concerned. In Austria the principle of nationality is recognised, but an exception is made in case the State, to which a foreigner Who has died in Austria belongs, does not recognise the same rule (v. PUttlingen, § 83). The Italian Code, prelimin. art. 8, expressly declares that the law of nationality will rule in Italy. (See Fiore, § 394 ; Renault, J. ii. p. 329 ; Laurent, vi. § 128.) Treaty of the Spanish American States of 1878, §§ 20, 21. But subjects of these States have the same rights on the estate of a foreigner which happens to be in their country, as they would have if the deceased had himself been a subject. Asser- Rivier, §§ 62, 64 : Durand, p. 387 ; Weiss, ut cit. French practice (see Ct. of Pau, 22nd June 1885, J. xiv. pp. 479, 485) as a rule puts the moveable property under the law of the domicile. French writers, however, seem nowadays to incline somewhat to the law of" nationality. See indications of this given by Fiore, p. 619, and the Austro-French treaty of 1866, § 2 (J. ii. pp. 427, 428), in favour of a decision by the loi nationaU. § 365] PRESUMPTION OF SURVIVORSHIP, ETC. '805 ment sound, holds that the right of the surviving spouse, hy the law of Liibeck, where the marriage has been enriched by succession, to remain in occupation of the estate, is merely a continuance of the right of property that is part of the married relation, and that the law of the last domicile of the deceased spouse, through whom the property came, does not regulate the matter. But a fiction of the death of any person (such as so-called civil death, often made part of a criminal sentence), which by the personal law of that person must have full operation, will have no effect in any other State, whose laws know nothing of such a fiction. No one can, in a foreign country, be put in possession of the property of a person who is actually still alive, by pleading any such personal law.. If the person affected by the sentence is actually under the jurisdiction of the State . which pronounced the sentence, it will be necessary to appoint a curator to him in the foreign country.^^ The case is otherwise where the question is one as to a presumption of death, where the exact moment of death cannot be fixed ; in such questions the law which rules the succession in other respects must prevail (see Brocher, i. p. 414; Weiss, p. 847). If, however, two persons perish together in consequence of the same event, and if in such a case the personal law of A presumes that B lived longer than A, and proceeds on the footing that B thus became A's heir, while B's personal law rejects this presumption, or perhaps sets up the contrary presumption, viz. that A was the survivor, then A's nearest of kin must be B's heirs, and B's nearest of kin must be A's heirs, the order of succession among the respective nearest of kin being, however, in the former case determined by the law which prevails in A's country, in the latter case by the law of B's country. Thus each law will have its effect within its own jurisdiction.^* An exception is not unfrequently made, and Piore (§ 396) makes it, from the consistent application of the national law of the deceased, in cases in which the public interest would be injured if it were applied, e.g. if the foreign law rests upon some privilege of rank, or upon the advantage of being the first-born, etc., while the native law entirely rejects such privi- leges. Such an exception is on the one side, in theory, unsound, and on the other, in practice, unnecessary. It is unsound in theory, because, as we have seen, all systems of succession are founded on some political or social consideration or another, or at least are supported by such considera- tions. Thus we should very soon reach the total exclusion of the national law of the deceased. Again, the exception is in practice unnecessary. Eor all the doctrines which we thus endeavour to exclude frqm our native soil, rest upon the principle of some kind of separate succession, and thus lead to the exclusive application of the lex rei sitce. But it is impossible 33 To the same effect Weiss, p. 847. ^ Weiss and Despagnet, § 499, propose to decide according to the probabilities of each case, i.e. give effect to neither law. That is capricious, and very often there is no probability in the matter. 8o6 bar's international law. [§366 to put absolutely out of view such doctrines, confined to a foreign country, or to declare that they are entirely invalid. Are we to ask e.(j. an Italian judge, if an Italian falls heir to an entailed estate in Germany [entails of this kind being forbidden by the law of Italy] to declare, either that the German entail is invalid, a declarator to which we could not expect the German courts to pay any attention, or that the Italian, in respect of preliminary article 8 of the Italian Code, should renounce the German entailed estate ? If a law, which proceeds on the principle of an universal succession, prefers the iirst-born to the whole estate, what con- cern has Italy with the fate of an estate, with which up to that moment it had nothiiig to do, even if, in the case on hand, it is an Italian who takes benefit by the state of the foreign law ? ^^ The question whether any particular thing is to be held moveable or immoveable (see supra, p. 505) is to be determined by the personal law, if that is the law that regulates the succession, but by the lex rei sitce in the opposite case ; ^^ in the latter case, the question must be whether it is to be held to bo a pertinent of some other thing, in which case of course the lex rei sitce must be applicable. Capacity to Take. Juristic Persons in pakticulae. § 366. The capacity of foreigners in matters of succession, both on its active and its passive side, is now more and more admitted in all civilised States. Some States no doubt only admit it on condition of reciprocal treatment which must be shown to exist. But still, limitations of legal capacity have survived longer than in other matters in the shape of a right of deduction {Jus detractus. Absckoss) where successions pass out of this country into the hands of foreigners, and in the shape of the jus albinagii {droit d'auhaine) where a foreigner has left an estate in this country. A long series of treaties between different States and territories abolished these dues and confiscations in their mutual dealino-s. Then too, the late German Bund (art. 18 of the Bundes Acte and Resolution of the Bund of 23rd June 1817) entirely swept away all such dues in the States of the Bund, in so far as the subjects of the States belonging to it were concerned.^^ In France, the statute of 4th July 1819, " Sur I'aholition des droits d'auhaine et de detraction," gives foreigners full capacity of succession, making, no doubt, a certain limitation, with a view to obtaining 35 See to this effect Durand, p. 390 ; Despagnet, § 492. Laurent's discussion, vi. § 32, is confused. Of course, the French judge is to sweep out of the world as far as possible all trusts, even although they affect foreign landed estate, and to treat them as non-existent. ^ Most authorities make the lex rei sitce the general rule here (Story, § 447). This is not qnite accurate ; if, for instance, the succession is universal both by the law of the domicile and the lex rei sitiB, but the lex domicilii provides that the real estate must go to some privileged heir for a consideration, the lex domicilii must decide whether the heir may take any particular thing for this consideration. ^ For the present day, see art. 3 of the Imperial Constitution, and Stobbe, §§ 42, 43. § ^67] SUCCESSION BY JURISTIC PERSONS. 807 reciprocity, whicli is obscurely expressed, and has accordingly given rise to a multitude of controversies.^^ It does not, however, as a matter of course, follow from the admission of the legal capacity of foreigners for succession that foreign juristic persons and corporations will have the same rights of succession as such persons and corporations belonging to this country have.^* Although at any given moment the property of a foreign foundation, for instance, may really serve the same objects as some institution in this country which bears the same or a similar name, we have no guarantee that that will continue to be so in the future, and all foundations are obnoxious to serious invasions by public authority, under certain circum- stances. Tor instance, a State might allow ecclesiastical or charitable foundations to flourish luxuriantly, in order that it might from time to time confiscate them for its own behoof, or for behoof of its political communities. And if the law which governs the succession requires a sanction from the State before a succession or a legacy can be taken by a foundation or by any juridical person, we can at least never find an equiv- alent for this sanction in the sanction of the State in which that foundation or juridical person is situated. § 367. Capacity to take by succession is, as itself a part of the general doctrine of capacity to have legal rights, subject, according to the prin- ciples already expovinded (p. 304), to the law which rules the succession for other purposes, i.e. to the lex rei sitce or the personal law of the 58 On the different theories, see Weiss, p. 404. The Code Civil (§§ 726 and 912, also 11) reiiuired, as a condition of the capacity of a foreigner to take by succession, that Frenchmen must have the same privilege in that foreigner's ovt'n country by virtue of a treaty. The statute of 1819, without paying any attention to the i-equirement of reciprocity, provided that, in case there were French co-heirs in existence, these " preUveront sur les Mens siiues en France, ime portion igale A la vaJeur des Mens situes en pays Uranger, dont Us seraient exclus a quelque litre que ee soit en vertu des his et coutumes locales." The last words suggest the interpretation that the French co-heirs should levy their praxipuum upon French estate, even although it was not solely in their character as French subjects, i.e. foreigners, that they were excluded in the other country, but because of the order of succession there recognised. This Avould be nothing short of an invasion by the French law of the domain belonging to a foreign law. Accordingly Weiss, e.g. proposes to restrict the prwcipuum of the French co-heirs to the case in which the succession is in itself subject to the law of France. This interpretation would seem, however, to be wrong, and to be rejected in practice. See e.g. Renault (J. iii. p. 15, and J. v. p. 611) on some further difficulties in the statute. See, also, criticism in Laurent, vi. § 164, although he .»ay,s (§ 65) in his pompous way of this unfortunate statute, "La loi de 1819 . . . inaugure Vav'inement du droit international privi." The Belgian statute of 27th April 1865 (Laurent, iii. §§ 370, 371) provides simply and soundly, "Les strangers out le droit de succeier, de disposer et de reeevoir de la miine manih-e que les Beiges dans toute Vitendue du royaurm."' See the statute of the Netherlands, 17th April 1869. See Calvo on the French statute, ii. § 850. ■ 39 § 2 of the Austro-Servian Comm. Treaty of 1881 (.J. xi. p. 26) refuses foreign juridical persons, other than trading or insurance companies, the right to acquire real property. According to Panlowitsch's exposition in the Journal, the foreign corporation does, however, take the price of the estate in Servia, although it must be sold. 8o8 bar's international law. [§ 367 deceased, as the case may be.*" Many persons " are deceived by the word " capacity " (fahigkeit), and are in favour accordingly of calling in the personal law of those who are to take. But the law, in declaring one to be " incapable " of taking by succession from another, simply means that this person shall not be the successor, although all other conditions necessary to his taking may be present : the law which decides all other questions connected with the succession, can never commit the decision of this point to any other law ; this is only one special point in the general chapter of the succession. If the law of country A, for instance, declares that persons who are unconceived at the date of the predecessor's death, or children who are not viable, are incapable of taking by succession, the consequence of this rule is, under certain circumstances, to introduce an entirely different order of succession ah intestato or ex testamento from what would follow if there were a declaration to a contrary effect. We must, no doubt, keep in view that where the personal law of the successor would deprive him of the inheritance the moment he had taken it, it cannot reasonably be supposed that the law which would otherwise regulate the succession [i.e. the personal law of the predecessor, or, in exceptional cases, the lex rei sitce] is to take no account at all of this. For in such a case the successor would in truth be a third person, e.g. the foreign State eager to confiscate the property, a monastery, or some other favoured institution. The State to which the predecessor belonged had no desire to give these bodies anything to the disadvantage of near relations of the deceased. It may then often happen that, in order to ensure that the law of succession shall be at once and completely worked out, capacity to take, both by the personal law of the successor and by that which in other respects regulates the inheritance, shall be required.*^ The former, however, need not be regarded if the successor is in a position as a matter of fact to withdraw himself from the prejudicial operation of his personal law, which he has incurred in consequence e.g. of his residence in a foreign country. The impediment which exists in the personal law of the heir or legatee must be considered rather as a questiou of fact. We shall take it into account [and refuse to hand over the succession] if the refusal to take it into account would assist some institution with which our own law will have nothing to do, e.g. will further confiscation by a foreign fisk, or an annexation by the law of mortmain of monasteries, churches, etc.*^ (But in many cases, in particular in cases in which the incapacity to take is not *" Hert, iv. 13, 50 ; Bartolus, in L. 1, C. de S. Trin. Nos. 38, 40 ; Argeutrsus, Nos. 17, 18 ; Burge, iv. pp. 155, 217 ; Oppenheim, p. 396 ; Schmid, p. 96 ; Roth, D. Privatr. 51, note 107 ; Dernburg, Pand. § 46 ad fin. ; Sup. Ct. of App. at Oldenburg, 5th March 1853 ; Seuffert, vi. § 308. The law of England and of the United States is to the same effect. Wharton, §§ 576, 578. « So Savigny, § 377 ; Guthrie, p. 283 ; Holzschuher, i. p. 80 ; TJnger, p. 200, note 101 ; Vesque v. Puttlingen, p. 277 ; Fiore, § 397 ; Esperson, J. viii. pp. 226, 227 ; Laurent, vi. § 172 ; Weiss, p. 847. Sup. Ct. at Stuttgart, July 1862 (Seuffert, xv. No. 199). ** In this matter I have altered the opinion I once held. Boullonois, i. p. 66, holds that the successor can only take, if he has capacity both by the law of his domicile and by the law which regulates the succession. See, too, Wharton, § 579. « If a man enters a monastic order, which forbids its members to take successions, this may be regarded as a renunciation of all successions. See Hert, iv. 42. § 367] CAPACITY TO TAKE BY SUCCESSION. 809 rested, by the personal law of the person who is called to the succession, upon any exercise of his will, and so does not imply a renunciation of it by him, some assistance may be given by setting up a curatory.) The impediment, on the other hand, is not to be taken into account [and the succession is to be handed over] if the result of taking it into account would be the reverse, e.g. would involve the spoliation of persons who are persecuted on account of some political or religious pro- fession.** Those, however, who commit the decision to the personal law of the successor, generally take the edge off the unpleasant consequences of their theory ,« by having recourse to the coercitive character of this kind of law, to the plea of ordre pioblic,^^ with which we are so familiar, and thus they refuse after all to give effect to such provisions, although they occur in the personal law of the successor.*^ Weiss, who (p. 847) treats the subject with a thoroughness which deserves recognition, has not made it absolutely clear what consequences must ensue if the successor is by his personal law excluded as unworthy or incapable, while he is recognised by the personal law of the predecessor. It is not possible without a complete contradiction to hold the principle of an universal succession, but still to say that a Frenchman, who would by his own law be indigne (see Code Civ. § 727), is e.g. in the very same succession to be successor to the estate which may be in Eussia or Italy, while he cannot take what is in France. I am not aware what Weiss proposes to do in such a case about the discharge of debt. Even the public conscience will in the end fail to justify a legal contradiction. We cannot allow ourselves, as Weiss allows himself (p. 849), to make too extended a use of the principle of ordre public. Where, for instance, the law of country A only allows illegitimate children, en/ants naturels in the meaning of the French law, to take a limited part of their father's succession, that rests of course upon a consideration of morality : but such a considera- tion of morality is only applicable in the case of successions which are dependent on the law of that country, A. The en/ants naturels are not treated as members of the family with the full rights of such members. But the law of that country, A, need have no concern about successions, which come ** It would, e.g. have this result, that the man who was declared by the law of his own country to be incapable of succeeding, owing to his religious profession, would be declared by our law also to be incapable. *' So Savigny ut cit. ; Fiore, § 397 ; Weiss, p. 848 ; see, on the other hand, for the correct view, Muheim, p. 253. *" Laws as to incapacity to succeed have the character of coercitive laws, if any laws in the region of private law have that character, and belong to ordre public. Accordingly Savigny holds that the lex fori should be applied in all such cases. " There are other intermediate views. Walter, § 43, says : " By the law of his own country a monk cannot take by succession ; this has no effect in the country where the institution of mon- asticism is positively rejected, but it has where it is known, although this incapacity may not be attached to it. " Stobbe, § 33, notes 52, 53, proposes that in general the lex domiciliioHhe successor should decide. But if the question be whether a particular person is capable of succession as to a particular predecessor, then, according to Stobbe, the law of the predecessor shall decide as to his capacity to take, just as it will determine the order of succession. This latter proposition is in all cases, sound, but as Muheim (p. 253) rightly remarks, must be regarded not as a rule of capacity, but as a rule of priority. 8lO BAk'S INTERNATIONAL LAW. [§ 368 to the bastard from without. If the law of the predecessor allows him to a more complete extent the rank of a member of the family, the law of country A is not charged with the duty of attending to the predecessor's morals, or of protecting his family from an intruder, who will prejudice their rights.** The law of country A would have no object in interfering, unless it entertained the principle that no bastards should take by succession, or at least that they should not become rich people. This shows us the fallibility of the argument of ordre public, even although it is elevated to a higher rank, with the title of ordre pioblic international. The law which regulates the succession in general will determine also what is the degree of kinship to which the statutory order of succession will extend. This will be the personal law of the predecessor in all the countries which recognise the principle of an universal succession.*' II. Mortis Causa DISPOSITIONS AND CONTEAGTS AS TO SUCCESSION. Capacity to make a Testament. § 368. 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 exchxded, 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 ai intestato permits this operation to take effect, and so mortis causa deeds will depend upon the personal law of the testator or the lex rei sitw, according as the law which would regulate intestacy speaks of an 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 law which in other respects regulates the succession,^ i.e. to the lex rei sitce or the lex domicilii, according as the author dealing with the subject holds that intestate succession is determined by the one or by the other.^ Some authors, however, moved by the expression " capacity" {habilitas, capacitas, capaciti), have been led illogically to apply the lex domicilii in all ^ In this sense see Espersou (J. viii. p. 227) and Laurent vi. § 244. That the right of the enfant nature! to succeed is to b", determined exclusively by the personal law of the deceased is the judgment of the Ct. at Evreux on 17th August 1881 (J. ix. p. 194). See, too, Despagnet, § 536. « Laurent, vi. § 226. ' To the same effect Brocher, ii. § 140, and Stobbe, § 34, note 54. 2 The following support the lex rei sitce : Bartolus, Nos. 38-41 ; Burgundiis, i. 45 ; P. Voet, de Stat. iv. c. 3, § 12 ; Huber, § 15 ; Hert, iv. 22 ; Gaill, Observ. ii. observ. 125, No. 12 ; Stockmans, Decis. Brabant, decis. 125, No. 10 ; Rodenburg, ii. 5, § 7 ; Vinnius, Select Juris. QuoBst, ii. c. 19 ; Cocoeji, vii. § 4 ; Merlin, Rep. Testament, i. § 5, art. 2, No. 2 ; Ricci, pp. 514, 545 ; Ziegler, Dicast. Concl. 15, § 21 ; Burge, iv. pp. 217v220 ; Story, §§ 474 and 465 ; Bornemann, Preussisches Civilr. i. p. 13 ; Unger, p. 202. " In th»*same way mortis causa dispositions by a. § ^68] CAPACITY TO TEST. 8ll questions of this class,^ although in other respects they are in favour of the lex rei sitcc. 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 domicilii must, of course, determine whether such control exists or not ; while, on the other hand, many authors go so far as to apply the lex rei siice to the conflict of systems of law, both of which treat succession purely as an universal succession ; the testament, which in its nature is intended to dispose of the whole estate left by the testator^ can only be upheld so as to have that comprehensive operation, if the lex domicilii is taken as the determinant of the capacity to test. Legal capacity to act in a general sense is not to be confounded with the capacity of making a testament.^ The laws which set limits upon the former eicist solely for the advantage of the incapax, but la-ws as to testamentary incapacity have in view the security and the advantage of the heirs ah 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 will make the stranger of immoveable property are to be determined by the law of Austria, and that as much in questions of capacity as in reference to their subtautive provisions." See v. Piittlingen, p. 278. The following the lex domicilii : Hofaker, De eff. § 24 ; Molinieus, in L. 1, C. de S. Trin. ; Bouhier, chap. 24, No. 91 ; Alder. Mascardus, Concl. 6, No. 42; Holzschuher, i. p. 80 ; Wachter, ii. p. 365 ; Thbl, Einl. § 79 ; Snvigny, § 377 ; Guthrie, p. 282. It is indisputable that the cayjacity of testing on moveables must be determined by the lex domicilii. See Burge, iv. p. 580 ; Seuffert, Comm. i. p. 259. Those who take nationality as the determinant make it the rule, of course, in these matters also. See Laurent, vi. § 184 ; he thinks capacity to test is a statut persmmel. ^ For instance, Bald TJbald, in L. 1, C. de S. Trin. No. 79 ; D'Aguesseau, CEuxres, iv. p. 539 ; Fcelix, i. § 88, pp. 198, 199 (Demangeat on this pas.sage, and i. pp. 64-65) ; Schatfner, p. 180 ; Hugo Grotius {Epistoice, Amstelod. 1687, No. 464) ; Boullenois, i. pp. 486, 488, 714. Some of these authors with this further absurdity, that if a person is incapacitated by the hx 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 effect as to the real estate in question {" tlai eapaciU de tester is personelle riele.") Schmid, p. 98, and Asser-Rivier, § 64, are the modern representatives of this class. * Cf. Merlin, Eep. Testament, sect. 1, § 5, art. 1, iii. 3 See e.g. judgment of the French Ct. 30th Aug. 1820 (Sirey, xx. i. p. 447). 8 This refutes the argument urged by Schmid and Asser-Rivier against the view taken in the text. They think that the law refuses effect to the last wills of incapable persons merely because it desires to protect these persons against thoughtless acts. But the person who makes a will which he can destroy or revoke at any moment cannot be said to be injured by it. ' There are, for instance, differences between the Prussian A.L.R., which gives the prodi- gal a limited capacity of testing — viz. over one half of his estate — (i. 1, 13, i. 12, § 37), and the common law of Rome, 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 8l2 BAH'S INTERNATIONAL LAW. [§ 369 personal law provide the general rule ; while, if one of these systems comes into conflict with the common law of England, the lex rei sitoc must deter- mine questions as to the succession to real property. § 369. If a change of domicile or of nationality, as the case may be, has taken place, the last personal law is that which rules, in so far as it is that personal law which supplies the rule ; ^ but a testament which is bad from the beginning cannot be made good merely by a subsequent change of domicile. The capacity to test must therefore be present according to the personal law at the date of death, and also according to the law which was the testator's personal law at the date when he made his testament." That is the result of the following reasoning. If any one is incapable of executing 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. But. we may reach the same result by another chain of reasoning. If the testament is null by the personal law which the testa- tor enjoyed at the time he made it, it is certainly not made good by a simple change in the personal law of that testator. If, conversely, it is null by the last personal law he enjoyed, i.e. at the date of his death, to uphold it would result in an insoluble conflict with the rights of the heirs ah intestato, who would say with good reason that their rights must be determined by the last personal law of the testator and by no other law. This view ^^ is supported by analogous provisions of the Eoman law which treat of the change of the legal relations of a person under the dominion of the same system of law.^^ If the 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 one side, which give children injamilia the right of testing, and the common law of Rome on the other side, which denies it to them. Further, the English Wills Act of 1837 (7 Will. IV. and 1 Vict. c. 26, see Lehr, Droit cioil anglais, § 919) makes persons under 21 years of age ineapahle of testing. By the common law of Rome, on the other hand, puberes can test, and so by the law of France can persons over 16 years of age, but not to the same extent as persons of full age. [By the law of Scotland a minor pubes can test on moveables, but not on heritage.] * 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 b,e applied. " Savigny, § 377 ; Guthrie, p. 282 ; Wacliter, ii. p. 365 ; Stobbe, § 34, note ,o5. Fbrster- Ecoius, i. § 11, note 7, Asser-Rivier, § 64 ; Burge, iv. p. 450. The decision of the German Imp. Ct. (iv.) to a different effect on 10th Nov. 1887 {Dec xviii. No. 59, p. 315) is founded on the peculiar provision of § 13, Ft. i. tit. 12, of the Freuss. Allgem. Landrecht., which regulated the validity of the testament in question, because the testator had his last domicile ■within its territory. ^^ Incapacity to test arose, according to older Roman law, from the incapacity to do the act in which the testament was, as a matter of form, clothed. " Cf. L. 19, D. 28, 1, § 4 J, quibm modis test, infirm. 2, 17. " Here Savigny, § 377 (Guthrie, p. 282), makes a distinction between physical and legal qualities. As regards the former, he takes theriew of the text; as regards the latter, he thinks that the personal law of the testator, at the time he made the testament, should rule. This distinction is not tenable for the legal systems of different territories. The physical quality is only recognised in so far as the law recognises it, i.e. in so far as it is a legal as well as a physical quality. NOTE II\ CAPACITY TO TEST. 813 law of some domicile which he has in the interval acquired and lost, his deed must be sustained.^^ NOTE II ON §§ 368, 369. CAPACITY TO TEST. [In Scotland, capacity to dispose of moveables by testament is regulated by the law of the domicile. By the tiiird section of Lord Kingsdown's Act (24 and 25 Vict. c. 114) it is provided that no will " shall be held to be revoked or to have become invalid ... by reason of any subsequent change of domicile of tlie person making the same." This would seem to have the effect of making the question of personal capacity dependent on the law of tlie domicile at the date of the execution of the deed. Such a result seems to be in accordance with good sense, and is laid down by "Wharton as the true result (§ 570), although Westlake (§ 86) makes the question of capacity dependent on the law of the last domicile exclusively. Whatever the law may be, it is the same in England, Scotland, and the United States (see Jarman on Wills, pp. 2 and 4). As regards real estate, again, in these three countries an incapacity existing by the lex rei sitce must receive effect. There seems to be some doubt as to whether an incapacity existing by the law of the domicile should receive effect, as well as any that exists by the law of the situs. Lord M'Lareu thinks it should (Wills and Succession, i. § 44), but Wharton, §§ 570 and 572, and Westlake, § 165, conline themselves to a consideration of the rule of the lex situs, the former approving the doctrine of the text.] Form of mortis causa Deeds. S 370. The form of the testament must be determined on the same principles. All those systems of law, however, which look upon succession as an universal succession have, by force of custom, incorporated the rule " locus regit actum," both in moveable and in real succession, without drawing any distinction in this respect between judicial and extra-judicial forms.^* ^ Burge, iv. p. 451 ; BouUenois, ii. p. 194. " 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 TJbald, in L. 1, C. de S. Trin. No. 83 ; Alb. Brun. dc Stat. x. § 56 ; Alb. de Eosate, L. 1 , qu. 46, § 1 ; Hugo Grotius, Epistolcc (Amstelod 1687, fol.), Nos. 464-467 ; Eodenburg, ii. c. 3, § 1 ; Christianajus, m leg Municip. Mechlin tit. 17, art. 1, No. 9; Stockmans, Leds. Brabant, decis. 9, No. 1 : " Hodie sine hesi- talione judicamus sufficere sollennitates, jum ohtinent in loco confeciionis; " Bartolus, in L. 1 C. de S. Tiin. No. 36 ; P. Voet, 9, 0. 2, No. 1 ; Mynsinger, Observ. Cent. v. observ. 20, No. 4 (illustrating the practice of the lieichskammergericht) ; Gaill, Observ. ii. obs. 123, No. 1 ; Carpzov. Defin. forms. 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, Becis. Fris. iv. 1, defin. 14 ; Cocceji, dc Fund. vii. § 1 ;' Se"ei-, p. 24 ; Mevius, in Jur. Luh. qu. 6, § 43 ; Petr. Peokins, de Testam. Conjug. iv. c. 28 § 9 Tziegler, Dicast. concl. 15, § 16 ; Vinnius, ad Jur. ii. 15, § 14, No. 5 ; Dion Gotho- fre'dus ad Leg. 20, D. de jurisdict. 2, 1 ; Vattel, L. ii. ch. 8, § 111 ; Hommel. Rhaps. Quasst. vol. ii.' obs. 409, No. 5 ; Hert, iv. §§ 23-25 ; Merlin, Rip. Testament, sect. 2, § 2, art. 6, No. iii sect. 2, § 4, art. 1 ; D'Aguesseau, CEuvr. iv. p. 637 ; Ricci, p. 533 ; Gottingen Faculty of Law (in Bbhmer, Rechtsfalle, vol. ii. p. 81) ; Boullenois, i. p. 422 ; Titius, Jus. Privatum, i. c. 10 §§ 34, 35 ; Bouhier, chap. xxv. No. 61 ; Cochin, (Euvres, i. p. 545 ; Mittermaier, § 32, p. 121 ■ Von Grolman, Anonymous Papers on Holograph and Mystic Testaments, p. 20 ; Gliick, 8l4 bar's IMTERNATJONAL LAW. [§ 370 All systems of law, whether the succession be universal or not, have done so as regards moveable succession.^^ The result is that it is sufficient to observe either the lex loci actus or the lex domicilii, provided that there is no doubt that the testator intended to make a will. It is quite in keeping with the permissive character of this rule,^^ that the law of England and that of the United States should hold the form of the testament, in so far as succession in moveables is concerned, as governed by the law of the domicile, primarily, and that in earlier times it should have done so exclusively." ^^ We can also understand how it comes to pass, since the principle of universal succession has not, as yet, fully made its way into these systems, that, in countries in which English common law prevails, real estate is held to be solely governed by the lex rei sitce. For, as we have seen, the rule " locus regit actum " does not apply to the acquisition of real rights over particular things.^^ Pandects, i. p. 291 ; Seuffert, Comm. i. p. 258 ; Renaud, i. § 42, note 21 ; Gand, No. 679 ; Savigny, § 381 ; Guthrie, p. 322. Judgments of the Supreme Court of Appeal at Wiesbaden, 16th October 1822 (Nahmer, 2, p. 171) ; Supreme Court at Berlin, 3rd April 1857 (Striet- horst, 23, p. 353) ; of the Court of Cassation at Paris, 30th Nov. 1831 (Sirey, 32, i. pp. 51-58) ; Wachter, ii. pp. 191, 370, 371 ; Schaffner, p. 188, and authorities .cited there. The Hanoverian order of 29th Oct. 1822 gives validity to the testamentary dispositions of Hano- verian 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 Hauover must be entered upon in court, did not need that formality abroad. Fiore, § 404 ; Laurent, vii. § 411, but see below ; Brocher, ii. p. 39 ; Vesquei). Piittlingen, p. 278 ; y. Martens, § 76, note 7 ; express provision of the law of Russia, see Serebrianny, J. xi. p. 359, but see below, note 21. Peruvian Code, § 679 (see Pradier Fodere, J. vi. pp. 268, 269). '^ Thbl, § 83, note 4, seems desirous of confining the rule to public testaments. That is undoubtedly counter to the communis opinio. See Foelix, i. § 69. ^^ For the permissive force of the rule, see in modern times Savigny, § 381 ; Guthrie, p. 319 ; Wachter, ii. p. 377 ; R. Schmid, pp. 97, 98 ; Lawrence Wheaton, iii. p. 123 ; Asser- Kivier, § 63 (p. 121) ; Weiss, p. 861, and the instructive judgments of the old Sup. Ct. of Baden of 24th April 1862 and 23rd April 1863, given by Seuffert, xviii. No. 104. The opinion that in these matters the rule " /ocus regit actum " has a compulsory, and not merely a permissive force, has hardly any support. " Phillimore, §§ 864, 865 ; Beach-Lawrence ut cit. ; Wharton, § 585. Art. 19 of the treaty of the Spanish-American States of 1878 expressly provides: "Foreigners may test in these countries according to the laws of the country of their birth or of their naturalisation, or according to those of their domiciles. Lehr, Dr. civ. anglais, § 927. The practice of the United States seems now to recognise in moveables the rule " locus regit actum-," see Wharton, § 588. Lord Kingsdown's Act [1861, 24 and 25 A'^ict. c. 114] now regulates the practice in England and in Scotland. As regards moveables, this Act did not extend the law of Scotland further than it had gone before its date. ^^ A person who has lost British nationality cannot make a valid testament in English form abroad (J. xii. p. 120). [Bloxam o. Favre, 1884, L. R. 9, P. D. 130. See also Re von Buseck, 1881, 9 P. D. 130.] " The following favour the lex rei sitae : Burgundus, vi. ; Cujacius, Consult. No. 3 (but in his Oftscrt. 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, §§ 474-478 ; Wheaton, §587. Tliese 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 tliat, up to modern times, there were two separate forms for wills, according as they dealt witli moveables or immoveables, and that the Statute of Wills (7 AVill. IV. and 1 Vict. cap. 26) was § 370] FORM OF MORTIS CAUSA DEEDS. 815 The personal law of the testator may exclude the application of the rule " locus regit actum " either altogether, in which case subjects of one country living in another would often be prevented from executing any settlements, or to a certain extent.^" (U.g. it may do so in some such fashion as by refusing to recognise private settlements even although they are made abroad.) The code of the Netherlands, for example, has excluded tlie rule partially in its 962nd article, and by a decision of the Paissian Senate in 1875,^^ purely verbal testaments made in a foreign country by a Kussian are not recognised. Accordingly, if we go strictly to work, we must, if a question is raised about the settlement of a foreigner made in the form of the lex loci actus, first ascertain that his personal law does not contain any such prohibition. Since the personal law which rules matters of succession is the personal law which regulated the personal interests of the testator at the moment of his death, the testament, if it is to be maintained by reference to the personal law, and is not to be supported by the rule " locus regit actum," must, as regards its form, comply ^^ with the personal law which the testa- tor had at his death. If the rule " locus regit actum " is applied, then, of course, a testament which has once been validly executed in conformity with the lex loci actus will 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, will be invalidated if the law of the first means of introducing 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. 591-593, ii. p. 188. For the lex rei sitce, see Field, § 595. Lehr, Dr. civ. ang. §§ 924-926. 2° Thus Asser-Rivier, p. 138, note 2. On the other hand, the Sup. Ct. of Spain, in an interesting judgment of 6th June 1873, declared the validity of a holograph testament made by a Frenchman, even with reference to real estate situated in Spain, recognising the personal law as regulative. See Torres-Campos, p. 292. All the treaties as to jurisdiction reported by Krug contain 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 the 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 particular 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 purcdy legal deduction, and if, therefore, the form of any instrument were necessarily regulated by the law of the place where it was executed, then it would be quite out of place to speak of an exception, in cases, that is, where the law of any State expressly desired to exclude the rule. 21 Serebrianny, J. xi. p. 363. ^ See Picard (J. viii. p. 487) : " La volontS du testateur n'ayant son expression definitive que par la mart. " ^ Fcelix, i. p. 263 ; Schiiffner, pp. 195, 196 ; 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, taking the will with him, 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." 8l6 bar's INTERNATIONAL LAW. {NOTE KK his latest domicile requires some different form.^* This logical deduction is broken through by Lord Kingsdown's Act of 6th August 1861 (24 and 25 Vict. c. 114), applicable in England and Scotland. By it the testa- ments of British subjects are held to be well executed, if they are in conformity either with the law of the testator's domicile at the date of execution, or with the law of the domicile of origin, or with the Ux loci actus. It is expressly provided at the same time that a change of domicile shall never invalidate a testament which has once been validly made. These provisions ^^ are very useful in practice for a country, the subjects of which travel so much, but they are by no means obviously correct. NOTE KK ON § 370. FORM OF MORTIS CAUSA DEEDS. [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 Ens^lish, 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 dealing with moveables effectual (Purvis' Trustees v. Purvis' Executors, 1861, Ct. of Sess. Eeps. 2nd ser. xxiii. 812), the law of the testator's last domicile being also admitted as regulative of his testamentary dispositions 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 wills executed by persons who are not British subjects, the law of England will continue to require observance of the law of the last domicile (Bloxam-y. Favre, 12th February 1884, L. Pi.. 9, P. D. 130), even although they may have been so at one time and have lost their nationality, e.g. by marriage: the law of Scotland will recognise the lex loci actus as well as that of the domicile. With regard to real estate, the rule in England and Scotland formerly was that the form of testamentary deeds was regulated by the lex rci sitcc -* See in this sense 'Wacliter, ii. p. 382 ; Unger, p. 208, note 190 ; Asser-Rivier, p. 138, note 2. Cogordan, p. 132, in relation to the effects of naturalisation, takes a different view ; V. Martens, p. 323 (§ 76, note 8), and Muheim, p. 256. V. Martens refers to English authors. This is inapposite, for they are dealing with Iiord Kingsdown's Aet. 25 SeeonthisActWestlake-Holtzendorff, §§81c«sej.;Lehr, ZJr. Civ. Aug. §927; Wharton, §586. § '^''^^ HOLOGRAPH TESTAMENT. 817 solely, and in England this is still law. In 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 formal requisites of such deeds, to that appHcable to deeds dealing with moveables, and hence the provisions of the lex loci actus, if observed, will sufficiently establish the validity of such a deed. In Connel's Trustees V. Connel (1872, Ct. of Sess. Eeps. 3rd ser. x. 627) it was held that under the terms of this Act an English will containing a conveyance of Scots heritage, 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.] Execution of a Holograph Testament. § 371. It is doubtful, and has been made matter of debate, whether the 999th article of the French Code declares merely that the rule " locus regit actum " is a rule that may be used by any one who pleases, and thus simply applies that rule as a permissive rule of law, or whether it ties up a Frenchman, who wishes to test in a foreign country, to a choice between the holograph testament of French law and the authentique or public or official testament of the country in which he happens to be, so that testaments which are not executed by public officers or notaries, and are not holograph, must be declared invalid, e.g. testaments made before seven witnesses in a country where the common law of Eome prevails. The article of the code in question provides : " Un Frangais qui se trouvera en pays MraTU/er pourra faire ses dispositions testamcntaires, par acte sous signature privde, ainsi qu'il est prescrit en I'article 970, ou par acte authentique avec les formes usit^es dans le lieu oil cet acte sera passS."^^ The literal sense of ^^ Cf. judgment of the Cour de Paris, 30th'November 1831 (Sirey, 32, i. pp. 51-58). See provisions of a similar kind in articles 992, 982, of the Code of the Netherlands, and in a Grecian statute of 1830 (Sehaffner, p. 194). It is only an apparent exception to the rule "locus regit actum" if by the law of any place in particular, testamentary forms are confined to the subjects of a country or the citizens of a town, a case that seldom occurs nowadays. Cf. Sehaffner, p. 190. The older French law (see Bouhier, cap. 28, No. 20 ; Boullenois, ii. pp. 75 and 97 ; Merlin, U6p, Testament, § 2, 4, art. 1) gave the inhabitants of these provinces in which holograph testaments were known before the days of the Code Civil, the right of testing in this form in a foreign country, although on the erroneous ground that the question here was one as to a personal capacity which accompanied the individual abroad. Against this see the text, supra, pp. 295, 302. 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 form. Thus, for instance, the special provisions enacted by the Prussian A. L. K. for the execution of testamentary instruments by minors under eighteen years of age (A. L. B. 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 incapacity 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. Brooher (ii. p. 39) takes a sound view. If, 3 F 8i8 bar's international law. [§ 372 the article seems to be that the Frenchman's choice is restricted as we have stated.27 But it looks as if the authors of the Code Civil had thought of the holograph testament of French law as something which is in contrast with the testament public — a variety of which is the testament viystique, mentioned in the 967th article — and then as in contrast with the testament authentique (arts. 968 and 999). Then we should understand as included in the term authentique every testament executed in a form which any foreign country might have prescribed for the protection of all concerned, such, e.g. as a testament made before witnesses ; ^^ and in truth a holograph testament, which, so far as form goes, is very simple, may be described, in contrast with testaments hedged with such formalities, as non authentique. Again, it is very difficult to draw the line between forms which constitute a testament authentique, and those which do not, and thus we are landed in doubts and difficulties, which are all excluded, if we look upon the 999th article as simply being an application of the rule "locus regit actum." Limitations on the Rule "locus regit actum." § 372. Further, we cannot approve of the view which a few authors adopt that a testament made abroad, in accordance with the forms there recognised, by a subject of this country, will only be held valid if the testator has not found opportunity subsequently in his own country to use the forms prescribed by its law.^^ We can conceive such a provision existing, and indeed in one old system of law^" we know that it actuall}' did exist. But the universal law of custom, which lies at the root of the maxim " locus regit actum," decidedly rejects such a limitation, and it is all the more impracticable as, in each particular case, the fact as to whether there was or was not opportunity will be very difficult to ascertain, while, according as individual opinions on this question of fact may vary, the legal interests' involved are exposed to the greatest uncertainty.^^ This besides, we regard the law of the nationality as the law which must in principle regulate questions of succession law, then it, and not the law of the domicile, must decide whether one can validly test in holograph form abroad. Judgment of the Sup. Ct. of Madrid, 6th June 1873 (J. i. p. 39). ^ Laurent, vi. § 411, and the author of the discussion in J. vii. p. 381, especially p. 387. The practice seems doubtful. See Despagnet, § 516. -' The paper cited in the last note reaches the conclusion that a testament subscribed by the testator and two witnesses in the English form should be held to be a testament in forme authentique. The preliminary article 8 of the Italian Code simply recognises the rule " locus regit actum" in its facultative sense as applicable to all deeds " di ultima voluntd." 29 Alderflycht, Privatr. der Stadt Frankfurt, i. 511. '" LubiscJies Stadtr. ii. tit. I, art. 16 : " If one of our citizens die abroad, having made a, testament according to foreign law, that testament will be recognised by onr law. But such a testament must be executed under the presence of approaching death, and not fraudulently and of set purpose to defraud heirs." 31 See Schaflfner, p. 188 ; Savigny, § 381 ; Guthrie, p. 323. I 373] LOCUS REGIT ACTUM. 819 theory rests undoubtedly on 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 domesticoe?^ There is, lastly, just as great error in the theory .^^ 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 appointed by any legislature for the execution of testaments has 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 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.^^ Distinction between Foem and Substance of a Testament. ^ 373. It may at times be doubtful whether a provision of the law has to do with the form of a testament, in which case the rule " locus regit actum " is applicable, or whether it is a proposition of substantive law, e.g affects the capacity of the testator, in which case his personal law, or in other cases the lex rei sitce, would be the only rule for guidance. The tests for distinguishing one class from the other, in their true legal sense, which ■we worked out in § 1 21, may guide our judgment on this matter.^^ We cannot regard a provision that a testament, in order to be effectual, must be executed a certain 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. ^^ Rodentarg, ii. c. 4, § 8 ; and BouUenois, i. p. 427, propose that the lex loci actus shall •not be recognised where the law of the domicile has been deliberately evaded. See, too, the judgment of the Supreme Court at Berlin, cited infra, note 48. 23 Koch on § 23 of the Introduction to the Prussian All. LandrecM. (See, on the other ihand, Fbrster-Eccius, § 11, No. 7 ad fin. 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 published in judicial form." ^ For instance, by the Prussian A. L. R. a testament cannot be made without 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 Fcelix, i. p. 168 ; Savigny, § 382 ; Guthrie, p. 328. ^' Savigny as cited. ^ Many authors, e.g. Bouhier, c. 25, § 61, make a distinction between intrinsic and extrinsic forms, and only allow the rule " locus regit aetum" to apply to the latter. See i. J. 348. 820 bar's international law. [§ 374 the deed, however executed, shall not be recognised as a declaration of his will. This purpose is not consistent with the notion of a mere formal provision.8^ And accordingly, so early as 1734, a French ordinance (arts. 74, 75) declared that the trois mois de survie of the testator, which were required by some provincial laws, constituted a statut Hel to which the rule " locus regit actum " could not be applied. In the same way we do not count it a mere formal provision that the heir-at-law must, as modern Eoman law requires (Nov. 115), be expressly instituted or disinherited. These provisions give the heir-at-law material rights, and it may be possible to discover in them a coercitive provision to regulate the interpretation of testaments, a matter which must, in its tutn, be dependent on the personal law. On the other hand, it is much debated, whether the provision of the 968th article of the French Code, which declares testaments made in common to be null, is to be regarded as a provision on a matter of form, which in view of the rule " locus regit actum " may be left out of account, when a testament is executed in another country.^ I should be inclined, in agreement with the preponderance of practice,^^ to hold it to be a merely formal provision in the true sense of the word, since nothing prevents the testator from making the operation of his own testament dependent on that of another person, if he does so expressly and in a separate testament of his own.*" Effect to be given to the Contents of mortis causa Settlements. Limitations put upon the Testator's Intentions. Prohibition OF Benefits to Particular Persons. § 374. The law which rules the succession generally will on the con- trary, of course, be the primary rule for determining the effect to be given to the contents of mortis causa settlements : that law, apart from cases in which the lex rei sitce affects the matter, is the personal law of the testator. Benefits given by such deeds, the institution of an heir and the gift of legacies, are valid only in so far as the testator was at liberty to leave something to the person whom he mentions. Thus a legacy by a Frenchman would be invalid, left by him, contrary to art. 909 of the Code Civil, to the doctor who attended him in his last illness, or to the clergyman who ministered to him, although neither of these persons was French. We give no general solution of the question which arises in the converse case, whether a doctor or a clergyman of French nationality would be barred from taking anything, where the benefit was given to them by a foreign testator, whose personal law says nothing to the contrary. Weiss thinks *' Mailher de Chassat, No. 23 ad. fin. ; Cochin, (Euvres, i. p. 545. ^ On this controversy see Laurent, vi. §§ 314-319. 39 See Trib. Civ. Seine 23rd December 1881, J. ix. p. 322. *> To this effect Aubry et Rau, v. p. 598, and Brocher, ii. § 144. Laurent takes a different \'iew. He thinks the personal law of the testator should decide. § 374] EFFECT TO BE GIVEN TO TESTAMENTARY PROVISIONS. 82 1 (p. 860) that they would take nothing. The question, however, turns on the consideration whether we are to find in the prohibition a mere protective measure in the interest of the heirs-at-law, and of course in the interest of the testator himself, to protect him from importunity ; or whether it is to be held absolutely incompetent that any clergyman or doctor should on such a title, we do not merely say receive anything, but, if he has received any- thing, should keep it. The 909th article of the Code Civil cannot be said to go so far as that against the doctor or the clergyman. If the heirs-at- law have voluntarily made over the legacy, they will not be entitled to demand repayment. The most that can be said, then, is that on a literal reading of the 909th article *i the law of France declares that no such legacy can be claimed, that the doctor or clergyman cannot demand the legacy in a French court. Thus the legacy is not absolutely invalid : the persons favoured may sue for it, e.g. in the courts of the testator's own country, if his personal law contains nothing to the contrary. A provision such as we find in art. 907 of the Code Civil, which withdraws from minors the power of making mortis causa dispositions in favour of their guardiansi will, on the other hand, only be capable of being enforced, if it is contained in the personal law of the minor whose succession is in question. The question here is a question simply as to a rule for the protection of the heirs-at-law or of the persons who would otherwise have been favoured by the minor ; a rule of that kind may be left to the testator's personal law.*^ Nor can it be said that the guardian by demanding the legacy or claiming as heres institutus, commits any offence against morality or decency, even if his own law should say that he does. His administration has been under the personal law of the ward, and this may very well take the view that, through some other enactments of its own, e.g. the oversight of officials charged with the superintendence of curatories, or the necessity of minors being somewhat more advanced in life \j)rozimi majorennitati] before they can make valid testaments, or the imposition of special forms in the case of minors, any improper actings by the guardian are rendered impossible. The case stands otherwise if the law forbids bequests to particular classes of juristic persons, e.g. churches, etc., or will only allow them to receive effect on special license being given by the sovereign authority (see Code Civil, for instance, § 910). In such cases, the object aimed at is a ^i Weiss deduces from the words, viz. : ' ' Les docieurs en midecine . . . ne pourront profiter des dispositions ... "an absolute incompetency in a French doctor or a French clergyman to take a legacy. Laurent, vi. § 209, deduces indeed from these words, that the question in such a case is a pure case oiincapaciU personelle, and that the law of the person favoured is thus the only law that can be applied. The majority of French authors, on the contrary, favour the law of the testator. See the citations in Laurent. ^ So, too, Laurent, vi. § 208. The like decision must in my view be given with reference to the limitation, imposed by the 908th article of the Code Civil on mortis causa settlements by parents upon their bastards. This is Demangeat's opinion (i. p. 122) and Esperson's (J. viii. p. 227). Laurent, vi. § 211, takes the peculiar view that the limitation must exist by the law both of the parent and of the child. That would result in a sort of penalty upon the child. 822 BAliS INTERNATIONAL LAW. [NOTE LL double one: an estate shall not be withdrawn from the next-of-kin, or shall not be withdrawn from them for inadequate causes; and, on the other hand, the property of the "dead hand," as it is called, shall not be augmented at pleasure. A juristic person, therefore, takes only if it has capacity to do so both by the law of the testator and by its own law.** If the one law, like the other, makes the acquisition of the property dependent on special authorisation by the State, then this double authorisation must be procured." If real estate is the subject of a bequest, and that real estate lies in a third country whose law again makes a special authority necessary to legalise the acquisition of real estate by any juristic person, or by the kind of juristic person in ques- tion, then, if the favoured foundation desires to possess these estates in natura, a triple authority must be obtained. NOTE LL ON § 374. LIMITATIONS ON THE TESTATOR'S POWERS. [The English law of mortmain, whereby real estate may not be devised by will to charitable institutions, depends on the statutes 9 Geo. II. c. 36, re-enacted by 51 and 52 Vict. c. 42, which are confined in their operation to England. These statutes have been interpreted to the effect that their provisions have no application in a case in which a charitable bequest payable to an English charity is to be satisfied out of real estate, which does not lie injEngland (Beaumont ■;;. Oliveira, 1868, L. E. 6, Eq. 534). But, on the other hand, English land will not be allowed to be taken by a foreign charity (Curtis v. Hutton, 1806, 14 Ves. 537). As stated by Westlake (§ 165, p. 191), "all questions concerning a restraint on the alienation or disposition of immoveables are to be decided by the lex situs." The Mortmain Acts go further than a mere prohibition against charities taking the testator's lands in specie. It is equally impossible under their provisions, e.g., for Scots trustees to realise the truster's estate in England and hand the proceeds in cash to Scots charities (see opinion of Mr Justice Kay furnished to the Court of Session in the case of Hewitt's Trustees v. Lawson, 1891, Ct. of Sess. Eeps. 4th ser. xviii. p. 793).] The Scots court, in the case of Boe v. Anderson, 1862 (Ct. of Sess. Eeps. 2nd ser. xxiv. p. 732), held that the validity of a bequest for charit- able purposes must be determined by the law of the testator's domicile. If invalid by that law, it could not receive effect in a foreign country. The ground of the decision is that, as the legatees take their interest, if any, under the law of the testator's domicile, that law must be examined to see if their title to claim their legacy is good. If that law gives legatees of their character no title, then their claim must be rejected. *^ In English practice the validity of a bequest ad piam causam, in so far as moveables are concerned, depends primarily on the lex domicilii. See Westlake-Holtzendorff, § 114, note. " So, too, Brocher, ii. pp. 22, 23 ; Weiss, pp. 576, 852 ; Hingst (Rev. xiii. p. 408) reports that in Holland a royal license is considered necessary to enable a Dutch foundation to receive legacies, even when the estate bequeathed is real estate situated abroad. See, too, Laurent, vi. § 280. § 375] LIMITATIONS ON THE TESTATOR'S POWERS. 823 Again, the case may well occur that a person makes an universal settle- ment, disposing of both moveables and heritage situated in different countries. He gives by this settlement certain benefits out of the moveable estate to the person who would, failing a settlement, take his foreign heritage by the law of the country where it lies, but disposes of that heritage to some other beneficiary. His settlement is found according to the lex situs to be inopera- tive as regards the foreign heritage. Is the heir in that heritage entitled to take the benefits given to him by the settlement, and also urge his right to take the foreign heritage ah intestato ? Or is he compelled, if he shall approbate the settlement by taking under it, to forego his right to the foreign heritage ? The principle adopted both by the law of Scotland and England is that the law of the domicile of the testator shall give the rule, that the settlement, executed in accordance with its provisions, shall receive full effect, and that the heir shall be called on to make his election. Thus the foreign real estate, if the heir gives it up, will go to the beneficiary favoured by the deed which was inoperative, although, no doubt, it disclosed, plainly enough, an intention on the part of the testator. In this way the law of the domicile may be said to affect indirectly real estate situated in another country (Dundas, 1830, H. of L., 4, W. and S. 460 ; Xer v. Wauchope, 1819, H. of L., 1 Bligh, 1 ; Trotter, 1829, H. of L. 3, W. and S. 427, Westlake, § 125). But if the person who takes the double benefit under the will shall not, by his renunciation of his right to the foreign heritage, give it up to the uses of the will ; if the foreign law, e.g. by the Mortmain Acts, withdraws the heritage, on the renunciation of the heir, from the operation of the will altogether, then the heir will not be called on to elect : he will be allowed to take both his provision under the deed, and the heritage ah intestato (Hewitt's Trustees v. Lawson, 1891, Ct. of Sess. Eeps. 4th ser. xviii. p. 793). Limitations on the Poweks of the Testatok. Pkohibition oe Substitutions and of Entails. § 375. Limitations on the power of the testator freely to give effect to his wishes as regards mortis causa dispositions are of course effectual for international purposes if they are recognised by the law which regulates the succession generally. Thus, in so far as the principle of -an universal succession is recognised, such limitations, if in accordance with the per- sonal law of the testator, will be effectual even as regards estates situated in another country.*^ It will, therefore, be out of the question to apply the rule " locus regit actum."^'^ ■*5 According to Vattel, ii. ch. 8, § 111 ; Boullenois, i. p. 443 ; iv. p. 217 ; and Story, § 473, the lex rei sitae will rule. According to "Wiichter, ii. p. 366 ; Savigny, § 377 ; Guthrie, p. 283 ; Seuffert, Comm. i. p. 259 ; Holzschuher, i. p. 80 ; Foelix, i. pp. 261, 262 ; Koch, on § 23 Introduction to Prussian A.L.E. (i. 1, p. 56); judgment of the Supreme Court of Appeal at Cassel, 28th October 1840 (Seuffert, i. p. 98); judgment of the Supreme Court at Berlin, 3rd April 1867 (Striethorst, 23, p. 354); Roth, Z». Privatr. § 51, note 118 ; and Fiore, § 407, the lex domicilii. ^ Rodenburg, ii. c. 5, § 8 ; Hartogh, pp. 134, 135 ; cf. judgment of the Supreme Court of 824 bar's international law. [§ 375 This rule is applicable to the question of the competency or incom- petency of conditions, substitutions, and entails. Accordingly, a French testator — in so far as the lex, rei sitae does not recognise succession as a singular succession *^ — is bound by the provisions of articles 896-899 of the Code Civil, which forbid entails or substitutions, as the French law calls them, even as regards real estate situated abroad.*^ Such a pro- hibition has, however, at the same time, an immediate real effect : the law will not allow any such limitation on the right of property. Accordingly, even a foreign testator cannot leave his real estate in France to any one under the restrictions of an entail. An entail will thus be prevented, whether it be incompetent by the personal law of the testator or by the lez rei sitce.^^ The same rule holds if by the lex rei sitce a liferent cannot 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); Schaffner, p. 198. In the case suggested by several writers {e.g. Wachter, ii. pp. 366, 367) 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, Rodenburg, ii. c. 5, §§ 3, 4 ; Hert, iv. 23 ; D'Aguesseau, (Euvres, 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 actiiTn" 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. These cases, although historically a remnant of Germanic theories of law, constitute nowadays an enlarged right in the heredes legitimi, who, in the division of the succession, are secured not merely in the value of the property which they take as heirs, but must get the particular items of which it consists. *' Very often this exception is disregarded. ^* Savigny, § 377 ; Guthrie, p. 283 ; R, Schmid, p. 100 ; Brocher, ii. p. 54 ; Laurent, vi. § 328, especially p. 558 ; Sup. Ct. at Berlin, 8th May 1865 (SeuflFert, xx. § 4). This judgment, however, does not treat the case as one of legal incapacity to act ; Esperson, J. ix. p. 237 ; judgment of the C. de Paris of 7th Aug. 1883 (J. xi. p. 192). <" Aubry et Rau, i. p. 84; Savigny, ut cit.; Schmid; Bouhier, cap. 27, §§ 91-93; Weiss, p. 865, note 2 ; Wharton, § 598 ; judgment of the Rhenish Ct. of Cass, at Berlin, 9th July 1823 (Volkmar. p. 235). [Freke v. Carbery, 1873, L. R. 16, JSq. 461.] (reported by Westlake, Rev. vi. p. 390). The rule of English law, by which the testator can direct the accumulation of the rents of his property for a limited time only, is applicable to the landed' estate of a foreign testator situated in England. See v. Martens, § 76, p. 323 ; Laurent, vi. § 328 ad fin. is indistinct. If the entail is lawful, but only with the license of the Government, then in certain circumstances a license from the Government of the testator's country may be required, in addition to one from that of the lex rei sitce. In doubt, the latter only is required, except in so far as the rights of persons entitled by law to a share in the estate are concerned. The law of the place where the estate lies, however, will always and exclusively 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 foiiner 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 inherit- ance. Stobbe, % Si ad fin. gives the same result for the case of an entail by mortis causa deed, except that of course he insists upon. the rights of heredes legitimi, and those who are by law entitled to claim a share of the succession being recognised. But a prohibition of NOTE JfJ/] VALIDITY OF TESTAMENTARY PROVISIONS. 825 be constituted in favour of several persons in succession one to the other. If, by the personal law of the testator, moveables can be made the subject of an entail, it matters not that such an entail is, by the law of the place where this or that particular thing at the moment happens to be, illegal. The validity of the settlement is not affected. An article is incap- able of alienation only if the law of the place where the thing is recognises that it is so, and a change of situation will remove this peculiarity.'^" ^^ If the legatee cannot take some specific thing that has been bequeathed to him in consequence of a provision of the law of the place where the thing is — a case which will occur but very rarely in these days when the principle of the equality of foreigners and natives in the eye of the law is almost universally recognised, and when the adherents of different religious professions are all treated alike — the question whether the legatee is entitled to the value of the thing must be decided by the intention of the testator, i.e. as a rule by his personal law.^^ An obligatory duty laid upon any person by a testament is invalid if the law of the place where the duty is to be discharged forbids it.^* NOTE MM ON § 375. VALIDITY OF TESTAMENTARY PROVISIONS. [The validity of a condition iu restraint of marriage was held by the House of Lords to be determined by the law of the testator's domicile (Ommaney v. Bingham, 1796, 3, Pat. App. 448). The limitations imposed upon testators by the Mortmain Acts and other similar rules have already been considered, supra, p. 822. It has been held in Scotland that, although by the law of that country moveables, e.g. jewels, cannot be entailed, there is nothing to prevent the will of a domiciled Scotswoman, who has directed such moveables to be settled along with English real estate (the law of England recognising the possibility of settling moveable property in that way) from receiving effect. The principle of the decision seems to be that the intention is not unlaw- ful, but fails in Scotland from want of legal machinery to carry it out : if England can supply this machinery, there is nothing in public policy to prevent it (Marquis of Bute v. Lady Bute's Trs. 1880, Ct. of Sess. Ca. 4th ser. viii. 191). If the law should, for reasons of public policy, forbid a testator to make this or that disposition of his property, e.g. forbid him to direct ■entails, conceived as it is in the Code Civil (see also Italian Code, § 899), goes further : an « See Windscheid, Fand. iii. § 574. 61 To the contrary effect C. d'Aix, 21st March 1882 (J. ix. p. 541). • «2 On the challenge of gifts inter vivos, see supra, § 285. 828 bar's international law. [note NN NOTE NN ON § 376. HEREDES LEGITIMI. [The laws of England and Scotland adopt the doctrine of the text ; for the former, see Westlake, § 122, p. 132; for the latter, the leading case of Hog V. Lashley, 1792, 3 Hagg. Eccl. 415, and 3 Paton's App. 247, and that of Kennedy v. Bell, 1864, Ct. of Sess. Eeps. 3rd ser. ii. p. 587. 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 v. Trevelyan, 1873, Ct. of Sess. Eeps. 3rd ser. xi. 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.] CONSTEUCTION OF TESTAMENTS. § 377. No general rules can be laid down for the interpretation of mortis 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 his family affairs, the author of a 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 contracts ; 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 expres- sion in use at the place of execution should be observed ; ^^ and accordingly the appropriate interpretation is as a rule that which the language in use at the testator's domicile, be it ordinary colloquial language, or technical language, requires.** We can, however, imagine cases in which the testator may express himself in the language of the place where the thing in ^ Ct. of Bourdeaux, 17th July 1883 (J. x. p. 631) ; a testament was not necessarily to be interpreted by foreign law, because the testator, who was spending some time in a foreign country, had used a foreign form. ^ The following support the interpretation according to the terms and language of the domicile : — Hert, iv. 25 ; Molinffius, in L. 1, C. de. S. Trin. ; Jo. a Sande, Decis. Ins. iv. tit. 8, defin. 7 ; Fcelix, i. p. 262 ; Burge, ii. 857, iv. 591 : Story, § 479 et seg. A will executed in Scotland by a born Scotchman, 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 who must be presumed to be instituted under a destination to heirs-at-law (Burge, ii. pp. 857, 868 ; Story, § i79h). 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. R. i. 9, § 369, 370 ; cf. L. and %7,C. de cad. toll. 6, 51 ; L. 59, 101 ; D. de cond. 35, 1. For the lex domicilii see Phillimore, §§ 870, 871, 878 ; Westlake-Holtzendorff, § 160. § 377] CONSTRUCTION OF TESTAMENTS. 829 question is situated,^* or may be 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.''^ It will often be matter of doubt, whether we are to construe the language used by reference to the forms of expression known at the domi- cile, or those known in the native country of the testator. The whole scope of the testator's language must be taken into account, and we must also consider the circumstance whether the testator has or has not had for a long time the same domicile furth of his native country. If we take a man's national law as the law which on principle should prevail, we must in doubt construe the provisions of his last will in the sense which this law puts upon them, and construe his expressions as the language of his native country would be construed. When a man is making his last arrangements for the affairs of his family, he will generally be more likely to think of the country of his nationality, than he would be in making a contract of ordinary everyday life.®^ "We should not, however, feel ourselves constrained, in a pure question of construction, where a change of domicile or of nationality had taken place, to regard the last personal law of the testator and the language in use at his last domicile as the' proper test. The testator has declared himself in the language of the personal law which at one time was his, and has used its expressions. If he had desired to alter anything subse- quently, he could have made a new will.^^ Older writers interpreted a man's testament as regards immoveables by the lex rei sitce, and Wharton (§§ 592 and 597) still represents this point of view. We can only assent to this principle of construction in special circumstances. Although Wharton seems desirous of giving a preference to the law of the last domicile in cases in which, according to his view, the 55 How is the case to be decided where a testator, belonging to coiantry A, leaves to B, who belongs to another country, a legacy payable on B attaining majority ? Is it the law of A or of B that is to determine the date of majority. In English practice it has been held [in re Hellmann's Will, 1866, L.R. 2, Eq. 363], that the court will recognise as major one who is major by the law of his foreign domicile, though still minor by the law of England, but will not pay a legacy to a father as the guardian of foreign infants, although the law of their foreign domicile authorises such payment. In my opinion, the question would be whether the postponement of payment was intended to confer an advantage on the person burdened with the payment, or to ensure the interests of the legatee, the legacy not to be entrusted to his guardians. In the former case the law of the testator, in the latter that of the legatee, will rule. 86 BouUenois, i. p. 503 ; Savigny, § 377. Guthrie, p. 283, upholds the interpretation in most cases according to the law of the last domicile. ^ Laurent, vi. § 303, does not in such cases give an absolute preference to the loi nationaU, but in doubt he pronounces in favour of it. Weiss, p. 864 ; Despagnet, § 519. 68 So, too, Laurent, vi. § 308. If the testator provides that the succession shall take its course as by law, the course of succession is that which prevailed at the domicile which the testator then had, and a subsequent change of domicile will make no change upon the law which is to be followed (so decided by the German Imp. Ct. ; see Stobbe, § 34, note 55). This decision cannot be applied in every case in which the testator says that he leaves his succession to be ruled by the law. 830 bar's INTERNATIONAL LAW. [NOTE 00 domicile is the consideration which is to guide the decision, he seems by that to mean no more than that coercitive rules of construction on the one hand, that is, provisions which are in truth directly made by the law itself, must be applied according to the rules of the law of the last domi- cile, and that, on the other hand, a construction put upon a testament by a court of the last domicile must be recognised in other countries.^® NOTE 00 ON § 377. CONSTRUCTION OF TESTAMENTS. [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 con- struction (Mitchell & Baxter v. Davies, 1875, Ct. of Sess. Eeps. 4th ser. iii. p. 208). These questions were under review in the recent cases of Brown's Trs. 1890, Ct. of Sess. Eeps. 4th ser. xvii. p. 1174, and that of Smiths, 1891, Ct. of Sess. Eeps. 4th ser. xviii. p. 10.38. In the former of these cases. Lord Fraser held that the presumption in favour of the law of domicile at the date of death, was displaced by the facts that that was a derivative domicile taken by the testator, as a married woman, from her husband ; that the settlement was executed in another country, by a lawyer of that country, in his own terminology, and created a trust the domicile of which was also in that country. In questions as to real estate, the law of Scot- land holds that the lex rei sitce will rule, but it has been decided that the terms of a foreign deed, executed by a domiciled foreigner, dealing with Scots heritage, and using technical terms of foreign conveyancing, will 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 conveyancers (Studd, 1880, Ct. of Sess. Eeps. 4th ser. viii. p. 249). The import of this decision seems to be that, although the lex rei sitce will be presumed in cases of real property to be the test for the interpretation of ordinary, non-technical language, or of words which have a technical meaning in the law language of the siius, still, if technical foreign words are used, these must be translated with the help of foreign lawyers, so that the intention of the testator shall receive effect. If words are used which have a technical meaning both in the language of the situs, on the one hand, and in that of the place of the execution or of the drafting of the deed, or of the testator's domicile, or what- ever may be the law which comes into competition with that of the situs, on «9 The question whether a legacy, which has not been reduced into possession by the legatee himself, falls to his heirs, or rather to the heirs of the testator, or to the person who would be liable to pay it as a burden, must be determined by the personal law of the testator. Laurent, vi. § 313, who seems to reach the same result that it is a question of the construction of the testator's intention {question de volonU). That may be the case. But in many instances the testator will not have made the thing clear to himself (see art. 1039, of the Code €ivil, and art. 890 of the Italian Code, which to some extent takes a different view). § ^''^] POWERS OF EXECUTORS. 83I the Other, then the whole circumstances of the case must be scanned, in order to arrive at the testator's intention, the court being, however, always guided by the presumption in favour of the lex situs in cases of doubt. The principles of the law of England, both as regards moveable and as regards heritable property, seem to be identical with those that have been applied in Scotland. For the rule in the case of moveables, Westlake, § 123, and Bradford v. Young, 1885, L. E. 29, Ch. D. 617, may be consulted. As regards heritage, see Westlake, § 170, and cases there cited.] EXECUTOES OF A WiLL. § 378. The powers of executors nominate must, logically, be deter- mined by the testator's intention, ascertained, it may be, by construction, find by his personal law, in so far as this latter law is held to be regulative generally of questions in the succession. It would lead to intolerable contradictions if the rights of executors were to be determined by one law, while the rights of heirs and legatees were determined by another.'" Even the provision of the 1031st article of the Code Civil^'^ which only empowers the executor of a will to realise the moveables in exceptional cases, cannot be applied if the personal law of the testator gives the executor wider powers. It will be impossible to say that in such a case the question is one as to imposing a limitation on property, which is not sanctioned by the lex rei sitce (see Code Civil, art. 541). The freedom of property situated in France will not be permanently prejudiced by such sales, and it is certain that commerce will not be impeded. The only matter in question is the right of the heirs. The opposite view would give rise to the most irritating complications. Of course, however, the executor, even when named by the testator, is bound by the general restrictions which the lex rei sitce imposes on the assumption of the possession of the assets belonging to the estate (see below, § 383). NOTE PP ON § 378. POWEES OF TRUSTEES. [The powers of an executor will by the laws of England and Scotland be determined by the laws of the deceased's domicile, any express powers conferred on them by the deceased being, of course, recognised, unless these are against public policy. Where, however, a testator has appointed a continuing trust with a local habitation in another country, e.g. for the establishment of a system of charitable education there, then the law of '" In this connection, see Laurent, vii. § 168. 71 Laurent («< cit.) is, by his theory of ordre public or lois de police, forced to declare this 1031st article to be a Statut riel. See the Dutch decision reported by Hingst (Rev. xiii. p. 408). " If by the Dutch law, the lex m site- the executor needs a special authorisation for realising immoveables, then in every case an authorisation granted ^by the court to wliose jurisdiction the testator belonged is sufficient." 832 bar's international law. [note PP that country will regulate the conduct of the trustees appointed for the management of the bequest, and will interpret according to its own rules the succession to the original trustees prescribed by the truster. If he has used, for instance, the term " heirs '' of the original trustees, the law of the place of administration will read the word " heirs " in its own sense. (Att. Gen. v. Lepine, 1818, 2, Sw. 181 ; Emery v. Hill, 1, Euss. 112 ; Ferguson v. Marjoribanks, 1853, Ct. of Sess. Eeps. 2nd ser. xv. p. 637 ; and Lord Deas in Boe v. Anderson, 1862, Ct. of Sess. Eeps. 2nd ser. xxiv. at pp. 755 et seq.) The law of the situs will determine the powers of trustees of a domi- ciled foreigner vested with heritable property. But while the powers of the trustees will, like other questions as to the import of the will of the deceased, be determined by the law of his domi- cile, or of the situs of real estate, as the case may be, the courts of any country in which trustees can be personally made liable, by reason of their presence within the jurisdiction, may interfere at the suit of a beneficiary to compel the trustees to do their duty, and may for that purpose entertain whatever process is most suitable. In England, the fact of the presence of trustees will justify what is known as an administration suit. But while courts have jurisdiction, in such circumstances, to see that trustees carry out the trust committed to them, it may very well be that they should refuse to exercise the jurisdiction, because the courts of some other country present a more convenient forum. While these statements are true of trusts with continuing powers of administration, they are not applicable to the case of executors ; the juris- diction to appoint them and to control their actings is purely territorial. See Orr Swing's Trs. 1885, Ct. of Sess. Eeps. 4th ser. xiii. (H. of L.) 1, and infra, pp. 839, 840, and also pp. 937, 938.] Eevocation of mortis causa Peo visions. § 379. The recall of a mortis causa provision, by a final act of the testator himself, e.g. by his selling something which he had bequeathed as a legacy (cf. Code Civil, § 1038), is, of course, to be submitted to the test of the law which regulates the succession generally, without any regard to the place in which the act involving the recall was done.^^ The rule "locus regit actum " is, however, the rule applicable to a recall effected by some special formal docu- ment.''^ But, since it is by no means necessary that an act which destroys some legal relation should have this destructive effect by the lex loci actus; since indeed it is quite sufficient — unless where in tlie case of real rights the lex rei sitce has to be observed — that the loss of the legal relation in question should follow according to the rules of that law which regulates the material import of the legal relation ; the recall of a testament, e.g. by a ''' See Brocher, ii. p. 50. " Ger. Imp. Ct. (i.) 7th July 1883 (Dec. xiv. No. 43, p. 183). § 380] TAKING UP THE SUCCESSION. 833 deliberate cancellation of the document, will be effectual, if the persona law of the testator recognises such a cancellation, and in spite of the fact that this form of cancellation may be unknown at the place where the cancellation took place.'* If a subsequent testament validly executed recalls a prior testament, then, in virtue of the rule "locus regit actum" the same effect must be produced by a subsequent testa- ment executed in another country and valid by its iaw.'^ The cancel- lation of a testament by some particular events,''^ e.g. the subsequent birth of children, is in the same way to be decided by the law which regulates the succession generally.^' Contracts as to Succession. § 380. Contracts as to succession are substantially to be dealt with according to the same rules as testaments. Thus, unless the lex rei sitce in some exceptional cases falls to be applied, the last personal law of the testator will rule. In mutual contracts the law of the first deceasor will govern.'* Of course, by an alteration in the personal law, it may be brought about that a contract as to succession which was originally valid, should become invalid or at least challengeable, if, for instance, the last personal law of the testator rejects such contracts altogether, or if it gives heredes legitimi larger rights of challenge. But the freedom to change one's domicile, to emigrate, and to change one's nationality, cannot be impaired by virtue of a contract as to succession, which cannot in any case be presented as a perfectly secure right of property. III. TAKING UP THE SUCCESSION AND EEDUCING LEGACIES INTO POSSESSION. General Principles. § 381. Special difficulties may be raised in connection with the taking -possession of successions and legacies, or with the renunciation of them,^ on '■* Despagnet, § 521 : App. Ct. Hamburg, 12th April 1883 (Seufifert, xlviii. No. 202). '5 Gand No. 597, is of a different opinion. He approves of a judicial decision by which it was held that a holograph testfiment executed in France by an Englishman could not be revoked by a second testament executed in England, 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 compre- hended estate situated in France. '8 On the effects of a change in the personal law upon matters of this kind, see supra, § 376, note 59. '" Trib. Bourdeaux, 17th August 1870, and again 5th August 1872 (J. i, pp. 183, 184), with reference to the 1698th article of the statute book of Louisiana. '■8 So Savigny, p. 314 ; Ungcr, p. 205 ; Schmid, p. 100 ; Stobbe, § 34 ad fin. ; Wharton, § 600. ' The possession and the renunciation of a succession must necessarily be subject to the same law. The latter is simply the negation of the former. 3 G 834 bar's international law. [§ 381 the other.2 In the first place, it may be said without fear of contradiction that a succession can only be taken up by satisfying the requirements of the law which regulates the succession itself. This is a plain deduction from the fact that by taking up the succession a man excludes all remoter heirs and eventual legatees, while it must necessarily be the law of the succession in general that is to regulate the order in which these heirs are to be called and their rights.^ It was therefore quite logical in the older writers, who looked upon the lex rei sitce as the general law for regulating the succession in immoveables {e.g. BuTgnndns, ad, consuet. Flandr.ii. 16, Merlin, Rdp voce Dette, § 4, note 1), to hold that the lex rei sitce must regulate also the entry on the succession. At the same time, the rule " locus regit actum " in its permissive sense must also be applied, if special acts, e.g. declarations of acceptance of the succession, are necessary and must be expressed in certain prescribed forms. Of course, if the idea of the succession as a singular succession is the prevailing theory of the law, the rule "locus regit actum" is then necessarily excluded,* ^ and, as in other cases, it may be excluded either expressly or by implication by the law which regulates the succession in its materia] aspects. On the other hand, doubts may easily arise of a real intention on the part of the heir or legatee to take up the succession or the legacy, if the law of the succession,^ or the law of the place where the heir or legatee resides, requires some particular form,^ e.g. a declaration in writing, while all the declaration that is made is an informal declaration.^ The rule that the law of the succession must be applied will suffer an additional exception, which is, however, an exception in appearance only, where that law prescribes special protective rules in 2 At the same time the matter has, as yet, been very little discussed ; the most thorough- going discussions are by Laurent, vi. § 373, and Brocher, i. § 129. The former's exposition is arbitrary, and not very satisfactory. ' As the rights of creditors on the succession against the heir in all cases depend upon whether he has entered on the succession or not, i.e. really become heir or not, it follows that, no matter where these creditors are domiciled, or where their claims have arisen, they will have to recognise a renunciation of the succession which satisfies the law of the succession, i.e. as a general rule the personal law of the deceased. * To this effect Boullenois, i. 237, 238 ; Burge, iv. p. 641. ■^ From this point of view it was an error in J. Voet (in Dig. 29, 2, § 31) to make the lex domicilii of the deceased the general rule for the taking up of the succession on account of a quasi contract to be discovered in the aditio hereditatis, which contract was held to have an universal operation. ^ Esperson (J. ix. p. 275) and Stobbe, § 34, note 47, seem to hold this law as the exclusive rule. See App. Ct. at Berlin, 17th December 1855 (Striethorst, xix. p. 186), and apparently to the same effect the App. Ct. at Liibeck of 7th February 1874 (Seuffert, xxxiii. No. 88). ' E.g. the 778th article of the French Code requires a written acceptance by the heirs- at law. ' The rule ' ' locus regit actum " is, for example, in cases of succession which fall under the- French law, excluded as regards the renunciation of the succession by the 784th article of the code. For the " renonciation" can only be made before a particular court {" au greffe du tribunal de premiire instance, dans I'arrondissement du quel la succession est ouverte"). See Laurent, vi. § 377, who deduces the same result from his mistaken theory of the acte solenneL See supra, p. 273. § 382] LIABILITY OF HEIR TAKING UP SUCCESSION. 835 taking up or in renouncing a succession, which are applicable to certain classes of persons only, obviously with the object of protecting these persons specially from a hasty decision which may be prejudicial to them, or with reference to their family relationships, as, for instance, in the ease of a married woman. These are limitations on the capacity to act,^ and consequently it is not the law of the succession, but the personal law of those who take, that will regulate it.^" § 382. It cannot, however, very well be that a person who belongs to another country, and who is resident there, should be bound simply in virtue of the law of the succession, which is quite unknown to him. Thus, for example, the heirs who take are only liable to creditors, if both the law of the succession and the personal law of the person taking, concur in holding that there is ground for that liability. We may infer that such a liability exists in the case of a foreigner, who, at the time when the succession opens, is resident in the country whose law governs the succession. But any such inference would be unfair, in the case of foreigners, from whom we cannot expect an adequate knowledge of the rules of a law of succession which is strange to them.^^ But a declaration of acceptance, whether it be valid on the principle " locus regit actum" or in conformity with the law of the country of the person who takes, if it satisfies at the same time the law of the succession, subjects the person who makes it, in accordance with the 5'Masi-contract involved in the taking up of the succession, to the law by which that succession is regulated, as regards all the consequences of acceptance; e.^..the heneficium inventarii yiiW be that which is known to this law. If there is to be an appeal to this heneficiitm, all the provisions of the law which I'egulates the succession must be observed. " Cf. e.g. Code civ. §§ 776 and 461. 1" See Stobbe, § 34, netes 48-50. To this category belongs, too, the question whether a trustee in a sequestration can take up a succession which has fallen to the bankrupt, or the curator of a lunatic one that has fallen to his ward. To this effect see Sup. Ct. at Stuttgart, 27th November 1879 (Seuffert, xxxv. No. 90) ; see, too. Sup. Ct. of App. at Liibeck, 7th February 1874 (Seuffert, xxxiii. No. 88) ; Sup. Ct. of Comm. of the Emp. 23rd October 1874 (Seuffert, xxxi. No. 2). The Ct. of Appeal at Oldenburg, 5th March 1863, is wrong in holding the law of the succession to give the rule (Seuifert, vi. No. 307). " If the heir is domiciled in a country where Roman law rules— eg-, 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 election within a definite time, and if that elapsed without his taking any step, then the consequences provided for such a ease by the Roman law would follow, unless the Prussian law is more favourable to the heir in the event of his taking up the inheritance. This latter limitation is explained by the consideration that the heir cannot be put under any further obligations than those which are imposed on him by the law under which the succession falls. S36 bar's international law. [§ 383 In particular, the liability of the person who takes for the debts of the succession is regulated by the law of the succession ; this will determine e,.g. whether he is liable in solidum, or only pro rata, personally or only to the amount of the value of the estate which he takes ; it will determine his liability to collate/^ and the dues payable on the succession.^^ Some lawyers ^* propose that on all these questions the law of the place where the greater part of the inheritance lies should rule. This proposal rests upon an erroneous application of the provisions of the Eoman law as to jurisdiction in Fideicommissa, provisions 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 all other questions of succession they regard the lex rei sitae as regulative. The reason- on which they justify this view ^^ — viz. that the obligations of the heir arise from a quasi contract, which must be held to have been entered upon wherever the last domicile {domus morttmria) raay have been — is condemned and refuted by their own general tlieory, by which succession is held to be a mere trans- mission 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 an 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. Taking Possession of the Succession. Law of England in pakticulak. § 383. The actual taking possession of the different assets of the succession is, however, subject to the lex rei sitce, and this rule is not confined to the case of immoveables.^^ Accordingly, it may well be that, in cases of succession which, so far as the order of succession goes, are subject to the law of some other territory, the rule may hold good that the articles which belong to the succession cannot be taken into possession without some authorisation from the Government of the country in which they are, and that no debts due to the succession can be sued for — the law of the debtor being in this matter regulative — unless some such authority has been obtained. This is the case in England and the United States.^^ The ^^ So Schaffner, pp. 179, 180. Boullenois, i. pp. 275, 276 ; Burge, iv. p. 730. It is obvious, howerev, that if the person whose duty it is to collate does not take up the succession, the other heirs can only challenge- a gift made to him under the conditions stated above, § 362, pp. 795, 796. See Boullenois, ut cit. and the case cited by Story, § 146. [For the English rule on collation, see p. 826.] ^' Judgment of Sup. Ct. at Liibeck, 28th Feb. 1857 (Frank/. Samml. iii. p. 112). " M.g. Paulus de Castr. in L. fin. fidei comm. 50, D. dejud. 5, 1. Cf. L. con. C. 3, 17. " See against this, Savigny, § 376 ; Guthrie, p. 281. ■'^ See, for instance, J. Voet, in Dig. 29, 2, § 31. " Despagnet, § 500, 3. ^^ See Lehr, Dr. civ. anglais, § 1006. § 384] LETTERS OF ADMINISTRATION. 837 lieir 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 mdbilihus, under the super- intendence of this court. This rule is applied to any moveable estate of a foreigner which may happen to be in England. i^ 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.^" The carrying out of these principles in detail present a variety of difficulties. But as these involve for the most part matters of English law, it will be better to refer to English authorities for an exposition of them (in particular to Westlake and to Wharton). It seems doubtful, and it is, in view of the multiplicity of commercial relations, a question of interest, whether one who has paid to a foreign heir in bona fide, before he has obtained letters of administration, is discharged of his debt.^'-^^ If, however, a foreign heir has once taken possession of an asset belonging to the succession according to the law of the foreign country, he needs no further authorisation to entitle him to vindicate this article if it is subsequently taken from him in England : he sues in his own name.^^ The administrator of an Englishman — or, if we take the lex domicilii as regulative of the personal law, of a person domiciled in England — appointed in England, will be treated in a foreign country as having a title to take possession of articles belonging to the succession, and to raise actions for debts due to the estate. Interposition of Couets of Law in Matters affecting Successions. § 384. The interposition of the courts in matters of succession takes very different shapes in different countries. In particular, there are important differences in the conditions under which the courts ex officio assume the regulation of such estates, and specially again in their '9 See Story, §§ 507 et seq. ; "Wharton, §§ 604 et seq. ; Westlake-Holtzendorff, §§ 57 et seq. 2» Wharton, § 507. 21 Westlake, § 98, thinks that in strict law an English debtor will not be discharged, if the person who receives paj-ment had no title from an English court. 22 Ct. of the Emp. (ii.) 29th December 1886 (Bolze, iv., note 17, p. 5) ; the law of tho domicile of the deceased held regulative of the extent of the liability of those persons who, on the strength of their presumptive rights as heirs, have taken possession of tho estate, and are called to account by the true heirs, although they have taken and held possession at some other place. ^' Wharton, § 614. 838 bar's international law. [§ 384 procedure with reference to successions belonging to foreigners.^* In recent consular treaties, consuls are, in many cases, invested with the right to assist in the regulation of successions belonging to subjects of the State which they represent. The extent of the powers so conferred is, however, very different in different cases. It is impossible, without encroaching on territorial rights of jurisdiction, to commit to consuls the task of satisfying creditors or settling disputes connected with the succession. On the other hand, the principles of international law contain nothing that need prevent them from having committed to their superintendence measures which are purely for preservation and for the division of the estate among heirs and legatees, all of whom belong to the same nationality as the deceased. (See e.g. Italo-German consular treaty of 1869, § 11 ; German-Brazilian consular treaty of 1882, §18; Greco-German treaty of 1882, § 15 ; treaty between the German Empire and the United States in 1871, §§ 10 and 11.) In England, the leading principle is that an heir, in so far as the moveable estate is concerned, must, as a matter of form, always be looked upon primarily as an " administrator " : i.e.. he must first be named administrator by the court, at one time the ecclesiastical court, now the Court of Probate (see Lehr, Br. Civ. Anglais, § 1003). This holds even in the case of one who inherits from a person domiciled abroad, if he takes into his possession things which happen to be in England, or if he proposes to sue in England for debts due to the estate. But in such cases the English court will accept as authoritative the certificates and decisions of the court of the domicile, and will entrust the administration even of the English estate to the foreign administrator appointed by the court of the domicile. So far will this be carried, that if the court of the deceased's domicile recalls any declaration it may have made as to the title of an heir, the administration which was granted in England will also be recalled, and will be given out anew to the person who has a title under the sentence of the foreign court. But the powers of the administrator in England will be determined by the law of England. They can, however, in no case be wider than they are by the lex domicilii of the deceased : they will e.g. be limited if the lex domicilii limits them, as the law of Germany limits the powers of an executor, to interim measures. These arrangements and conceptions of English law lead to many doubts on matters of forms and relaxations of the strict rules. If any special forms, such as entry in a register of securities, are ^ F. Bohm's ffandbuch der Internationnlen Nachlassregulirung (Augsburg 1881) is principally dedicated to an exposition of the manner in which the courts of different civilised countries interpose, and of the rights and duties which fall upon the different parties atfected. Of course, rules of private international law and of civil procedure have often to be applied, and the author gives a short sketch and a table of the order of legal succession for each one of the States, whose system he takes into consideration. See the detailed exposition of the treatment of the successions of foreigners in Austria in Starr's lUrMshiilfe in Oesterreich, pp. 76-226. NOTE QQ\ GRANTS OF ADMINISTRATION. 839 required for taking up a real right bequeathed as a legacy, by the law of the place where the thing in question is, if, that is to say, the full right cannot be created or be transferred by the mortis causa disposition alone, then the legatee acquires by this mortis causa disposition no more than a right of action for this real right. NOTE QQ ON §§ 3S3, 384. ADMINISTRATION IN ENGLAND AND SCOTLAND. [Personal property situated in England cannot be taken up by an executor, nor will an executor have any title to sue in England, unless he has obtained an English grant of probate. Soo, too, in Scotland no executor will have an active title to sue the debtors of the deceased without confirmation. In both countries the jurisdiction of the court in matters of administration — using that word in its narrow sense of the procedure by which the representative of a dead man takes up his moveable property for distribution — is strictly territorial. But the courts to whom it falls to appoint executors will always respect the title already conferred upon a particular person by the court of the deceased's domicile, and will incline to appoint him to the office (in re Stewart 1838, 1, Cur. 904; in re Oliphant, 1860, 30 L.J.KS., P. and M. 82 (Preston v. Melville, 1841, 8, H. of L. 1 and 2 Eob. App. 80) unless he is unfitted by reason of some circumstance (e.g. minority), which is viewed as a disqualification by the English or Scots courts (Duchess of Orleans, 1859, 1, S. and T. 253). So far is this principle of comity carried that, where an administrator had been originally appointed in England, the country of an ancillary administration, and a different person was appointed by the court of the country of the principal administration, the English appointment was recalled, so as to bring the administration in England into conformity with that in the foreign country. Enohim v. Wylie, 1862, 10, H. of L. 1. When administration is granted to one on account not of a nomination by the deceased, but on account of a beneficial interest in the succession or of kinship to the deceased, it is to the law of the domicile of the deceased that we must look to determine the beneficial interest or kinship. (West- lake, § 75 ; Alexander on the practice of the Commissary Courts, p. 44.) The statute of 1858 (21 and 22 Vict. c. 56) provides a simple and expeditious method of obtaining confirmation within the different juris- dictions of the courts of England, Scotland, and Ireland, but preserves intact the right of each country to dispose of the moveables situated within its territory by an order of its own courts. When administration, in the sense already defined, has once been granted in any country, it must proceed in the country in which possession under that grant is taken (Preston v. Melville, tit supra). That is to say, the executor appointed by the courts of that country is not in safety to part with any of the assets taken up by him till the debts of the estate due to creditors in that country are paid, not even if he proposes to pay them over to 84P UAH's INTERNATIONAL LAW. [§ 385 trustees appointed by the deceased for permanent purposes in another country. Creditors belonging to the country where an executor has been appointed, whether in the course of the leading administration or of an ancillary administration, are entitled to seek payment from him in the courts of that country, and, if necessary, to institute an administration suit so as to take accounts of the estate vested in that executor, and ascertain what sum, if any, remains to be handed by the executor to the permanent trustees, who belong to another country (Orr Ewing's Trs., 1885, Ct. of Sess. Eeps., 4th ser. xiii. (H. of L.), 1. See Lord Chancellor Selborne, at p. 10, in explanation of the case of Preston v. Melville). Where there is administration in another sense, i.e. a continuing administration by trustees, the courts of the country in which the trustees are personally present have jurisdiction to enforce the due performance of the trust at the instance of any beneficiary, and will exercise this juris- diction, if it is shown that the trustees are evading an accounting in the country to which they are primarily subject. See Lord "Watson's opinion in Orr Ewing's Trs. lit swpra^ DiSTEIBUTION OF THE SUCCESSION. § 385. The distribution of the succession must in general be subject to the law of the succession. Most of the difficulties which arise in applying the provisions of the law of France on this subject are caused^' by the fact that the law of France on this point, again, is in reality founded on the principle of an universal succession, while the tradition of French lawyers nevertheless tries to combine with it, so far as immoveable estate is concerned, the lex rei sitce. It must, however, be kept in mind that provi- sions, the object of which is to extend to particular classes of persons, such, for instance, as minors, a special protection,^^ are not to be applied to foreigners belonging to these classes, if their own domestic law does not look upon such a measure of protection as necessary. Conversely, however, foreigners cannot make any such protective measures available, if they are not known to the law under which the distribution of the estate takes place.^'^ Provisions, by which real rights are affected, and in particular affected in ^' See specially Laurent, vii. § 13, who labours unprofitably in this subject, with his theory of the universal validity of the testator's intentions on the one hand — the testator has fre- quently not thought on the subject at all, and has therefore had no intentions on the point — and with the theory of the statut riel in the sense in which he uses the term. Brocher, i. § 133, and Weiss, p. 869. 26 See Laurent ; Weiss, p. 870. ^ See Weiss again, p. 870, on §§ 466 and 840 of the Code Civil, 'W.eiss does not indeed enunciate the principle which is adopted in the text (supra, p. 340). His deliverances are, however, in conformity with this principle. It is sufficient, then, to observe the law of the court which has the distribution of the estate in hand, if there is any question as to protective forms (Laurent, vii. § 20, and Weiss itt cit. ). It would often be impossible as a matter of fact to observe any other forms, on account of differences in the constitution of different courts. But where, for instance, a guardian cannot undertake some particular transaction without the sanction of the supreme controlling authority, or of the family council, this approval is not a mere form, it is a material part of the transaction. ^^5] DISTKlBUriON OF THE SUCCESSION. 84 1 their relations with third parties, can only be carried out in so far as the lex rei sitce allows it to be done. In these matters subtle distinctions often require to be made. Although, for instance, the law under which the succession itself falls, permits the testator to put off the distribution of the succession under certain conditions for a certain time (see Italian Code, § 984), a provision of that kind by a testator has no effect upon things which happen to be in another territory, where the rule is that every co-owner of a thing may at all times force a distribution, and where even an agreement to the contrary has no effect.^s Although, again, the law of Prance (Code Civ. § 883) sets up the principle that, as it is generally expressed, the right which the co- heirs take has at the date of the distribution a declaratory effect, that is to say, must be regarded as if the co-heir, who eventually takes, had taken the whole subject directly from the testator, so that all rights in the thing created in the meantime by other co-heirs shall receive no effect, while the rights which the co-heir, who eventually takes, has created, receive effect over the whole subject ; this rule cannot claim to receive effect in another country, e.g. in a country where the common law of Eome prevails, or in Spain, where the heir, who takes the thing at the period of distribution in its entirety, receives it as regards the shares apportioned to the other co-heirs as their singular successor.^® A rule like that of the French law is vei-y highly prejudicial to the rights of third parties, who may in the meantime have acquired real rights over the thing in question from the other co-heirs. It attacks the very system on which property and real rights as such are based. On the other hand, it would be a complete contradiction to apply that rule to some of the things which belong to the succession, while it would not be applicable to the rest of the articles that go to make up the same succession.^" Thus it will only operate when the succession as a whole falls under the law of France, or under some other system which is similarly expressed, i.e. it only operates for the assets of a French succession which happen to be within a territory that is subject to the French law. The same principles must regulate the obligation to collate (rapport in the law of France ^^) : this obligation cannot have a direct real effect with retrospective operation (see Code Civ. § 865), unless the law of the succession and the lex situs both attribute these virtues to it [see supra, p. 826, as to the law of collation in England and Scotland]. ^ Weiss (p. 8(39) goes too far in refusing, on the head of the 815th article of the Code Civil, all effect to a provision of that kind made by an Italian testator over property situated in France. The testator's provision must have at least as much effect as can, under art. 815, be attained by means of a contract, viz. postponement of the distribution for five years. See Despagnet, § 505, who declares in favour of the lex rei sitce. 29 Weiss, pp. 872, 873, agrees veith me. Laurent's inference (§ 28), that the intention of the party is the basis of art. 883, is entirely perverse and impracticable. Of course, parties always desire what the law of France enjoins, and thus everything and nothing can be proved. 8» Laurent {§ 29) decides to the contrary, and of course finds that the result is inconvenient. As so often happens with him, he invokes the expedient of a treaty ! Despagnet, § 505, decides that the lex rei sitce is exclusively applicable SI See Laurent, vii. § 30. 842 bar's international law. [§ 386 Liabilities of the Succession. Eight of Separation. Tkansfeeence OF the Succession or a Part of it. § 386. We have already, in expounding the general principles which regulate the law of succession, disposed of the incidence of the debts of the succession as a matter of principle. If we are not embarrassed by any of the special principles which cast the burden of particular debts on the real estate according to the lex rei sitce, in which case there may well be an exception from the system of an universal succession,^^ the only course which we can possibly take is to hold all who take under the succession liable in proportion to the value of their shares.^^ If we start with the principle that the personal law of the deceased shall be the only rule for the regulation of the succession, then without any further trouble we shall find in it the order of liability. That law, too, must decide whether and under what conditions those who take are liable beyond the amount of the succession with their own means, and whether they can save themselves from this further liability by taking and special precautions {e.g. benejlcium invenfarii). The heir cannot appeal in this matter to his own personal law. The law allows him to choose whether he will take up or renounce the succession, and allows him nothing more. The same principles must determine his right to recall his resolution to take up the succession. The so-called right of separation enjoyed by the creditors on the succes- sion, introduces a kind of bankruptcy procedure. In so far, then, as isolated groups of assets are made the subjects of particular [as distinguished from general] processes of this kind, the law which regulates each of these processes must decide as to the creditors' rights of separation. The primary object is to extract what was, as a matter of fact, the property of the deceased from the mass of property belonging to his heirs, and that has, as a rule, to be done in a question with the creditors of these heirs in bankruptcy, the rights which these creditors enjoy in respect of the bankruptcy being limited, as it is maintained, by this right of separation. But, since the '^ Seesupra, § SSiadfin. The question, too, whether the heirs are liable m soHi^Mm for the paj'ment of a legacy which is made a burden on the succession which they take, is a matter for the law of thesuccession, i.e. for the last personal law of the testator. The heir takes the'succe.ssion exactly as this law gives it to him. See an interesting, and, as I think, a sound decision of the Ger. Imp. Ct. (iii.) of 2nd Feb. 1885 (Bolze, Praxis, 2, § 37, p. 9). If in the settlement it is provided that the heir, and not his heirs again, is to be burdened with the payment, but that he is not to be required to meet it during his life, the legacy not being payable till his death, then the law of the last domicile of the heir who has been put under the burden will decide whether his heirs are or are not liable in solidum : but if the heirs of the heir are burdened with it, then the law of the last domicile of the original testator will rule. ^' Wharton, § 620 ad fin. See, too, Brocher, i. § 135, p. 432. He thinks that, for a satisfactoiy solution of these questions, treaties will be required. If the estate cannot meet its liabilities, and if therefore a kind of process of bankruptcy is set on foot— a character which the Englisli procedure and that of the United States always have, and which other States have where the succession is taken up'cwni leneficio inventarii, then the principles of the international law of bankruptcy must apply. See Wharton, §§ 621 et seq. I 387] SUCCESSION BY THE STATE. 843 lex rei sitce is the law that must regulate particular bankruptcies, even as regards moveable property, this right of separation must also be ruled by that law.^* On the other hand, the creditors of the succession have no other rights than those which are given to them by the law which rules the succession generally. This right of separation, then, only operates in so far as both systems of law concerned recognise it. The question as to the effect of the transference of a succession as a whole, or of an imaginary share of it, the share e.g. falling to one of the co-heirs, must, on the other hand, be dependent on the law which rules the succession-. For the ultimate question in such cases is whether the person who takes from the original heir is himself to be recognised as an universal successor, i.e. as having come in place of the heir. Accordingly the 841st article of the French Code Civil, which deals with the retraii siiccessoral, and gives the co-heirs a right to buy out any one to whom one of these co-heirs has sold his share of the succession, on payment to him of the purchase price which he has paid or agreed to pay, will apply to all successions which depend on French law, successions to a Frenchman, but to such successions only.^^ Estate to which there is no Heie. Hereditas jacens. § 387. 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 to be a right occupatione or a right of con- solidation 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 an universal succession, or as the estate is made up of moveables.s^ The theory which is in conformity with modern ideas of law, which is more deserving of our respect, and which undoubtedly now prevails as the theory of the law 3* Brocher i § 135, p. 435, agrees with the result. Laurent, §§ 56, 57, hesitates between statut personnll and rM as a description of the character of the rules of law as to this right of separation Despagnet, § 509, 'decides in favour of the personal law of the deceased, and thinks that the lez rei sitm should be observed as well, but only with reference to a few resuUtions, which exist in the interests of public credit {e.g. Code Civ. §§ 2111 and 880). 35 No unreasonable results will flow from this theory, unless the lex rei sit even although far stronger evidence than that which is required should be tendered — 6.g. instead of a private document, ten witnesses who with one voice speak to the agreement of the parties.^^ To decide according to the lex loci actus is the only way to meet the justifiable expectations of the parties, the loTia fides of their transaction. If in country A certain legal transactions cannot be proved by witnesses, every one is entitled to expect that no obligations, or at least no obligations beyond a certain amount, will be laid upon him by means of vague testimony, which may have been entirely misappreciated by the judge. If, on the contrary, country B admits proof by witnesses in all questions, then every contracting party may rely upon it that one who has once given his word, no matter in what shape, is bound by it.^^ Even the question whether a party has the right of challenging a witness is in such cases, on a sound view of the law, to be determined not by the lex fori, but by the law which governs the substance of the legal relation in question.^^ [The rule of English and Scottish law is very distinct, that all questions of the admissibility of evidence must be determined by the lex fori. " The law of evidence is the lex fori, which governs the court. Whether a witness is competent or not, whether a certain matter requires to be proved by writing or not, whether certain evidence proves a certain fact or not, that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it," per Lord Brougham in Bain v. Whitehaven and Furness Junction Eailway Co. 1850, 3, H. of L. Ca. p. 19. ^' 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 jirocedure in ecclesiastical courts as to dis- positions 7«^rtis cawm. Cf. Fcelix, i. p. iA5, note 3.) 5^ So again the lex loci actus, and not the lex fori, must determine how far it is competent to contradict, by proof of the intention of parties, any legal relation embodied in a formal writing. Proof which is so appropriately named by Bentham " pre-arranged" proof, rests in a, certain sense on the will of the parties, or at least upon some law which takes account of what parties generally desire. See Brocher, iV. Traite, § 112 (p. 283); Espersou (J. xi. pp. 251, 252) ; Fiore, JSffetti, § 180. Menger, p. 154 ; Hellmann, ZehriueJi, p. 31 ; BShm, liechtshiilfeverf. p. 149, take a different view. Lammasch, p. 370, attempts a middle course, and seems to expect that controversies on this head will be got rid of by treaties. '^ Smits, Bewijsrecht, p. 26. I 396] STATUS. FOREIGN DOCUMENTS. 865 If a commissioner wrongly admits or wrongly rejects evidence, i.e. does so contrary to the law of the court from which the commission issued, the result may be that the whole deposition will be suppressed. Taylor on Evidence, § 512. This would hold true of commissions issued to foreign courts as well as to individuals, but the rule must be very sparingly enforced. Otherwise grave injustice might be done, for how is the foreign commissioner to know our rules of evidence ?] Proof of Status. § 396. Similar considerations must regulate the proof of questions as to family relationships ; it is in such cases that it is specially true to say that questions of proof are not unfrequently really questions as to the existence of the ■ substantive fact ; ^* we must dispose on the same principles of any question as to the effect in evidence of " possession d'itat" ^^ and in consider- ing the weight to be given to documents connected with civil status, we must start from this point of view, viz. that every civilised State, if it allows such matters, occurring within its own dominions, to be recorded at all, wUl take care to have them recorded in such a way as that they may deserve to be relied upon, and that records of this kind ought to be recog- nised as valid evidence all the world over,^^ if their genuineness be once established. Parties will in very many cases be unable to provide them- selves with any other evidence. Public Eecokds and Documents. Authentication. "Witnesses. 6 .397. As a general rule, we must admit official documents drawn up in some other civilised country ^^ as good evidence. Nor can we make any distinction if such a document contains something which is beyond the sphere of the direct observation of the senses of the attesting official. We must assume that he has sufficient means at his command, in respect of his local experience, to satisfy himself of the truth. ^ Duguit, p. 98, and the decisions given in J. i. p. 305 ; so, too, Ct. of Martinique, 18th May 1878 (J. v. p. 507). _ . •.,,,• i p , 35 Brocher N TraiU, § 41. Proof of marriage in accordance with foreign rules ct law admitted by French courts (Trib. Seine, Uth March 1879 and 15th March 1883 (J. vi. p. 544 and x p 392). See Wharton on extracts from church records as evidence, §§ 759 et seq. Pra'dier-Fodere J. vi. p. 269. Corrections, too, of entries in such book, made by order of officials charged with the superintendence of them, must bear faith in a foreign country upon the principles stated in the text. We have nothing to do here with the principles which regu- late the recognition or non-recognition of judgments in actual litigations. The certified copy Lssaed by the official or the notary himself, who drew up the original, makes faith m any foreien country in accordance with the lex loci actus. C. Palermo, 25th March 1887 (J. xiv. 757) Code Civil, § 47 : " Tout acte de I'itat civil des Francais et des etrangers fait en pays Granger, /era foi sHl'a M redige dans les formes usities dans lepays." 36 Hans, Dr. p. § 135 ; Duguit, p. 62. , ^, , f .r, n " Smits (p 45) proposes to test the value of a ship's log as evidence by the law of the flag, and the value of an average report by the law of the place where it was drawn up. o 1 866 • bar's international- la If. [§ 397 This Puhlica Fidesp attached by the courts of all countries to documents issued by officials within the limits of their own jurisdiction, rests upon an universal law of custom, without which there could scarcely be any regular intercourse among the inhabitants of different States. We 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 doctrine of law cannot, however, be referred to the rule " locus regit actum : " the notion of the headship of the emperor, and the derivation of all juris- diction from him 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 Puhlica 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 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 may be led — e.g. by witnesses *^ — and in adjoining States no particular proof of authenticity is required. The proper position seems to be to commit the question, whether any special authentication is necessary, to the discretion of the judge.** The ^ Cf. Merlin, Questions, Vo. Authentique {Acte), § 2. Fcelix, as cited ; Masse, No. 269 ; Piittlingen, § 124 ; Code Civ. arts. 47, 170, 999. Field, § 666, "Full faith must be given in each nation to the public acts, records, and judicial proceedings of the tribunals of every other nation." ™ Foelix derives it from the rule "locus regit actum," ii. p. 201. <» See above, § 118. ^^ This as a rule proves itself. Story, § 643. ^^ It depends upon the organisation of the officials of each State, and the agreements which have been made by one State with another, whether any other officials of a State must authen- ticate the documents issued hy inferior officials and notaries before the diplomatic representative will authenticate them, and if so, which officials. See Foelix, i. pp. 434, 435. PUttlingen, as cited. « Story, §§ 639-641. ■" See judgment of the Sup. Gt. at Berlin 23rd Oct., 1855 (Striethorst, Jahrg. 1856). The instructions given by the ministers of justice and of foreign affairs, on 22nd March 1833, re.st on this principle. Renaud, 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 everywliere. 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 England, 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. The German ivilprocessordn. § 403, provides : "The court must determine, on the circum- stances of each particular case, whether a document, which bears to have been drawn up by a foreign official, or by some person belonging to a foreign country who is invested with puhlica fides, must be accepted de piano as genuine. Authentication by a consul or an ambassador of the Empire will be sufficient to prove its genuineness." NOTE SSI QUALIFICATIONS OF WITNESSES. 867 circumstances and extent of the intercourse which the tWo States enjoy with each other must determine the question. Besides, there exist conven- tions between many States dealing with the point as to how far any authentication is necessary.*^ *6 The qualifications of documentary witnesses, and their number, are to be determined by the l&x loci actus; unless, besides the form which that law requires, it may be competent or imperative to observe at the same time the form which is prescribed by some other system of law under which the legal transaction falls. The question here is a question as to the form of an instrument, or the requirements of a document as a probative instrument ; but it is the law of the court where the process depends that must decide as to the credibility and . competency of other witnesses.*' 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 Eoman law to a different effect, by which none but a Civis Bomanus can be a documentary witness, rest upon the inequality of Eomans and strangers in the eye of the law at that time.) Besides, any other view would be highly unpractical. One might easily be mistaken as to whether a particular person was a citizen of the country, and thus lawsuits might arise as to the validity of a document — if citizenship were necessary for the witnesses — which might often be prejudicial to the citizens of that country, which proceeded on any such selfish and narrow view. French practice attempts to meet this danger, but in doing so falls into illogical procedure, and is in the habit of recognising " putative " nationality as sufficient.*® NOTE SS ON § 397. FOREIGN JUDGMENTS AND REGISTERS. [The general rule in England and Scotland is that foreign judgments authenticated according to the law of the country from which they proceed will be received in evidence (Phillimore, §§ 913, 914, and Savage v. Hutchi- son, 1855, 24 L. T. K S. (Ch.), p. 332 ; Dickson on Evidence, § 1319). That they are so authenticated must, unless they are documents proceeding from ^ As regards Austria, see Vesque v. Puttlingen, § 120. *! Authentication is simply an external form. It may therefore be given with a retrospee- tive'operation, if the law e.g. requires some probative instrument as a condition precedent to another act. So Aj.p. Ct. at Modena, 9th May 1876 (J. v. p. 55. See Dubois, ibid. p. 59). •'7 Foelix, i. § 235, p. 458, allows the Ux loci actus to rule generally ; and so, too, Demangeat and Pardess'us, No. 1490 : Masse, No. 275, and Sohaffner, pp. 205, 206, take the opposite view. Wharton, § 769, takes a different view, but admits an exception if the lex rei sites requires a certain number of witnesses. 48 French law as a whole is of a different tenor, relying on the distinction between droits 4iivils and droUs naturels. See Masse, p. 32 ; Gand, § 154, and as regards practice, J. ii. pp. 117 and 192. ^ Cf. Dubois, Rev. viii. pp. 492, 493, and Laurent, iii. § 353. 868 bar's international law. [§ 398 some foreign court with the forms of which our judges are familiar, be proved e.g. by the certificate of a notary or by the British Consul at the foreign place (Disbrow v. Mackintosh, 1852, Ct. of Sess. Reps. 2nd ser. xv. p. 123). A similar judgment was pronounced in the House of Lords so long ago as 1771 (Sinclair v. Fraser, 2 Pat. App. 253). By the statute 14 and 15 Vict. c. 99, § 7 (Lord Brougham's Act), which> however, applies to England alone, copies of proclamations, treaties, Acts of State in foreign States and colonies, and judgments of proceedings in and documents deposited in foreign or in colonial courts, may be proved in English courts by examined copies or by copies certified, (1) in the case of proclamations, treaties, or Acts of State, by the seal of the foreign State, (2) in the case of the judgments or proceedings of foreign courts, or of docu- ments deposited there, by the seal of the foreign court or by the signature of the foreign judge. By the Extradition Act, 1870 (33 and 34 Vict. c. 52), §§ 14 and 15, foreign warrants, depositions, and convictions, shall be deemed to be duly authenticated if they purport to be signed by a judge, magistrate, or ofiicer of the foreign State, or are certified to be true copies by such judge, magistrate, or officer, and if they are authenticated by theoath of some witness, or by the official seal of the minister of justice, or of some other minister of State. Extracts from foreign registers are admitted if authenticated according to the law of the country of the register by an official person (Phillimore, § 913 ; Wharton, §§ 760 and 763 ; Dickson on Evidence, § 1321). Again, if the court is not familiar with the method of authentication employed, it will have to be proved to its satisfaction that the proper formal method had been followed. The court will not grant a diligence for the recovery of foreign registers or public documents in public custody in a foreign country. It will, however, grant a commission to examine the custodier, who will depone to the entries in his books as correct (Maitland, 1885, Ct. of Sess. Eeps. 4th ser. xii. p. 899). A certificate by a notary public, as a person holding a munus publicum known to public law, would probably be accepted as a sufficient guarantee of the correctness of extracts from documents in public custody in a foreign country, or from a foreign registry. Value of Business Books as Evidence, § 398. The lex fori, as a general rule, will determine the value of business, books ^" as evidence.^! If, however, the law under which the contract 5° The law of the place where the books are kept must determine primarily whether they are or are not properly kept. J. P. Court at Groningen, 19th January 188.5 (J. xiv. p. 244). °i Judgment of the Supreme Court at Berlin, 3rd May 1845 (Decisions, ii. p. 375) ; Judgment of the Supreme Court of Appeal at Darmstadt, 13th May 1856 (Seuffert, xi. 303). [Extracts from business books made and authenticated according to the law of the place where the extract is made will make faith in Russia (Claile v. Roubleff, 1877, Senate of Moscow, J. viii. p. 189).] S ^^^ BUSINESS BOOKS. 869 which these books are adduced to prove 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 evidence ; ^^ in the view of others, the lex loci contractus will settle it.^s I believe that, by the intermediate view taken above, I have made it possible to solve the con- troversy. We have already discussed the exceptio nan numeratm pecunice, the effect of which in international law must also be determined according to the principles of evidence upon matters of contract. The question whether one party can tender an oath to another on a matter of contract, must, in so far as the lex fori sanctions oaths generally in other cases, be determined by the law to which the substantive legal relation, concerned is itself subject.^* Onus Prohandi and Pkesumptioks. § 399. Questions as to the onv^ prohandi — apart from, the most general of these questions upon which there is practical agreement in all civilised States,^^ and on which therefore we need not here spend any time — are not so much questions of procedure as questions of substantive law. The law determines this or that legal relation on the footing that no substantial modification of the state of facts which it assumes can be shown to exist. This is recognised most markedly in the law of contracts. The assumption ^^ Mittennaier, as last cited ; Scliaffner, p. 206 ; Unger, p. 209 ; Walter, § 44 ; judgment of the Supreme Court of Appeal at Wiesbaden, 20th May 1851 (Seuffert, ii. pp. 451, 452) ; Supreme Court of Appeal at Darmstadt, 13th May 1856 (Seuffert, ii. p. 302). Wharton, § 766. «' Jason Mayn, in L. 1, C. de S. Trin. No. 23 ; Masse, No. 272 ; Pardessus, 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. 1827 (Seuffert, i. p. 135, No. 132). Asser- Rivier, § 94 ; Phillimore, § 662. See, too, resolution of the Institute of International Law, supra, note 29. Petrushevecz, p. 92, § 210 ; Smits, Bewijsr. p. 37. The last-named author contradicts the view taken in the text, but he forgets (1) that the application of the law which is more favourable to the defender is simply a consequence of the general principles which necessarily govern the law of obligations (see supra, § 250), and (2) that if i\iR lex fori or the usa'^e of the court gives faith to business books, it is de facto impossible to limit the amount of credit that is to be given to them, once tliey are produced in evidence, in acooi-dance with the limitations of any foreign law. It \uould be different, of course, if by the lex loci contractus business books were altogether inadmissible in evidence, or were a kind of evidence to which one of the parties could object. w Mass4 ii. § 775 ; Bonnier, i. § 935 ; Smits, p. 34. ' "' The older German law of procedure, e.g. contains principles which are at variance with the prevailing view. 870 bar's international law. [§ 399 of what are called the naturalia negotii is simply an assumption of what must he supposed to he the case, unless proof is forthcoming of some intention of the parties to a different effect. In other words, the law says, " if any one alleges that a different intention existed, it is for him to prove it." 56 We must deal on the same principles with prcesumtiones juris. They are simply special provision for particular sets of circumstances, particular legal relations, or they deal with the onus of proof in these circumstances and relations. We may express our meaning otherwise thus. A pre- sumption of that character involves a provision of law that the legal conse- quences which properly belong to one state of facts shall be attached to some other state of facts : 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 presumption that B survived A, that implies that, as far as regards this claim, the true state of facts — viz. that both died simultane- ously — 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 the fact.^^ If, again, for "■^ Althongh I decided in my first edition in favour simpliciter of the lex fori (see to the same effect Menger, p. 154), I expressed myself in the fourth edition of v, Holtzendorff's Eechtseiicyclopadie (p. 713) just as I have done in the text. By Asser-Eivier, however (p. 713), I have apparently been misunderstood : these authors, like myself, declare against the lex fori (see now, too, Bbf/m, Eechtshillfeverf. p. 150). As to the substantive character of legal presumptions, see tJnger, Oester Frivatr. ii. p. 580 : " The law of procedure can only tell us that, if we are dealing with a legal presumption, the person in whose favour it is, is free of the burden of proof : if the question be whether there is or is not a legal presumption in the case, we are thrown back on substantive law." The German Imperial Court (i.) determined (Dee. vi. No. 127) that the principles which must regulate the onus are no part of the law of procedure, but are identical with the rules of the substantive law which regulates the particular legal relation under discussion. The authors of the introduction to the German Civilprocessordn. are of the same mind. (See SenflFert, on § 255 of the Ordnung.) As a matter of fact, simple enactments, shifting the onus of proof, may introduce economical modifications of legal rights which are of the most extensive operation : e.g. if trading agents are made liable for losses in the business. Judgment of the Sup. Ct. of App. Liibeck, 30th December 1859 (Seuffert, xiv. No. 148 ; linger, pp. 154, 155, in favour of the lex fori). "^ Foelix, i. § 237, p. 460, applies the lex loci contractus in the case of presumptions which relate to contracts. So, too, judgments of the Supreme Court at Berlin, 26th September 1849 (Dec. vol. xviiij p. 146), and 17th October 1854 (Striethorst, 15, § 123). Both judgments deal with a presumption in horse-dealing existing 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 substantive law." Cf. such presumptions as those of the Code Civil, art. 1402: "Tout immeuble est r^puti acquit de commwmxuti , s'il n'est prouvi que I'un des ipoux en avait la propriety ou imesession Ugale ant^-ieurement au manage ou qu'il est ichu depuis d. titre de successsion ou donation." Here the mutual rights of th« spouses, and of the creditor to the property which is in the possession of the spouses, are fixed. See, in the sense of the text, Brocher, ii. p. 71, and N. TraiU, p. 291. Laurent (viii. § 47) "Weiss (p. 951), and Smits (p. 27), in general approve of the application of the law, which rules the legal relation itself, the two latter with special reference to the ■prmsumXiones hortiinis. § ^^^] PRESUMPTIONS. 87 1 instance, the law creates a presumption in favour of the legitimate birth of a child, that constitutes a rule of family law that cannot be distinguished trom a substantive enactment: the law will treat the child as legitimate, unless It is made manifest by plain evidence that it is illegitimate. It IS, no doubts entirely different with prcesumtiones hominis. These are simply general conclusions based on experience, and in many cases on psychology. If it were proposed to limit the judgment of the court in which the action is pending by any foreign law, that would be to deprive It of the right of forming a judgment on the evidence. The application of the lex fori, or of the practice which has grown up about it, will not in such cases disappoint any just expectations of the parties, founded on the lex loei actus or contractus: such conclusions as these are subject to constant modification and development even within the same territory.^s It would, as a matter of fact, too, be almost impossible to compel any court to come to a conclusion in this way upon evidence according to the views of it entertained by some other court in another country, i.e. in certain circumstances to be untrue to its own convictions or beliefs on the matter. The differences of opinion which we find existing upon the subject of presumptions is perhaps really due to the fact that these two kinds of presumptions are not distinguished, as they ought to be, one from the other. Action pending Abeoad and affecting the Proof in oue Courts. § 400. If the court has, as undoubtedly it has, the power of sisting procedure in some pending process until some criminal proceedings that are connected with the civil action, raising the same concrete questions, are disposed of (cf. e.g. German Civilprocessordn. § 140), then in a sound view the same thing may happen with reference to criminal proceedings dependent in a foreign country. The point here is not the binding force of the foreign criminal sentence, but the clearing up of matters of fact> an object which may be achieved through the procedure of a foreign court just as well as through the procedure of one of our own courts.^^ V. Bulnierincq, without making any special reference to the proesuintioTies hominis, refers questions of onus and presumptions to the head of substantive law. Wharton, § 782, is for the lex fori; Laurent, however, makes an erroneous application of the rule that presumptions should be tested on the principles of substantive law, when he proposes to test the presumption of filiation paternelle by the statut personnel of the mother. The question simply is, whether the child has any rights according to the law of the father's family. «» Weiss takes a different view (p. 9.51), in opposition to Brocher, N. TraiU, p. 291, who, however, represents the sound theory. Bonnier, TraiU des Preuvea, ii. § 934, comes to exactly the opposite conclusion, for he holds that the prisomptionn sim,ples alone are uncontrolled by the lex fori. In the prisomption ligaU he can see nothing but an unconditional command addressed to the judge, and so, he concludes, the lex fori is the only law that can be applied. 69 See decision of the Sup. Ct. of Austria, 14th Feb. 1882 (J. xiii. p. 462). 8/2 bar's international law. [§ 401 Besides, the decision of a foreign court must be awaited by a court in this country, if the law of this country regards the decision of some other court, — e.g. in matrimonial matters the court of the domicile or the nation- ality of the spouses, — as prejudicial in the technical sense, and that court happens to be a court of some other country. In such cases, according to the sound theory, the foreign judgment operates without needing any special declarator of its validity or process for rendering it executory, since all that it decides is an incidental or preliminary point in the action which is dependent here, and does not propose to enlist directly in its service the executive forces of our country.®" [If there is a want of power in the court in which the principal process depends to deal with some incidental question, which nevertheless must be determined before a just judgment in the principal suit can be reached, then process will be sisted till the foreign court, which has power to determine the incidental question, does so. But if there is power in the principal court to determine all questions, then "judex tenetur impertiri judieiuvi suum." See Phosphate Sewage Co. v. MoUeson, 1876, Ct. of Sess. Eeps. 4th ser. iii. (H. of L.), p. 77, a case of a claim in bankruptcy which depended in the court of a country other than that in which the main process was being carried out. On the plea of his alibi peridens, see infra, § 473, and note.] b. the parties and their legal representatives. Title to Sue and Necessity for employing Qualified Practitioners. § 401. The . lex fori governs the legal relation which is involved in a lis or process, and this relation again determines what are the rights of the parties as such. Hence it follows that all the rights of the parties as such are dependent upon the lex fori. This will regulate in the first place the question whether a particular person can appear at all or not as a party {e.g. in cases where the law of the court recognises some general rule whereby foreign juristic persons ^ are refused a persona standi in ^ See Despagnet, § 249. The same force must be conceded to the judgment of a foreign court upon a criminal process in this country. See Trib. Corr. Seine, 9th Deo. 1879 (J. ix. p. 189). See, too, German Criminal Code, § 172. "Adultery shall be punished with imprison- ment of the guilty spouse, if the marriage is dissolved in respect of it." In such a case a foreign decree of divorce may be taken into consideration. » According to the view held in the United States (Wharton, § 737a), subjects of hostile States, in the absence of a special indulgence, have no right to sue, so long as the war lasts. This is in contradiction to the legal theory received in Germany and France, and to the prin- ciples of modern laws of war (see Laurent, v. § 67), since war is carried on only by the sovereign powers of the two States. To be logical, it would be necessary to forbid payment of debts due to the subjects of hostile States, so long as the war lasted. Indeed, Wharton says (§ 497) : "All contracts made by the citizens of one country with the citizens of another country, when the two countries are in a state of public war, will be adjudged void." It •would be absolutely impossible to carry out any such rules in wars upon the continent of Europe at the present day : they would interfere with the conduct of the war itself. § '^^^^ TITLE TO SUE, ETC. 873 judwio,a. rule which seems to us to be altogether unjustifiable). The lex fori will m the same way determine whether a party can take part in the process personally, or whether he must avail himself of the services of some legal adviser who holds a license to appear in the court. But in this, as in other cases, the law which must primarily determine the question may commit the decision of some prejudicial point to another law, and from the nature of the subject that must be the case with regard to questions of capacity to sue, in so far as that title is merely one aspect of general legal capacity and capacity to act. Since the foreigner has in general the same legal capacity in matters of private law as our own citizen, and since nowadays every one has legal capacity, juristic persons having at least capacity to sue (see sup-a, § 105), the practical result IS that in questions of capacity to sue we need not consider anything more than the capacity to act,^ and that is a thing that must be determined, not by the lex fori, but by the personal law of the party concerned. This rule 3 is recognised even by those* who in other respects maintain that the lex fori must be applied almost without exception in matters of civil procedure. Unfortunately in § 53 of the German Civilprocessordn. this rule has been set at defiance in a manner for which there is no justification.^ ^ See German Civilprocessord. § 51. "A person who can bind himself by contracts has capacity to sue and be sued." 2 See Foelix, i. § 33 ad fin. ; Mittermaier, Archiv. filr civil Praxis, xiii. p. 303; Sohaffner, p. 204 ; Wetzell, Civilproe. § 43, note 24 ; Eenaud, Civilproc. § 9, note 8 ; Wach, Cimlproc. § 47, No. vi. Judgment of the Sup. Ct. at Wolfenbiittel, 20th Jan. 1858 (Zeitschrift filr MecUs- ^flege im Serzogthum 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 deter, mined by the law of their domicile. See, too, Sup. Ct. of App. at Jena, 15th Dec. 1831 (Seufifert, xiii. No. 181); Kiel, 31st May 1856 (Seuffert, xv. No. 94) ; Berlin, 6th Oct. 1873 (Seuffert, xxix. No. 210). * Menger, p. 140 ; v. Canstein, Lehrbuch d. Geschichte u. Theorie d. Oesterreich. Civil- jarocessordn. i. (1879) p. 291. Story, § 77, and Wharton, § 698, do not express themselves quite distinctly. Even English law will determine according to the lex domicilii a mandate given by the party at that domicile. 5 "A foreigner who has not capacity to sue by the law of his own country is held to have that capacity, if the law of the court in which the process depends invests him with such capacity." It has been attempted to draw an analogy, which is quite inapposite, between this question and that raised by § 35 of the introduction to the Prussian Allgem. Landr. and Ijy § 84 of the German statute on bills. What may perhaps in all cases be allowable in contracts, and especially in contracts by bills, may very well not be justifiable . in the law of process. If we proceed logically to ibllow out § 53 of the Civilprocessordn. we should require the court to reject the claim of a guardian to appear in Germany, if his ward, who was a minor by his own law, was major by the German law, when he proposed to institute a process on behalf of his ward, or at his own hand to appear to defend his ward's interest or to assist him (cf. Gaupp, Civilprocessordn. i. pp. 180, 181). Struckraann and Koch propose to allow him a right to appear with his ward : I do not understand how that can be done, if the German court is to ignore the position of the guardian altogether. Undoubtedly the recog- nition in a foreign country of any judgment pronounced against the ward in such a case would be met with difficulties, and thus the German suitor, whose special protection and convenience were intended to be secured by the provisions of § 53, might very probably suffer prejudice, if he should try to execute his judgment abroad : all the trouble and expense of the process in Germany would have been thrown away, But § 53 will, give us absolutely no certain guide 874 bar's INTERNATIONAL LAW. [§ 401 It is a necessary inference from the proposition that capacity to sue and to be sued is ruled by the personal law of the party, that this other question, viz. whether a person who has in himself full capacity to act, e.g. a juridical person — a commune {Gemeinde) it may be — needs special authority to carry on a suit, must be determined also by his or its personal law. This is true also of the authority of any legal representative of a person, who in himself has no such capacity, e.g. the authority of a guardian to conduct a process. In dealing with the subject of contracts in the way of trade (supra, § 142), we found it necessary to advocate a certain respect for the lex loci actus, and to make certain exceptions from an exclusive application of the personal law in these matters. But in questions of capacity to sue and to be sued, we cannot admit that there is any reason at all for any such modi- fication of the general rule. Actions are not legal transactions which are hastily and summarily gone about. In these matters we have plenty of time and leisure to inform ourselves as to the capacity of our adversary. In summary processes, e.g. arrestments, our course must generally be regulated, to begin with, by a superficial enquiry, which in a certain sense is merely provisional. In such cases, accordingly, circumstances may require that a person should be held to have capacity to sue and to be sued, although by the law of his own country he has no such capacity, and will require to supplement his own capacity by the approval e.g. of his guardian. On the other hand, the court in which the action depends will not pay any regard to limitations which the personal law of the party imposes upon him as a condition of certain steps of procedure, limitations in regard to references to oath or compromises. General incapacity to act is a fact that must necessarily attract attention at the outset of an action ; such minor limita- in determining a question wBioh may very likely arise and be of practical importance, viz. wliat is to be said of a mandate to sue given by a foreign guardian in such a case in a foreign country ? The foreign law should of course determine all questions as to the validity of a mandate given there : but the logical inference from § 53 seems to deny this, and the ward could at any moment he wished make an end of the conduct of the suit by his guardian. Wach, (p. 549) recognises that difficulties may arise in consequence of § 53. Jn my opinion this provision, which the majority of the Imperial Commission on Justice celebrated as an international step in advance, is simply one of these abuses 'of what seem to be purely theo- retical principles for ends that are alleged to be practical, but are in reality most unpractical, which often find so much favour. Apart from the unsoundness of § 53 in principle, much difference of opinion prevails as to its true interpretation, as is often the case with enactments which are faulty in principle (see "Wach, p. 548 ; Bbhm, EechtshiiJfeverfahren, i. p. 62). First, does the rule apply to foreigners domiciled in the German Empire ? Second, does it sanction in the case of the foreigner the principle, which has not obtained much recognition generally in Germany, that capacity to sue and to be sued is dependent on citizenship and not on domicile ? Third, does the rule apply to Germans who are not domiciled within the jurisdiction of the court, and who have a personal law at variance with the lex fori? The first and second questions I should answer in the affirmative, the third in the negative. We must, however, decide rather on the words used than on any general principle. But § 53 will make it im- perative to apply the provisions of § 51 to foreign married women and children. Substantive rights of the husband and father cannot be affected by suits conducted by the wife or child (see Wach, p. 554). See Bobm's Rechtshiilfeverf. i. § 8 ad fin. on the whole subject of § 53. 402] PLURALITY OF PARTIES, ETC. 875 tions, on the other hand, are easily overlooked. Besides, steps of procedure which have the same names in different systems of process have very different effects as matter of fact. This would be a sufficient reason for denying effect to them beyond their own territory. The iona fides of international intercourse would be defeated if we allowed them to have any such effect.*' '^ Plueality of Parties. Legitimatio ad causam. § 402. The lex fori must undoubtedly regulate primarily the competency of associating a number of persons as pursuers or defenders, and also the right of persons, other than the original parties, to join in the suit {inter- vention). But still it will often be necessary to appeal to some substantive foreign law to tell us whether there is such a community of rights among a number of persons as to entitle them to sue or to be sued together, or whether there is a legal interest which justifies us in sisting new parties. The question 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 causam — is dependent 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 itself which is in dispute, or only the privilege of exercising it. Eights and Duties of the Parties as such towards each other. Caution foe Expenses. Eights of the Poor. § 403. 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 expenses of process, to find caution for expenses,^ and to produce documents.* Foreigners and citizens stand on the same footing on these matters. « On the other hand, Gaupp, D. Civilprocessord-n . i. p. 181, on the ground that § 53 contains an exceptional provision, which does not admit of being applied by analogy. § 52 of the Ordnung itself, however, refuses effect to- such limitations in the case of persons who belong to the German Empire, "if they have a general capacity to sue and to be sued, or if the law of the court requires no special authority to be given." 7 The question of the capacity of a bankrupt to sue and to be sued will be discussed below, under the law of bankruptcy. 8 P. Voet, X. § 8 ; Schaffner, p. 202. . . ,-, ..u 9 Lammasch, p. 391, is wrong in holding that this last obligation of parties is, like the obligation of third parties to produce documents, regulated by the law of the place of residence. The duty of the party has no connection with the imperium. The difference in the presump- tions arising from failure to produce in the case of a party or of a third person (D. Civil- processordn. § 392), shows the impossibility of treating the two cases alike in international questions. 8/6 bar's INTERNATIONAL LAW. [§403 An exception, however, which is very widely recognised,^" is the exception as regards the obligation to find caution for expenses. Although the law does not now, as a rule, require a pursuer, who is a citizen of this country, to find caution, it does give the defender right to demand such caution from a foreign pursuer. The practice in France has laid it down that the right to demand that a foreigner shall find caution belongs to the droits civils}^ which no one but a French subject, or a person domiciled by the license of the Government in France, can exercise.^^ But tlie 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 sentence of the court, and put the defender in a specially disadvantageous 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. The result is that a defender who is a foreigner must have the same right to demand caution from another foreigner, who sues him in our courts, as a native defender has. This is the view of the German Civil- processordn., according to the interpretation of it which is generally '" See Phillimore, § 890, on the general recognition of this rule. It is unknown in Austria (v. Piittlingen, p. 405). Review of the different legal systems in Gerbaut, § 123. ^^ See the Arrets du Cour de Pau, 13th December 1836 (Sirey, 36, 2, p. 362) ; Cour d'Orleans, 26th June 1828 (Sirey, 28, 2, p. 193) ; Foelix, 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 1876, J. v. p. 264 ; C. de Douai. Auckaert v. Delmoitiez, 1877, J. iv. p. 142. 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. ] " But whereas in Germany and in France citizenship determines the question, it being always understood that' in France a foreigner with a domicile licensed by Government is on the same footing as a Frenchman, the English law requires every persop who is permanently resident abroad to find caution, so that de jure there is no distinction between citizens and foreigners (Piggot, p. 185). Domicile rules in the United States. Conversely, a citizen who is domiciled abroad is not required either by the law of France (Gerbaut, § 137) or by that of Germany to find caution. According to a judgment of the Court of Celle, 5th November 1881 (Seuffert, xxxvii. No. 149), even the acquisition of another nationality will not give rise to the obligation ; it is only the loss of German nationality on the grounds recognised in Gorman law that will do so. ^3 rphe foreign pursuer will not, however, be free of the obligation to find caution, if the judgments of the court where the suit depends are executed in the country to which he belongs. Gerbaut, § 41 ; C. de Paris, 24th February 1877 (J. iv. p. 38). Foreign sovereigns, ambas- sadors, and foreign States, are subject to the obligation. Against them it is more difficult to reckon on execution than against individuals. Gerbaut, § 46. § 403] OBLIGATION TO FIND CAUTION. 877 received;^* the opposite view prevails in the law of Belgium and in France.^5 Since the object in view is in truth the security of the defender/* which is thought to be imperilled by the fact that the pursuer is a foreigner, it matters not that the claim on which the action is founded was originally a claim competent to a native of this country, if it is being pressed at the present moment by a foreigner, i.e. some foreign assignee, in his own name.^' So, too, one who loses his citizenship and becomes a foreigner pendente processu will be liable to find caution ; ^^ as, too, every foreigner must be who may eventually be liable on his own account in payment of expenses. Accordingly, a foreign pursuer is not exempt by the fact that he has others, citizens of this country, joined with him as parties to the action ; ^^ there must, to relieve him, be some one responsible for the whole expenses of the action. On the other hand, it is quite immaterial that a person should in point of form only be described as pursuer. "We must rather look to the question whether in point of fact the person concerned seeks to acquire something for the first time,^" or to alter some existing legal relation, not merely to affect some relation which has just been brought into being by some preliminary process, or, at the least, proposes to ask for special legal recog- nition of some state of circumstances in which he stands, or of some docu- ment in which he is interested. An example may be found in actions of declarator (see I). Civilprocessordn. § 231). Accordingly, a person who is an appellant, or who takes advantage of some exception, is not bound to find caution. Nor is one who asks for the loosing of arrestments in security used a"-ainst him, or makes a motion for that purpose, or as a defender resists the arrestments of things in the hands of third parties or of out- standing debts.^^ The person who is liable is the pursuer in the first instance, or the person who lays on an arrestment. 22 Where a party comes into an action, the point for consideration is whether he is sisted on the w Cf. e.g. Gaupp, i. p. 314 ; SeufiFert, Comm. § 102, No. 3. The same rule holds in Brazil. 15 Cf. Ct. of Douai (J. v. p. 264) ; Trib. Civ. Pondioherry (J. vi. p. 552) ; Tnb. Civ. Anvers, 28th December 1878 (J. viii. p. 70) ; Trib. Civ. Gand, 7th May 1871 (Dubois, Eev. iv p 150) • C. de Liege, 12th February 1880 (Kev. xvi. p. 145). But to the opposite effect see Demangeat on Fcelix, i. pp. 271 and 296 ; Mass^, p. 336, note 1 ; Haus, § 110. " It is true that by degrees most modern legal systems have adopted the formal qualifica- tion of citizenship as their rule. Thus we have no further concern -with domicile. Accordingly, an obligation to find caution will not be created merely by leaving the German Empire. Landgericht Halle, 22nd December 1883, Zeitschr.f. deutschen Oivilprocess. viii. p. 506. " Gerbaut, § 51. " See the express provision of the D. Cimlprocessordn. § 103. 19 Gerbaut, § 49. 21 See tebaut, § 53 ; Trib. Seine, 22nd Jan. 1876 (J. iv. p. 142), and 7th Aug. 1879 (J. vi p 541) See, too, Clunet, J. vii. p. 393. On the other hand, the tenant who demands something from the lessor which he is withholding, is liable in caution. . ^^ „ ., , , 22 Cf. Fcelix, i. § 190, and the French judgments cited there. .Francke in the Zeitsclw. f. deutschm Cimlproeess. iv. p. 524 ; Ct, of Coin, J. vii. p. 252. 878 bar's international law. [§ 403 side of the pursuer or on that of the defender.^ On the other hand, actions of reduction and restitution recognised by the D. Civilprocessordn. seem to be actions ^* directed against a state of circumstances which is ruled by some judicial decree, and in such cases it is no reason for exemp- tion that the party was a defender in the preliminary process. The pursuer of a counter action is not bound to find caution, provided that his claim in that action can be represented simply as the contradiction of the claim made by his adversary in the original action. But he will become liable to find caution if the original action is thrown out or with- drawn, and the counter action left pending; or if the conclusions of the counter action go beyond those of the original action, or if it rests upon some legal relation that has no affinity to that on which the other action proceeds, and in the latter case there is a prospect of additional separate expense. Even a demand for execution of a foreign decree, which is according to the German procedure and English law stated in the form of an action, makes the pursuer of it liable in caution. But execution per se proceeding on the ground of some title obtained in this country is not an action, and does not involve finding caution.^^ It is possible that in no very remote future the whole obligation to find caution for expenses will disappear. It is already gone in Italy. By the German Civilprocessordn. [§102 (1)],^^ the foreign pursuer is free from any such obligation, if by the law of his country a German is not obliged to find sureties. In a large number of recent treaties,^' the contracting States have done away with all such requirements by reciprocally guaran- teeing "acces libre et facile auprh des tribunavx." ^ As a matter of fact, a defender may suffer just as much from a groundless action raised against him by an insolvent native of his own country, from whom no caution is required, as he can from a foreigner. The Institute of International Law (Zurich Eesolutions of 1877, Ann. ii. p. 44) expressed itself in the same ^^ Gerbaut, § 60, and Gaupp, Cimlprocessordn. i. p. 314. " So, too, Seuffert, Deutsclie Civilprocessordn. § 102 (n. 2); Struokmaun and Koch, § 102 (n. 1). If one resists execution he is in truth pursuer upon a real right. See Trib. Seine, 16th June 1880 (J. vii. p. 392). But one who asks for execution of a foreign judgment is pursuer in the sense we have laid down. See Franoke, x. p. 104. 25 Gerbaut, § 62, p. 56. 28 According to the conceptions of this statute it is not enough, if the German as such, or as d, foreigner, is not required to find caution in the other country ; the requirement is that the German pursuer shall be absolutely free from any obligation to find caution in like circum- stances. Caution may then be required, if in the foreign State in question it may be required from the subjects of that State itself. (Cf. Struckmann and Koch on § 102 of the Civil- processordn). This is a step beyond the requirement of reciprocity, for which so much may be said in international law. But it may perhaps be supported in respect that there may be n. statutory obligation in a State that caution should be found, which although not in form con- fined to foreigners, is worked so as to affect foreigners for the most part. '^ See T. Bulmerincq, p. 230. In some treaties the obligation to find caution is only dispensed with if persons have been admitted to the benefits of the poors roll. 28 See Gerbaut, § 97, and the Franco-Spanish treaty of 7th Jan. 1861, dealt with by the Trib. Seine, 23rd Nov. 1880' (J. vii. p. 575), and Clunet, ibid. NOTE TT\ OBLIGATION TO FIND CAUTION. 879 sense as these modern treaties ;29 as also does Gerbaut (§ 102), who has treated this question perhaps as thoroughly as any one, both from the point of view of positive law and of legislative expediency.^" Justice requires, too, that the benefits of the poor's roll should be extended to foreigners. To refuse poor foreigners such privileges (assistance judiciaire) may be a direct denial of justice. In modern treaties, reciprocal admission of the subjects of the contracting powers to the benefits of the poor's roll is often conceded.^i But this must not be used as an argument for maintaining that foreigners cannot claim admission to that roll except through treaty provisions. NOTE TT ON § 403. CAUTION FOE EXPENSES. POOR'S ROLL. [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 Scotland, 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 Tule is applicable even to a Scots pursuer resident abroad, or leaving Scotland during the dependence of the suit. If he is resident in England or Ireland, he is not required to do so, unless there are some other circum- stances than his absence from Scotland that render it proper he should do so (Lawson's Trs. 1874, Ct. of Sess. Eeps. 4th ser. i. p. 1065). The order to sist a mandatary is entirely in the discretion of the court, and the con- siderations 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 (D'Ernesti v. D'Ernesti, 1882, Ct. of Sess, Eeps. 4th ser. ix. p. ^ " L'Uranger sera admis d ester en justice aux 'mimes conditions que le rignicole.'' '^ By Franco-Belgian law no caution is required in commercial matters. The decisive consideration, however, is not whether the process is or is not actually dependent in a com. mercial court, but whether the question on its merits is or is not substantially a commercial one (Braun, J. viii. p. 405). By the German Cimlprocessordn. the following exceptions, in addition to the case of reci- procity in the foreign court, are recognised : — " {'Z.) Cases connected with bills or instantly verifiable by documents ; " (3. ) Cases of counter actions ; " (4. ) Cases which are instituted in consequence of a public requisition to do so ; "(5.) Cases arising out of claims the foundation of which is in some laud register or register of incumbrances kept by a German official." ^^ E.g. Treaty between France and Austria of ] 4th March 1879 (J. vii. p. 611), and between France and the German Empire on 20th Feb. 1880. Both of these treaties also release person^ admitted to the poor's roll from obligation to find caution for expenses. In Austria, foreigners are always admitted to the poor's roll if there is a guarantee of reci- procity. See Starr, Die BeehtshUlfe in Oesterreich, p. 19. 88o bar's international law. [§ 404 655). An impecunious pursuer will, in certain circumstances, be required to find caution, even although he be a Scotsman. The benefits of the poor's roll in the courts of Scotland are not confined to Scotsmen (cf. e,.g. Flynne, Ct. of Sess. Eeps. 4th ser. ix. p. 909.] Mandate to Caeky on an Action. § 404. The lex fori must of necessity be used to interpret, in all questions connected with the process, the effect of a mandate specially given for the purpose of carrying on an action, even although that mandate should have been given abroad by a foreigner. The mandant knows that the mandate must be made effectual for the court and for his opponent, as well as for his own mandatary. Thus the mandatary is empowered to make a compromise with the adversary, if that is one of the powers with which the lex fori invests a mandatary. The rights and duties of legal advisers with a licensed position, and of procurators in a suit, will be regulated, 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 really rest upon a license conferred by the State, and in some respects may well be compared to a public 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.^^ Position of Fokeignees in Arrestment Proceedings. Claims of Damages on Account of the Use of Arrestments. § 405. In procedure connected with arrestments, the favour which at one time was shown to citizens, and the disadvantages to which foreigners were put as such, are now gradually disappearing.^^ Unless there is an express enactment to the contrary, the foreigner may use arrestments against a person on exactly the same conditions as a citizen can do so. It is not the quality of an opponent, as foreigner or native, that gives the '2 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. See Ct. of Paris, 15th June 1875 (J. ii. p. 435). 2' Formerly there were many such cases. Cf. e.g. Spangenberg in Linde's Zeitschr. fur Civilr. u. Proc. iii. p. 431, for the old law of Hanover. Peck, de jure sistendi, c. 1, 2. The so-called "foreigner's arrestment" was only competent to citizens. Judgment of Sup. Ct. of App. 26th October 1842 (Heuser, Ann. i. p. 88). On the new state of affairs, see, as regards France, Fcelix, i. § 162, and J. v. p. 380. For Italy, Gianzana, ii. § 255, § *^^^] JURISDICTION OF THE COURTS. 88 1 right, but rather the fact that the assets of his property are likely to be withdrawn from the jurisdiction, or may be so withdrawn.=^f It IS, too, the lex fori, and not the law of the party's domicile, that must decide upon obligations of reparation for the unwarrantable use of any step of procedure, especially, for instance, an unwarrantable use of arrestments.^^ It is quite obvious that we are here again dealing with a subject that must be referred to that law. One who desires to have the advantages of any course of procedure, cannot refuse to take upon himself any disadvantages that may eventually turn out to be associated with it. C. JURISDICTION OP THE COURTS. JUKISDICTION IN EESPECT OF SUBJECT MATTER. COMPETENCY OF THE Legal Eemedy. § 406. The essentials of the composition of the court, and questions of jurisdiction of the different courts of the country in respect of subject matter, i.e. questions as to what kind of court has to decide this particular claim, must plainly be fixed by the lex fori. The point simply is, which of the machines of that State which is to take up and decide the matter, is the one by which the decision is to be given ? In such a matter, the sovereign power of the State cannot submit to any instructions from a foreign law. Thus, 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.^ But till modern times special privileges were often granted to foreign nobles, if in both countries the nobility enjoyed somewhat similar privileges. Accordingly, it looks at first sight as if the competency of the legal remedy, i.e. the question whether the courts are to decide at all in this or -that matter, must in the same way be determined by the lex fori, and by it alone.^ But after more careful consideration we find that we must hold ^ See German Civilprocessordn. § 797 (2) : " It is to be held a sufficient ground for arrest- ment, if the judgment has to be executed abroad." 25 See Ger. Imp. Gt. (i), 20th September 1882 (Entseh. vii. No. 116, p. 380) ; but this .flecision rested on the consideration, which, in my opinion, was wrong, that the question was one as to the consequences attached by the law to the trespass on the rights of another whicli had been committed, and that the law of the place where this trespass had been committed must decide. ^ Fcelix, i. § 126. Parties have no right to appeal to arbitration, unless that be specially .arranged between them, although that may be the rule according to the law to which the leo'al relation in question is subject (Foelix, as cited, note 1). It cannot mate any difference -that a State, by a special commission, has invested some person temporarily with the position .of a judge in place of the officials who are permanently engaged in such Work. 2 See to this effect Imp. Ct. (iv.), 16th September 1886 (Bolze, Praris, iii. No. 37, 1881) The competency of the legal remedy is held to be determined by the lex fori, even although -the legal relation in question is under the control of a foreign law. 3 K 882 bar's international law. [§ 407 that this question is ruled by the law which determines the merits of the case in hand.* If the parties are only bound to respect the decision of some non- judicial foreign official, the substantive nature of the claim would be altered by allowing them to have recourse to the courts of another State. But if, conversely, the law which decides upon the substantive bearings of the legal relation in question allows the court to decide such questions, then, if both parties are agreed, or if, by embarking on the contest, they may be held to be agreed, the matter in dispute may be brought before the courts of some other State, even although there may be no doubt at all that this kind of legal remedy would have been exclude'd, if the question at issue, had in its substance belonged to that State, in the courts of which it now is. For the exclusion of the ordinary cursus curice does not mean that the courts are not under any circumstances to dispose of such questions, but simply that they are not to dispose of such questions among their own citizens. They might be brought into operation e.g. even in such questions as specially selected courts of arbitration. Territorial Jurisdiction. Nationality of the Parties. French Law in particular. § 407. The jurisdiction of the courts of this or that State generally,* and the jurisdiction of the particular courts of a State, must be determined in so far as the court in which the process depends is considered, by its. own law. The matter for determination, on the one hand, is what contested questions the State desires to have dealt with by its tribunals, and eventually by each one of these tribunals.^ Even although tlie court should look upon the rule by which its own competency is affirmed as a trespass upon the jurisdiction of the courts of another State, or even as, contrary to the principles of public law,*' it must still hold itself to be- competent, for it owes obedience to its own law. An example of a trespass of the kind referred to will be found in article 14 of the Code Civil, a view- in which even French jurists concur : another, as we think, will be found to- be involved to some extent in § 24 of the German Civilprocessordn.'' It is ' Accordingly, tlie question -whether administrative officials can make arrangements for the education of a child must be decided by the child's own law. So Sup. Ct. of Stuttgart 25th January 1861 (Seuffert, xvi. No. 57). ' ■* Gerbaut, § 4-35, gives a view of the rules of competency recognised in a multitude of States, in matters connected with other countries. So does Piggott, pp. 375-551. The latter is very copious as regards non-European countries. See Wharton, §§ 704 et seq. as regards the United States. 5 On this point ther.e is no dispute. See Asser-Rivier, §§ .68, 69. « Cf. e.g. D,iguin, p. 117. ' Provisions of that kind often d.image the citizens of the very State which enacts them.. No French decree founded on art. 14 of the code will be put into execution by a foreign law." § '*^''] TITLE OF FOREIGNERS TO SUE. 883 quite another question whether and to what extent the courts of another State will be bound to recognise a jurisdiction thus assumed. It is also questionable whether it is desirable for a party to make use of such an exceptional provision. A further question may, however, be started, viz. whether the nationality of the parties should form any substantial consideration in determining questions of jurisdiction, so that the legal system of a country should, as a rule, have to deal only with disputes between citizens or between a citizen and a foreigner, and should have nothing to do with disputes between foreigners ; or whether the grounds upon which the law declares the courts to have jurisdiction are to be applicable to foreigners as much as to citizens, excepting always particular classes of cases, in which the peculiar character of the legal claim which is at issue makes it necessary to keep in view the citizenship of the parties. The former view, i.e. the view that the courts should not deal with disputes between foreigners, is in principle the view of practical French jurisprudence at the present day.* It starts from the principle that, as a matter of principle, the French courts of justice are under no duty to judge in matters in which foreigners only are concerned ; that, as a matter of principle, therefore they are entitled to refuse to entertain any action to which foreigners, and foreigners only, are the parties. But it finds itself compelled, by the requirements of everyday life, to recognise an ever-increasing array of exceptions to this principle,® so that at last the exceptions seem to swallow up the principle. As a matter of fact, it is very difficult to refer foreigners who have been promised the protection of the law, to foreign courts, which may be at a great distance, within whose jurisdiction it may frequently be impossible to find either the person of the defender, or any property of his that can conveniently be taken in execution. The substantive law, which we pretend to guarantee to foreigners, would not unfrequently turn out to be a mere phantom, if such a power, of referring these foreigners to their own tribunals, were exercised. On the other hand, if the Frenchman brought a fresh action in the foreign country the cxceptio rci jadicatos might be invoked against him, for he was the person who went to the French court. If there are not assets in France to satisfy the decree, in any case the Frenchman has liail liis outlay of expenses for nothing. ' See on this subject Bard's work, § 221 ; Gerbaut ; also Feraud-Giraud (De la competence des Iribunaux francais pour connaitre des contestations entrc etrangers, J. vii. pp. 137-173, and |)li. 226-238) ; Glasson (J. viii. pp. 105-133) and the illustrations in Weiss, p. 924. This rule of practice (cf. Fceli.x, i. § 149) is connected with the older French doctrine and practice, and is regulated by a judgment of the Court of Cassation of 22nd January 1806. A subsidiary gio\ind on which French courts justify their refusal to entertain suits between foreigners is, that in applying foreign law they are very liable to error. (See against this Demangeat, note to Fcelix, i. p. 322, and Weiss, p. 934. ) But it is not possible to avoid altogether paying some attention to foreign law. Still weaker is the plea that the courts are burdened with too much business. ' £.g. the principle is not recognised in commercial questions (C. de Paris, 21st May 1885, J. xii. p. 541) or in questions of interim possession. 884 bar's international law. [§ 408 On these grounds, more modern French theories are already beginning to throw over the whole of this limitation:!" in Belgium, by the recent Procedure Statute of 1876, it has been expressly abolished," and there has been adopted the principle which prevails in the common law of Germany,!^ y^ the law of Austria.i^ of England," of the United States,i= of Italy,i« and generally in the laws of most countries," and which has found correct expression in this resolution of the Institute of International Law (the limitation attached to it is explained by the circumstance that in certain cases the nationality of the parties must determine the jurisdiction of the courts) : — " Bans les proems civils et commerciaux la nationaliU des parties doit rester saTis influence sur la competence desjuges sauf dans les cos oti la nature meme du litige doit faire admettre la competence exclusive des Jvges nationaux de I'une des parties." ^^ ^^ § 408. We must not, however, forget that this rule of French law which is thus to be rejected has, in a certain sense, borne fruit for the tlieory of the law of procedure in international questions. It has led to a more careful consideration of the question, how far it is sound to extend grounds of jurisdiction, which are sustained by the law of any particular country, to suits in which foreigners appear as parties. This consideration has led to the proposition which, in my opinion, is a sound proposition, that a distinction falls to be made, according as we are dealing, on the one hand, with rules of jurisdiction by which the distribution of different kinds of actions among the several courts of one and the same country is regulated, or, on the other hand, determining international " So Laurent, iv. § 46 ; Asser-Rivier, § 70 ; Feraud-Giraud, J. vii. p. 144; Gerbaut, §§ 293, 294 ; Durand, p. 438 ; Weiss, p. 934. ^^ Laurent, iv. § 37, and Weiss, p. 937 ; Asser-Eivier, p. 155, note. ^^ The German Civil processordn. starts with this princple. ^ Menger, pp. 145, 146. ' " Piggott, pp. 132, 139. ^'' Wharton, § 705. The law of Louisiana is different. '* Gianzana, ii. § 80. See Lomanaco, p. 220, for Pisauelli's brilliant defence of this principle. 1' See Ct. of Luxemburg, 5th January 1887 (J. xiv. p. 674), for a simple application of the ordinary rules of jurisdiction to actions in which foreigners are concerned. See Clunet (J. xiv. p. 676) to the same effect. 18 From this there follows the proposition, which in my view is perhaps not quite so sound (see Ann. i. p. 126), viz. : "Les tribunaux saisis d'uTie contestation, doivent d, Vigard de la compiteiice adoptee par les traits, stattier d'aprig les mimes regies qui ont iti itablier A Vigard de la competence, par les his dupays. Ainsi dans les pays ou ce systime est adoptde pour V application des lois nationales concernant la compitence des tribunaux, ils n'e se declariront pas incompetents d'office quand ils'agit de I'incompetence ratione personce." These propositions were adopted on the proposal and report of Asser (Rev. vii. pp. 364-391, especially p. 367). 1" Subjects of a State, with which we happen to be at war, must be admitted all the same to sue and be sued in our courts. See Gerbaut, § 9. It was otherwise in old French law. On the other hand, the decree of 19th Thermidor, in the year 11, directed against the English, was regarded as an isolated exception. See, however, siipira, p. 872, note 1. § '^^^J JURISDICTION OVEli FOREIGNERS. 8S5 questions of jurisdiction affecting the whole courts of the rival States concerned. This distinction is not of very much importance in connection with English and American procedure, or even for systems ruled by the common law of Eome, for these are all systems of procedure, in which jurisdiction rests upon a subordination of the different classes of actions to the judicial authority of this or that court, which is as natural as the lines of demarcation by which the jurisdictions of different countries are defined. The distinction is, however, of more importance in a series of more modern legal systems, in which one jurisdiction is piled upon another, so as to give every single court within the State an extravagantly broad sweep of jurisdiction. 20 Now, although it can never be a matter of indiffer- ence, it may not be a matter of vital importance, wliether a defender must, according to the pursuer's pleasure, submit to the jurisdiction of this or that court among the many courts of one and the same State, since all of them are guided by a legal system which does not vary very much, according as this or that court administers it, and they are all subordinate to one and the same supreme court of appeal. But it is a different affair, if an extended jurisdiction is conferred upon a court in connection with matters which mqst, in whole or in part, be ruled by foreign law, and of which it can be said with good reason that they should be handed over to a foreign judge, who will decide them by the rules of a foreign legal system.^i Of course, the dangers of a palpable excess of jurisdiction become more pronounced, if the pursuer is not required to establish beyond all doubt the competency of the jurisdiction which he has invoked, where the defender does not answer the citation, or if such failure to answer is held to be, as most authorities think it is, e.g. by § 296 of the German code of procedure, an admission by the defender of the competency of the court, and the right to dispose of the suit is thus made to depend upon fictions which do not justify it. Any such maxims are, even in the domestic intercourse of a ^ See below as to the encroachments on the true limits of jurisdiction sanctioned by French law. But the German code of procedure itself has (§§ 12-36) adopted a complete specimen catalogue of jurisdictions. 2' Curti (p. 10) says very truly that the rule "actor seqiiitur forum rei " should have a higher force given to it in international questions than in domestic questions. In such a case, the defender has a double interest not to be compelled to defend himself before a foreign judge, under the dominion of a foreign law, at a distance from the centre of his business and family connections, against a suit brought in that court, it may be, from malicious motives. But a glance at the positive systems of jurisprudence will show that that rule is very often neglected in international affairs, owing to a distrust of the administration of justice in foreign •countries. The praise, however, which Curti bestows on the German code of procedure is undeserved. It is true that it does not expressly extend to foreigners the grounds of jurisdiction which are suBBcient against German subjects : but the extravagant catalogue of jurisdiction which it But we must also answer the question in the negative, when the error in question is an error in private international law (in connection with the application of this or that municipal law), or is an error as to the provisions of the law of the country in which execution is sought.*^ If we admit the possibility of refusing execution on grounds like these, we turn the court of execution into a sort of appeal court against the court in which the principal process depends. We must, in addition, remember that according to the theory which we ^ On this question see Gianzana, ii. § 252. The Ct., of Cass, at Turin laid down on 10th Nov. 1880 that a foreign arrestment which had been allowed to be executed in Italy could not be loosed by the Italian courts. ^o See Lord Tenterden's grounds of judgment. [Becquet v. M'Carthy, 1831, 2 B. and Ad. S51.] Piggott, p. 123. ^' Undoubtedly the most recent English practice and theory recognise both of these pro- positions (see Westlake, Rev. vi. p. 613 ; Westlake Holtzendorff, § 310 ; Phillimore, § 944a ; Piggott, pp. 125, 126) [see supra, pp. 904, 905]. The defence of " palpable error" or of "gross injustice " is accordingly inadmissible now as against the merits of the judgment. Foote, p. 552. See J. iv. p. 249 [Meyer v. Balli, 1886, L. E. 1, C. P. Div. 358], for a judgment in accordance with the older theory. See Asser, Rev. i. p. 408, on the Italian practice ; de Rossi, p. 58 ; Clunet, J. iv. p. 250 ; and Lammasch,'p. 427. Wharton (§ 647), on the authority of Lord Hatherley [in Simpson v. Fogo, 1860, 1 J. and 954 bar's international law. [§ 445 have adopted the foreign court is only competent in cases in which the legal relation, upon which it has directly given judgment, is subject to the regulation of the law of that foreign State ; or in cases in which the parties have submitted themselves to the judgment of that court, either expressly or tacitly {e.g. by a change of domicile). In so far as the latter is the case, this very submission negatives all possible ground for allowing a review by the court of execution. But if, on the other hand, the court, in its judgment upon a legal relation which is governed by its own law, only erred in its judgment on some preliminary points, a power of review, and a refusal ot execution following upon that review, would simply be a criticism of the grounds upon which the judgment was put. If, on the one hand, we abandon the unpractical rule that erroneous application of foreign law can give no ground for the reversal of a judgment in the ordinary course of appeal in the same country ; and if, on the other hand, either courts of law or other properly constituted authorities are bound to give information, on the application of foreign tribunals, as to the law of their country on certain specified points, then, as Lammasch remarks (p. 429), there is no need for any such processes of review, which are contrary to all principle, and interfere with the certain application of the law. § 445. But our decision may be quite different, if the terms of a judgment pronounced abroad are contradictory of a final and operative judgment by our own courts, to which the same persons are parties. The question then will be, whether in the case of such contradictory judgments upon the same matter, or it may be in the case of several judgments upon the same matter which are not absolutely contradictory of each other, the law of the court that is asked for execution shall treat the earlier or the later judgment as invalid, and whether accordingly the foreign or the home judgment is valid. If we hold that the resjvdicata contained in the earlier judgment pronounced by our court must be pleaded by the interested party as a ground of action, of objection or exception, in order to make it possible to take notice of it in a subsequent judgment, then the judgment of later date will prevail.*^ N o doubt the theory that a valid judgment by the courts of this country will always prevent the execution of a foreign judgment, has many adherents.^^ In reality, however, this view is founded H. 18], who would refuse execution if the foreign judgment, in defiance of the principles ofinter- national law, had failed to apply English law, is of a different opinion, but does not distinctly explain what his opinion is. Fusinato (p. 68), agreeing with the Portuguese Code of Procedure of 1876, § 1088, would refuse execution, if the foreign court professed to apply the law of the court of execution, but misapprehended it. Lammasch has, however, answered this. *^ In agreement with this, Kohler, Zeitachr. fiir deutschen Oivilprocess. x. p. 470. According to § 543 of the German Civilprocessordnung, the discovery of a prior valid judgment is a ground for reducing the subsequent judgment. ■« Ct. of Paris, 1st Feb. 1884 (J. xi. p. 394) ; Gianzana, iii. § 103, and the judgment of the Ct. of Cass, at Turin, of 18th Sept. 1877, there cited ; see, too, J. xii. p. 455, and Clunet, ibid.; §■^46] RESPECT DUE TO JVS PUBLICUM. 955 on the erroneous argument that the jurisdiction of our own courts must always take precedence of that of the courts of any other country. A judgment of this country cannot, of course, he formally recalled by a foreign judgment : ** but that is not the point here. On the other hand, it will not be admissible to take account of the objection that the judgment which is to be executed is alleged to be contradictory of a valid decision previously given in the foreign court : this is plainly an attempt to institute a new enquiry into a state of affairs which was already in existence when the judgment in question was given (C. de Paris, 19th March 1883, J. x. p. 514). Judgments at variance with the/ms puUicum of the State in WHICH Execution is demanded. § 446. Again, it is generally laid down that the contents of a judgment must not be at variance with the jus publicum, the ordre public of the State in which it is to be executed.*^ This exception, however, needs more accurate definition. In the first place, it is plain that it is impossible to recognise a right., which is legally inadmissible at the place of execution,*^ or has necessarily as its object something' that is impossible, and is thus incapable of execu- tion.*^ But in this category we must also reckon the case that the act or the state of circumstances, which it is intended to enforce or to bring to pass by means of the judgment, is one that may not be forcibly brought about by the also Weiss, p. 964. According to the German Civilprocessordnung, the decree giving effect to a foreign judgment will not be interfered with by the fact, that a judgment was previously pronounced in Germany. I should fancy that this is the result of French law also (cf. Carre, Zois de la procidure civile, Quest. 739, § 4, note 3), for the exeeptio de la chose jvgie is lost according to French law unless it is pleaded. An antecedent judgment by a ibreign court is not treated in French law as an impediment to an exequatur. Weiss, ut cit. Ct. of Paris, 17th March 1883 (J. x. p. 515) ; Clunet, J. xi. p. 395. « On this point an unsound judgment by Trib. Seine, 24th August 1881 (J. ix. p. 306). See Clunet's excellent discussion, ibid. p. 308. * See, e.g. resolutions for the reform and codification of public law, of 12th Sept. 1SS3, published in J. x. p. 564 : " IV. Lejvgement ne doit rien contenir qui soit contraire ni a la TnwamniiiVordre, ni au droit public de VEtat ou il doit Ure execute." See Moreau, pp. 87 and 157 In France this exception is regarded as a matter of course, even where there is a treaty, if it does not specially reserve it. Italian Code of Procedure, art. 941. %i: "Sela sentema contenga dispomioni contrarie al I'ordine pubblico o al diritto interna del regno. " See Gianzana, "'' ■" io. a right in real property which has been swept away by the lex rei sitiz. See, as regards a trust for entail in Italy, Ct. of Cass. Turin, 17th Feb. 1875 (Gianzana, in. § 1/1). The exceptions contained in art. 2 of the Brazilian decree of 27th July 1878 refer only to riehts which are legally impossible according to the lex rei, i.e. the law of Brazil. _ « Norsa Eev. ix. p. 220. We must also include the case of the judgment having in view that some iknded property should pass to a juristic person, when the lex rei sUm says that such persons cannot hold real property. See Gianzana, iii. § 171. 956 bar's INTERNATIONAL LAW. [§'146 law of the country of execution ;** whether it be*" that this law thinks it right that the free will of each individual should have full play in the matter, or that it looks upon the act as one that is forbidden or at least is absolutely disapproved by morality, and must therefore not be enforced 1 ly the law. The question is, however, whether we should go further, and refuse execution in cases where it is not the act that is now to be enforced that is condemned by the court of execution, but where the legal relation which has been recognised in the judgment of the foreign court is one that the court of execution must condemn. Asser (Eev. i. p. 482) declares himself decidedly against this extension of the exception. He goes on to say that, if international jurisdiction is properly regulated or is defined by treaty, the matter in dispute is subject to the foreign law and to the foreign judge : accordingly, a refusal of execution would be invasion of a territory, which is not controlled by our laws. A refusal of execution, however, is no invasion of a foreign jurisdiction : it is something purely negative, a refusal to give effect to the operation of the judgment in another territory. If the general theory which we have already laid down (supra, pp. 96, 97) is correct, then that legal relation which is to be pleaded within our territory, and claims effect there, belongs to that extent to our territory, and is so far subject to the control of our laws. Here it is desired to put the decree in operation in a foreign territory. The question, then, is not to be so easily disposed of, as it would seem to be according to Asser's exposition. Still, the solution of the question which we have already {supra, pp. 96,97) attempted may suffice. Execution is not to be refused if some legal relation which our law condemns is a condition precedent, or one of the conditions precedent, of that which is sought to be attained by execution within our territory.^" It may be refused if the execution which is asked constitutes the real kernel of the legal relation which is thus condemned by our law. In this connection it must be remembered that in some cases the law will not allow action on an alleged claim (e.g. because proof in ■'" The language of the Civilprocessordnung, § 661 (2), viz. "if the execution would compel an act to be done which cannot be so compelled according to the law of the German judge who is considering the competency of the execution," includes both of the cases referred to. On this ground it is possible, although the cases will be very rare, that execution will be refused to a judgment pronounced within one German jurisdiction by the judge in another. The German Gerichtscer/assuiigsgesetz, § 159 (2), provides : " An application to a court which has not primary jurisdiction must be refused, if the court to which application is made has not local jurisdiction, or if the act that is required to be done is illegal by its law. " See Seuffert on § 661, note 4 ; Struckmann and Koch on the same clause. ^' U.g. no one can be compelled to contract a marriage or to return to married life. See German Civilprocessordnung, § 774 (2). It leaves the provincial laws which still exist in the German Empire to decide on the latter point. ™ Thus, for instance, the son of a Mohammedan, who lived in polygamy according to the law of his own country, is quite entitled to claim in our courts some asset belonging to his father's estate as his heir ; and thus we should put in force a judgment of the courts of his c oun try ^if indeed we recognised its judgments as judgments at all — ordaining a brother who lived here to give up the article claimed. § 446] NO EXECUTION' CONTRA BONOS MORES. 957 such cases may offend public decency, or because claims of the kind, unless they can at once be shown to be absolutely clear, may be abused as a means of imposture), while at the same time it will not refuse to give effect to the same claim if clearly established {eg. by confession). In the latter case, there is nothing to prevent execution being allowed to a claim that has been clearly established by judgment in a foreign country .^^ On the other hand, we should have to refuse execution to a judgment the object of which was the payment of a sum of money which had been promised as the consideration for the performance of some act, which in our view of morality seemed to be immoral, or which was the produce of some game of chance which was forbidden in this country as inconsistent with good morals. The emphasis is to be laid, however, although it may seem peculiar at first sight, on the immorality of the relation. It must not be forgotten, that prohibitions which are purely statutory have, in many cases, merely local reasons to justify them. If in such a case the relation so forbidden must as regards its merits be determined by a foreign law, or if the parties have subjected themselves either expressly or tacitly to the foreign court and its sentence, it would be unjust to refuse to allow this le^al relation, which in itself does not deserve any reprobation, to have its course in our dominions to the effect at least of ensuring that a money payment connected with it should be made, and ensuring this by compul- sitor, if need be. Those who in somewhat vague fashion, following Brocher, take a dis- tinction between an offence against ordre public international and an offence af^ainst the ordre public of a particular State, and will only refuse to oive effect to a foreign judgment when the offence is of the former kind,^^ are really thinking of some plain breach of moral sentiment.*^ We should then formulate the exception somewhat in this way, viz. : Execution should be refused, when it discloses itself either as the direct embodiment or realisation of some relation which is undoubtedly counter to good morals according to the theories of morality which prevail in the State of execu- tion, or if by allowing execution we should compel any one to do an act which, according to the law of the place of execution, no one should be compelled to do. The German Code has already found an imitator in restricting the exception to this latter alternative,"* and in truth such a limitation is 51 See nipra, pp. 455, 456. 52 So Weiss, pp. 960, 968. r .,, . t,- i «• j , • 63 It is impossible to prevent the conception of immorality, of that which offends loni mores from having an application to legal doctrine. Try as hard as we will to separate sharolv law and morality, the former will always borrow some ideas and theories from the Utter The most recent evidence of this is to be found in the draft of a municipal code for +V,,. o'erman Empire. § 105 says, "A transaction which is forbidden by law is null, unless otherwise expressly provided by the law ^hich forbids it : " then comes § 106, " A transaction whMnds agains't morals of public order is null." In other places a,, in § 1227, declaring That betrothal has no binding effect, the draft attempts to separate the spheres of law and moralitv in a way that is almost mischievous. 54 Thus in the Austro-Servian treaty, art. 2 (2), quoted by Lammasch. 958 BAH'S INTERNATIONAL LAW. [§ 446 recommended at least by its clearness. But it leads to substantial dangers of a serious character. Payment of money, as Lammasch (p. 4*21) points out, is lawful everywhere : therefore — supposing the other necessary conditions of an eoccquatur are present — execution resulting in such a payment can never be refused within the German Empire, although tlie foreign judgment may be the most direct realisation of some transaction, not forbidden by any German statute, but undoubtedly stamped as immoral.^ As Wharton points out (§ 656), the foreign judgment must not serve the purpose "of overriding any rule of distinctive domestic policy." This representative of English and American law, which goes so far in the recognition of foreign judgments, proceeds to say that " other- wise all that would be necessary to force the repayment law upon us would be to formulate it in the shape of a judgment." ^ Of course, if the defender appeals to the rule thus laid down, we cannot avoid to some extent entering on the merits of the case at the stage of execution. If we remember, however, that we do not propose to refuse effect to any legal relations except those that are, either in themselves or in their immediate consequences, beyond all doubt immoral relations, it will be seen that the grounds of judgment, if stated with the fulness °° Francke (p. 22) thinks that we should consider the object to which the act is directed, as well as the act itself. To make a payment which the receiver may dispose of as he pleases is, he says, in law something distinct from making a payment for a purpose condemned by German law, and in the latter case the German exequatur should be refused. This inter- pretation, the fallacy of which is pointed out by Lammasch, rests upon the erroneous notion that one can a priori draw a line between an act and the object of an act. Such a distinction is only possible with the help of some positive enactment, which is altogether wanting here. Its absence would result in a comprehensive enijuiry into the whole matter, which would often lead to imposture. Struckmann and Koch's commentary on § 661 (4) says, in reference to the German enactment : " Into this category fall, for instance, the celebration of a marriage, immoral acts, prestations that are obviously of an illegal character, etc. It is not sufficient that the judgment proceeds upon some transaction, on which by our law no action will lie, or which is absolutely prohibited, e.g. gaming: the enforcement of the act itself must be forbidden, and its object must be immoral." ^ Fusinato (p. 120) comes very near our rule: he proposes to refuse execution "guando il risuUato a cui questa (V esecuzione) condurrebbe sarebbe in contradizione con Vordine pubblico territoriale o con i prindpii di moralitd, o di buoni costumi." Lammasch is almost in the same position: he says that the exception will apply "if from the execution a result will follow which will be at variance with some prohibitory law of the State which is asked to give execu- tion." But these formulas are by no means identical with ours. Fusinato e.g. will allow (p. 119) the execution of a judgment for payment of a gambling debt in a country, the laws of which allow no action on a claim of that kind, plainly on moral grounds. I cannot assent to this. But if State A, on purely fiscal grounds, forbids gambling in foreign lotteries, but regards it as legal to make money by lotteries of its own at its own discretion from its own subjects, or at least allows its subjects that outlet for their gambling propensities, it cannot, in my opinion, refuse to execute a judgment, which proceeds upon a similar gaming contract, belonging altogether to a foreign State. Here we are not dealing with what the State of execution considers an absolutely and undoubtedly immoral contract, but merely with a local prohibition bounded by the territory of the State (see supra, § 257, note 14). The resolution adopted by the Institute of International Law at Paris in 1878 (Ann. 3rd and 4th year, i. p. 97) runs thus : " V exequatur ne serait pas accords, si l'ex6cvUon des jugetnerUs impliquait I'accomplissement d'un acte contraire d, I'ordre public ou difendu par une loi quel- conque de I'etat oil V exequatur est requis." § 447] JUDGMENTS AGAINST NATURAL JUSTICE. 959 which is required by the law or observed in the practice of most civilised States, will generally satisfy us. Judgments, however, the object of which is the recovery of private penalties altogether dependent on statute (conventional penalties must be dealt with on the general principles which regulate contracts), are, in my opinion, for the reasons already {supra, p. 637) stated, not entitled to receive exequatur in a foreign country, any more than judgments im- posing public penalties. In the one case, as in the other, the State must be convinced of the justice of the merits of the case in accordance with its own laws. Private penalties, although they may be recovered by civil process, occupy just the same legal position as public penalties. The case is different if the demand can be shown to be a demand for payment of damages, however liberal the estimate of these may be.^^ On the other hand, it will be a matter of no consequence whether the law of the country, in which execution is to be done, regards the act which the judgment is to enforce as one that belongs to the ordinary methods of execution, or as one that falls beyond these limits, provided it is an act which of&cials will only perform on the warrant of a valid judgment of a court, and one that can be put into execution. For instance, the case may be one of an entry in public registers, books of incumbrances, where entries can only be made at the express desire of a particular person : the defender is that person, and has been ordered judicially to See German Civilprocessordnung, § 691 (3) (4) and (5). 966 BAI^S INTERNATIONAL LAW. the State of execution, and regardless of the law which governs the judgment itself. On the other hand, in the case of objections which have not this more sweeping and absolute force, their effect must be determined by the law of the court which pronounced judgment originally, although the judgment on the point will be given by the court of the country of execution. There are indeed claims, the operation of which must not be interfered with by illiquid objections that may have arisen subsequently, e.g. by pleas of set-off or compensation which are not liquid. In the case of claims upon bills, this exclusion of all objections, which cannot at once be verified in a particular way, undoubtedly forms part of the substantive law on that subject. On that point, i.e. on the import and character of the claim established by the judgment, no law except that from which the judgment derives its validity, can be consulted. If, however, the defender has urged objections against the execution of a judgment in the court in which that judgment was given, its decision must in all cases govern the procedure of the court in which execution is desired. If the objections are repelled, then the decision must be recognised by reason of the voluntary prorogation of the defender, who has challenged the decision. If they are sustained, then the court which has given judgment has withdrawn from its own judgment all claims for execution, i.e. it has withdrawn from it the foundation on which execution in a foreign country must necessarily proceed. How stands the law if, after a judgment, a transference of rights has taken place, either on the side of the successful or on that of the unsuccessful party ? Take it that the latter dies, and the process of execution must now, it is said, be directed against some other party as his lieir. Does the decision of questions on this point belong to the court which gave judgment, or to the court of execution ? The question has recently been a good deal discussed in German law, and in one case has been answered by the Imperial court ^^ to the effect that it must be held that the German court in which the action for execution depended had the jurisdiction. These discussions, however, are concerned merely with the words of the German statute (Civilprocess- ordniong), and have no bearing on the principles of private international law, or on the philosophy of that law. In accordance with general principles, our answer must be this. The decision is in form simply a determination of a legal relation in which the original parties are concerned. It may be that the result of the decision will affect other persons also, e.g. the parties' heirs, but in the formal decision we find nothing that says so. To obtain a formal decree that will '1 (I.), 7th April 1883 (Dec. ix. Nos. 109, and Seuffert, Nos. 38, 366), and (iv.) 5th Feb. 1885(Dec.xiii. No. 88). See Wach, p. 231. Struckmann and KoGhon§ 661 (i.) oti^ji. of the Civilprocessordnung. But yet, perhaps, there may be dissentients who hold that the foreign court which gave the judgment is alone competent. See Ct. of Aix, 13th March 1879 (J. vii. p. 106). §450] OBJECTIONS TO EXECUTION. 967 affect them we must have a new judgment, i.e. a new process, in which the judgment already pronounced will, of course, hold as law that cannot be disputed against the predecessors who were parties to it, in so far as its character as a judgment is not disputed. In other words, an actio judicati proceeding upon the former judgment must be instituted by the legal lepresentative or against him, as the case may be ; and it was for this very case that almost all over Germany the practice under the common Koman law recognised such an actio!'^ The judgment, therefore, cannot be directly put in force : it requires the institution of a new action, in which the ordinary rules of jurisdiction must be applied. Thus, for instance, t\\e. forum rei dice will remain competent as it was in the original action, if real property is in question, whereas it is quite possible that an actio judicati to compel delivery of a moveable thing may have to be raised in a new foruviP In most cases execution of a judgment will take the shape of a demand for money, and in most cases application will be made for execution at the domicile of the debtor. These things being so, if we regard the action for what the German Civilprocessordnung calls the " execution judgment " as an actio judicati (see infra, § 460), we find that in the majority of cases ^* our theory will give the same result as that to which the German Imperial Court came. The transference of legal rights which has taken place can receive effect in the process, which has been instituted before the German courts to obtain an execution judgment, and the pursuer need not be relegated to any other court. The soundness of our general theory cannot be altered by the circum- stance that a statiite like the German Civilprocessordnung (| 665), where a transference of legal rights has taken place, contemplates a very simple procedure, if this transference can be at once verified by certain selected means of proof, e.g. by public documents, or if it is notorious to the court (Civilprocessordnung, § 665). If, again, the question of transference comes up, not at a time when the commission to execute the judgment can be discussed, but subsequently, when the execution has begun by poinding and diligence (see e.g. Italian Code of Procedure, § 569, 2), the point is no longer whether execution is to take place on behalf of a particular person or against a particular person. The procedure has now become real, it is dealing with things, and the question is to whom the produce of the execution is to go, or who is to bear the burden of it, or who in the further course of the execution will be entitled to exercise particular powers, and to guide it in this or that direction. All these questions, from their very '2 Sup, Ct. of App. Berlin, 11th Sept. 1868 (Seuffert, xxiv. No. 295); Sup. Ct. at Berlin, 8th June 1874 (Seuffert, xxix. No. 276). 73 See judgment of Sup. Ct. of App. at Celle, of 9th Feb. 1867 (Seuffert, xx. No. 190), on the competency of a regular actio judicati proceeding on a foreign judgment. ''* As Wach rightly remarks, it is in practice impossible to carry out completely the theory of sending the case to the foreign courts. 968 bar's international law. [§ 451 nature, must be pleaded in the court of execution, and must be regulated by its law. Method of Execution. Means available fob Execution. § 451. It is generally recognised that the method of execution, the means of compulsion available, are questions that must depend on the law of the place of execution.''^ This follows, on the one hand, from the principles already (p. 80 et seq.) laid down ; for the enforced execution represents the last ramification of the legal relation, and as such belongs not to the legal domain of the court in which judgment was given, but to that of the court which authorised execution. It also, on the other hand, is a consequence of the fact that we have here to do with the actings of the? public sovereign authority, which lays hands directly on the property of individuals, and with the restrictions under which these actings are placed in the interests of humanity and of mercy to the debtor. On this principle, if we find that the court of execution has such-and- such methods of doing execution in the general case (putting aside in the meantime special methods of execution, competent in particular actions, or competent if they are specially mentioned in the judgment), it matters not whether the court which gave judgment knows these methods or not. Thus if the creditor under the ordinary operation of the law in the State of execution has, as a consequence of judgment in his favour, a right of hypothec over the real estate of his debtor QiypotTihgiie jiidiciaire according to Code Civ. § 2123), it is immaterial whether he has such a right -by the law of the court that gave him judgment, or whether he was allowed it by the special terms of the judgment.'^® The opposite view,^^ which strangely enough was sanctioned by the Institute of International Law, would introduce a distinction, which must in many cases be unfair, between creditors on a foreign judgment and creditors on a judgment pronounced in this country. It might be that the possibility of execution would be altogether denied to the one creditor, if we shall assume that in State A, whose courts pronounced judgment, imprisonment for debt was abolished, whereas in State B, according to older Koman law, it was the most substantial form of execution.^* " Story, §§ 556 et seq. ; Wharton, § 790 ; Demangeat on Foelix, ii. pp. 239, 240 ; Haus, Dr. pr. § 156 ; Belgian statute of 26th July 1871, as to " contrainte par corps;" Weiss, p. 971 ; Brooher,iii. p. 168 ; Kesolutions of the Institute of 1878, No. 5 {Ann. 3rd and 4th year, 1. p. 98). « Weiss, p. 971. '^ " Touie/ois la contrainte par corps ne doit itre applicable nulle part, si die n'a pas iti prononcie par la tribunal qui u, rendu le jiigement itranger. L'hypotJtique judidaire n'aura lieu qioe quand elle est accordie par les lois des deur pays." '* Foote (p. 517) entirely agrees with us, with particular reference to personal imprisonment; he says : " Persons who contract engage simply to perform their promise ; and if they fail to carry out their undertaking, they must submit to the control of any law within the reach of which they happen to be when a remedy is sought." S 451] METHOD OF EXECUTION. 969 If, however, according to the law of the place of execution, a particular form of doing diligence is only recognised in the case of particular excep- tional 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 execu- tion 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.^" The exclusive application of the law of the place of execution cannot be affected by any regulation which the judgment may contain,^! and if there seems to be any doubt whether such a regulation is part of the decision on the merits, or merely regulates the method of execution, e.g. where the defender is ordered to do some particular act, or, in default, to pay a certain sum of money, then the court of execution must be guided by its own law.^^ Accordingly, a sound theory will hold that the courts of execution, so far as their own law allows it, are not incapacitated absolutely from granting a sist of execution, although an application may already have been made for that purpose to the court which gave judgment, and refused by it.^* Of course, any additions made to the judgment, which are in the view of the court of execution incompetent, will not have the effect of depriving it of validity. It will receive effect, and these additions will be left out of ^' 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 personal 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 diligence author- ised by the other State which can be required." Cf. Story. §§ 568 et seq. 8' Cf. judgment of the Supreme Court at Berlin, 10th July 1860 (Senffert, xiv. p. 282). 81 Sup. Ct. of Stuttgart, 29th March 1847 (Seuffert, iv. No. 144), with reference to the competency of attaching an alimentary fund of the debtor. 82 The decision of the Ct. of Cass, in Belgium, in the case of Bauffremont (19th January 1882, J. ix. p. 364) rests on this consideration. [The Princess de Chimay, a Belgian, who had married the Prince de Bauffremont, a Frenchman, and had thus acquired French nationality, was separated from him by decree of the French Courts. She became naturalised, after her separation, in Saxe-Altenburg, where a person separated, as she had been, from her husband, is entitled to marry again. Accordingly, she married the Prince Bibesco in Berlin. The Prince de Bauffremont obtained from the French Court a decree of nullity of this marriage, and, subsequently, an order on her to give up the children of the first marriage. Failing compli- ance with this order, the French Court imposed a, heavy fine, and it was to recover this fine that proceedings were taken in Belgium.] The execution of the judgment for pecuniary penalties was regarded as contrary to the ordre public of Belgium, and as no legitimate consequence of the refusal of the princess to give up the children. See Gianzana, iii. §231. 83 App. Ct. of Perugia, 23rd March 1877 (J. viii. p. 540). A French married woman was ordained by the Court of Bourdeaux to return to her husband, although she had pleaded the state of her health. The Italian Court, appealing to ordine publico, granted a sist of execution. Vidal, J. iv. p. 519, declares himself against it. Clunet, on the other hand (J. viii. p. 541), says it is very "delicate," and holds that in certain circumstances such a modification of the original judgment would be competent. 970 BA^S INTERNATIONAL LAW. [§ 452 account, in so far as they can be separated from the decision on the merits of the question.^* The so-called leneficium competentiae {supra, p. 612) must always be allowed to the debtor in conformity with the law of the place of execution, because it rests on grounds of mercy and humanity. It may also be allowed to him in accordance with the law, which regulates the substance of the obligation, which the judgment is meant to work out. What Couets are Courts of this Country? Consular Courts. § 452. It may at times seem doubtful whether a judgment is a foreign judgment, or a judgment of a court of this country. In a legal sense, judgments pronounced by consular courts set up by the State are judgments of courts of this country, although they actually have their seats in a foreign country .^^ On the other hand, the mixed courts recently set up in Egypt (tribwmux mixtes) ^^ are foreign courts even to those States who furnish judges to them.*^ The co-operation of a judge of this country is no security against an excess of jurisdiction which may take place in the judgment of a mixed court of the kind. Effect of the Acquisition, or Surrender, or Military Occupation OF A Territory on Judgments that have been pronounced. § 453. The question whether the union of the territory, in which the court that pronounced the original judgment had its seat, with the State in which that judgment is to be executed, does or does not turn what was a foreign judgment into a native judgment, is more difficult. In our view, the distinction between the execution of native and foreign judgments (see infra, § 454) — putting aside some more or less capricious limitations,^^ which have plainly no application to the case in hand — lies in this, that in the case of a foreign judgment the courts of execution have to enquire, _/irs^j whether the court that gave judgment had jurisdiction ; second, whether by giving execution they may not work out by force in the territory of their own State a legal relation, which it is considered unlawful to work out at all there, or at least to work out by force ; and third, in extreme cases, to see that no gross and palpable injustice has been committed in the course of the procedure that has taken place, or in the judgment itself^ ** See the draft treaty of Piggott and PaccioDi (given by Asser, BuUenlandische Vonnissen, p. 61). ^ EspersoD, J. xi. p. 261 ; Kore, Eff. § 164 ; Moreau, § 57 ; Gianzana, iii. § 37 ; Daguin, p. 157. ^ See V. Bulmerincq in HoltzendorfiTs Handbuch, iii. p. 756. The German Empire in 1875 became parties to the oonTeution. ^ See Fauchille, J. vii. p. 457 ; Moreau, § 71 ; Gianzana, iii. § 41 ; Vidal (J. xiv. p. 280) is of a different opinion. ^ There are limitations which we use to work upon the attitude of another State to us, e.g. by insisting on reciprocity. 8 ^53] TRANSFERENCE OF A PROVINCE. 97 1 either in form or in substance, which cannot be supported. Since none of these enquiries liave as yet taken place in the case we have" put, it is plain that ^ a judgment which has been pronounced in the newly acquired province must be treated as a foreign judgment. The same decison must, however, be given in the converse case in which the judgment was pronounced in the State which is acquiring the province, and is to be executed within that province. It will be so, even although the province is placed under the jurisdiction of the supreme court of the State which acquires it, and the judgment to be executed was a judgment pronounced or approved by that very supreme court. The supreme court may have given a special deliverance, upholding the juris- diction of the court that pronounced judgment, but it did so on the autho- rity and under the guidance of the laws which prevailed in its old territory, and without regard to the principles of international law. As a matter of fact, it may be perfectly true that objections to the execution of judgments pronounced by the State which is acquiring the province will have less prospect of success than in the converse case. But, for all that, it is necessary to apply for a declaration of exequatur?^ On the other hand, if the judgment was pronounced in the province which has now been acquired, and if it is desired to put it into execution there, there is no need of any exequatur.^ The enquiry into the three points stated above has already by implication taken place ; the claim in the action could not have been affirmed on any other footing. A new declarator would be meaningless. It might be that the judgment was in conflict with some statute of absolutely imperative force, published in the meantime by the annexing State. But this is a possibility which exists in every case, quite apart from any changes of territory. Thus it is not so much a question of private international law, with which we have to deal, as a general question of the extent to which valid judgments may be ^' De Rossi (p. 172) and Moreau (p. 65) in substance agree with me as regards both cases. Despagnet, § 259, holds that the exequatur is not necessary in the second case : " parce qu'il serait irrationel de demander V exequatur d, desjuges itablis par le souverain meme du pays cm Vex6cution doit avoir lieu." Fiore (J. v. p. 235, and Eff. % 154), Norsa (Rev. vi. p. 253), and the Italian judgments reported by him, take a different view. The Italian courts have, however, differed much upon the subject (J. v. ut cit.). I cannot think that the arguments adduced upon either side are conclusive. Moreau argues that in those cases the party acquires a jus quaesitum by the judgment. That is a mere petitio prindpii ; the question is whether the jus quaesitum must not give way to higher considerations, as frequently happens. Rossi takes sounder ground in pointing out that the courts in question, at the time judgment was given, were subject to a diSerent jus publicum. This argument, however, does not exhaust the question, for we can conceive a territory being annexed in which precisely the same private law and procedure law prevailed as in the annexing country. "We find the opposite view supported by the observation that "there is no longer any duality of sovereignty : " but this is a mere phrase. The adoption of the view that no exequatur is required may, it is quite plain seriously damage the private rights of the defender, e.g. if judgment has been given against him as in contvmacem by a court that had no jurisdiction. Let us put the case of a judgment depending upon an assertion of jurisdiction like that of the much criticised § 14 of the Code Civil. , ^ ,„»,,, .. ,o=x 8' To the same effect Moreau, p. 65 ; Ct. of Pans, 9th Jime 1874 (J. ii. p. 188). 972 bar's international law. [§ 453 affected by subsequent legislation within the same State. The external form of execution will require to be altered. It will run in the name of the new sovereign, in place of that of the old. Again, a judgment pronounced before the separation of the territories, by a court of the province which is now cut off, falls to be treated as a native judgment in the State from which it is cut off. At that time it had ipso jure validity and operation in all the other provinces of that State ; no change has been made in its terms since that date, and an enquiry even into the jurisdiction of the court would be altogether unprofitable. The same thing must be said, for the same reason, of a judgment which, before the surrender of the province, was pronounced in some other province of the State which is surrendering it, in a question as to the execution of the judgment within the surrendered province.®^ But the point of time at which the judgment of first instance was pronounced will not always be decisive. If an appeal depended between the parties, and the court of appeal decides the matter at issue,^^ then, in a legal point of view, the decision of the court of second instance is the only real decision in the case, although it may be disguised in the shape of an affirmation of the court of first instance or of a rejection of the appeal ; the decision of the court of first instance is thereby reduced to the level of a mere opinion. But it is otherwise if no appeal was taken, and the judgment became capable of being put into execution, by reason of the parties allowing the period for taking such an appeal to elapse. In this case the date at which the judgment of the court of first instance was pronounced, and not the date at which the time for appeal elapsed, will . regulate the matter. The fact that the judgment might have been assailed is not on the same footing as an actual af&rmance, or reversal, or modifica- tion of it. The judgment existed before the days for appeal ran out. It was not the lapse of these daj's that brought it into existence. But if we take the case of an appeal, in which the sentence of the court below is either cassed, or the appeal refused, in the former case the judgment of cassation, if pronounced after the surrender of the province, is a foreign judgment, which has no operation without an exequatur.^ If appeal is refused, the parties have no further opportunity of challenging the judgment of the court of first instance. On this ground, it must be regarded as a final and conclusive judgment pronounced in that province.®* "^ Fiore, Eff. % 162, agrees as regards both of these last cases. Moreau, pp. 69, 70. ** The authority of the Supreme Court resting, as it does, on the sovereign power of the State, ceases as regards the surrendered province and the courts that exist within it. S3 Moreau (§ 59, p. 67) proposes to examine abstractly the character of the appeal. But this would involve us in difficult enquiries, and it may happen that an appeal takes the one character or the other according to the discretion of the superior court. (Cf. e.g. § 501 of the German Cimlprocessordnung, dealing with appeals, and also § 528.) In principle, however, it is not the abstract law that will decide the point, but its concrete embodiment in the decision of the court. ^ See Moreau, ut cit. He puts the result, however, in part at least, upon the theory of droit acquis. , § 454] DIFFERENT PROVINCES IN THE SAME STATE. 973 When a part of a country is occupied by an enemy, there is no change in the sovereign right over it until peace is concluded : and the power which is in occiipation cannot alter the municipal law. We cannot therefore admit that the occupation will have any effect upon the execution of civil judgments. Judgments pronounced by the courts of the country whose troops are in occupation are foreign judgments for the territory so occupied ; and the converse also holds. Judgments, on the other hand, which are pronounced in the province so occupied are native and not foreign judgments as regards the State to which the occupied territory still dejure belongs. The converse here, again, is also true.®* The question will wear a more difficult aspect, if the power, whose troops are in occupation, forces the courts of the province to give their judgments in name of this power so in occupation. This would no doubt be a transgression of the strict limits of public law. If, however, it were done, still, so long as the usurpation confines itself to that matter of form, we should give the same answers as we have already given.^ It would put another face on things, if the power so in occupation should introduce new judges, or interfere with legislation. If the Coukt which gave Judgment is situated in anothek Part OF A Composite State. § 454. No general answer can be given to the question whether a judgment, pronounced in another province of the State, is to be regarded as a native or a foreign judgment. We must consider the actual facts and circumstances of the particular country. But at all events it would be quite unsound to say that, because two territories had the same person as sovereign, one of them could not refuse to give execution to the judgments of the other. In the times of the old French monarchy, judgments pronounced within the territory of one French Parliament did not receive execution de piano within that of another : no doubt, at a later date, judgments specially authenticated by the Eoyal seal were declared to be entitled to execution without a "pareatis" being required. Scottish and Irish judgments, and judgments pronounced in English colonies, stand by no means on the same footing in England as English judgments : Sweden and Norway, too, althoucrh governed by the same Eoyal House, look each upon the other as 95 See Moreau, § 66 ; Despagnet, § 258 ; Daguin, p. 371. 36 In general this corresponds with French doctrine, and is recommended by considerations of convenience. Moreau, § 67, thinks it is too lax, and requires a process of exequatur. At the same time, he holds that tlie conduct of the German Allied Governments, in the campaign of 1870 1871 ' was not just. But a special difficulty arose in that case from the collapse of the Government of the Emperor during the war, and it could not be required of the Germans that thev should at once recognise in all respects the Republican Government, thus newly established But there was certainly no good reason for requiring all judgments to be pronounced in the name of the German Governments. See Edg. Loning, IHe verwaltung des Oeneral-Gmivernemerds im Elsass. Strassburg 1S74, p. 121. 974 bar's international law. [§ 455 a foreign country in questions as to the execution of their judgments.^^ On the other hand, judgments pronounced in any of the Swiss cantons will receive effect all over Switzerland,®^ always, however, provided that the limits of jurisdiction prescribed in the federal constitution are not over- stepped. Judgments of the French colonies are treated in France as French judgments ; "^ it is otherwise with England and her colonies. Within the German Empire all enquiry into the jurisdiction of the court that pronounced judgment is excluded. It is supposed that the theoretical ascertainment of the jurisdiction by the rules of the Civilprocessordnung, which are common to the whole Empire, is sufficient. But they can never, of course, exclude the possibility of there being an excess of jurisdiction in consequence either of an error in law or of an error in fact. But, since by far the most important factor in the matter of execution is a close and complete scrutiny of the jurisdiction of the court which pronounced judgment, in logic the important point must be whether the courts of the different parts of a State or of a federation of States are subordinated to one and the same Supreme Court, which has power to enquire into their jurisdiction in all cases. If this is the case, then the party, by taking an appeal against the judgment of the court of first instance, can raise the question of jurisdiction before the very court before which it would be raised if the plea of " no jurisdiction " were taken in answer to a demand for exequatur. This purely logical treatment of the matter is generally modified by usage and by positive laWj^"" and the question is not one of such vital importance, if, as is the case in England and in the United States, the execution of foreign judgments is in other respects made independent of arbitrary conditions. The Condition of Eecipkocity: Commentary. § 455. One such special condition for the execution of foreign judgments is that there shall be reciprocity. Thus in particular § 661 (5) of the German Civilprocessordnung refuses execution "unless reciprocity is guaranteed." loi In fact, great weight is generally laid in international matters on the rule of reciprocity, which seems simply to be an equitable rule. We must not, however, stretch it too far, especially since the interests of private persons will be directly affected by the attitude of the ^ See Olivecrona. J. yii. p. 83. 88 By § 61 of the Swiss Federal Constitution. See Eoguin, J. x. p. 113 • Muheim, p. 304. 89 Moreau, § 54. ""> E.g. Austrian judgments, as already noticed, are executed in Hungary, and vice versa, over property lying in the State where execution is to be done, without any conditions at all. ^"1 Both in Austria and Hungary great weight is laid on this point. V Puttlingen p. 473. § 455] RECIPROCITY AS A CONDITION. 975 State, and as it may well be that our State will severely damage itself and its subjects if it refuses to apply a principle which is sound in itself, because another State does not recognise that principle in its dealings with our citizens. If we cannot confide in the administration of justice in other States, then, as Asser has noticed (Eev. i. p. 95), the system of reciprocity in the execution of judgments gives us no better guarantee on the matter. The unjust or erroneous judgments of the foreign State will not be made one whit more just or less mischievous to our citizens, because that State puts our far superior judgments into execution.^''^ It is much more logical, if we are to impose restrictions upon execution, and if we cherish distrust of tlae judicial arrangements of foreign States, to require, as Moreau does <§ 236), a treaty with the foreign State. The Government, or, if the case allows it, the representatives of the people, can then examine the guarantees for the administration of justice which exist in the other State. On the other hand, there is no logic in saying, " We distrust the foreign judgment, and accordingly we shall refuse to give it an exequatur, but, at the same time, we will trust any one who will trust our judicial system." Besides, there may be much dispute as to to the application of this condition of reciprocity.^"^ It is enough that the foreign State will execute some judgments of our courts ? Or is it necessary that it should execute them in all cases in which our courts would execute judgments pronounced in that other State ? Or, lastly, is it enough that, in the same circumstances as exist in the particular case, the foreign State would give execution ? If we assume the first of these suggestions, we should very soon find that our State had to a certain extent debased itself, if the foreign State as a matter of fact should give execution to foreign decrees in a very few cases only, and if, for instance, it should give its own courts a very wide inter- national jurisdiction, while it only recognises the jurisdiction of foreign courts within a very limited area. As regards the second suggested system, it will lead to a denial of execution in the vast majority of cases, particularly if codes and statutes continue to mix up, as they are so apt to do, questions of international with questions of intra-territorial jurisdiction. This would be the result, because execution would have to be refused wherever the regulations as to jurisdiction in the two systems of law concerned did not accurately correspond. The third suggested system is, comparatively speaking, the most correct. It labours, however, under the "reat evil, that in each particular case uncertainty may easily arise, •o lo* still this is the system of the German Civilprocessordn. Where reciprocity is ensured it does not allow execution to be refused, even when there is a palpable and gross violation of general principles of law, e.g. it will force the German judge to execute a judgment against a German subject, if the case be so, although that judgment was obtained by bribery, or although to some extent it wilfully put the German subject at a disadvantage. The German subject will have no remedy save recourse to the foreign courts or to diplomatic representations. "3 We cannot, of course, reciuire the foreign State to have a process of execution which coincides with ours. For that end we should require to have an identity of procedure, and perhaps also of judicial system. Wach, i. p. 235. 976 bar's international law. [§ 455 especially if, as necessarily must happen, we have to enquire into the actual way in which cases are treated in practice in the foreign country, as well as into their enactments on the subject. One who is about to sue in the courts of the one country will, as a rule, not know whether he can obtain any substantial success, after he has obtained judgment, within the territory of the other State."* But, in view of the variety in rules of procedure and in the theories on the subject, it is often a question of the greatest doubt whether in the particular case a foreign judgment would be recognised as such by the foreign country. Suppose, for instance, that in one State, say England, there is not so much reverence for the formal validity of foreign judgments as to exclude all recourse against judgments that have been fraudulently obtained — although that recourse is only employed in the most extreme cases — and take it that, as in Germany, the other country allows no discussion of any such point in its courts, then in strictness we have a want of reciprocity on the side of England, and consequently must refuse execution. We may see, from an interesting judgment of the German Imperial Gourt (iii.) of 19th May 1882, which is stated with the greatest elaboration, in what enquiries this question of reciprocity may land us,^"^ and at the '"* The controversies and doubts which exist as to the provision of the German Civil- vrocessordn. confirm what is stated in the text. It is said, for instance, by Struckmann and Koch on § 661, No. 10 : " The idea of reciprocity involves that the conditions under which the foreign court will execute German judgments must be the same as the German conditions, or at least not more strict. For instance, the fact that a foreign State generally executes German judgments, will not avail to obtain the execution of a foreign judgment where the jurisdiction of the court was put upon the forum contractus, if the foreign State does not execute German -decrees based on this forum. In every case, we must enquire whether a foreign State will execute a German judgment pronounced under the like conditions." Wach, i. pp. 235, 236, thinks that there is no want of reciprocity, unless the foreign State recognises the jurisdiction in question for itself, but will not allow it to our courts or to those of any other country. "5 Dec. vii. No. 124, p. 406. In the judgment, at its close, it is urged against the execution of English decrees in the German Empire, that in England decisions of foreign and therefore German — courts on points of prescription are not recognised, because, according to English theories of law, prescription is purely a matter of procedure. The court below, that of Oldenburg, proceeded on the view that the only question was (the question of jurisdiction being disposed of by the voluntary submission of the defender to the English court) whether the defender would in England, in the execution of a foreign judgment, have been allowed to state objections of the same character as he now urged before the German court. The Imperial court reversed this determination, and affirmed that no execution could be allowed to any country in which the legality of a German decision could in any other case be called in question, because in § 661 (i.) of the German CivUprocessordn. it is expressly said, " the judgment of exequatur must be pronounced without examination into the legality of the original judgment." Piggott, in his 2nd edition (pp. 429, 430), gives a commentary on this important decision, which he translates in full (p. 470). He says that he cannot boncur in the decision of the court of Oldenburg, because it made the law of Germany altogether dependent on the law of the forei It seems from Francke, p. 77 ; Struckmann and Koch, note 3 on § 661 ; Seuffert, note 2; T. Wilmowski-Levy on § 661, that the inference is rested on the expression, that a'judg- § *^'^] SYSTEM OF REVISION. 997 Ant Enquiry into the Merits' irreconcilable with the Recognition AND Execution of the Judgment. System of Revision on the Merits. _ § 467. We must regard it as incompatible with the recognition of res judicata, and with the execution of foreign judgments, that there should be any enquiry into what has already been decided in the judgment of the court in which the suit originally depended, whether it was so expressly decided, or merely by implication, some part of the pursuer's demand being refused by ignoring a point which must necessarily have been presented for consideration. A judge, who revises a judgment and adopts modifications of it according to circumstances, or who finds that on the merits it is ill founded, in reality is pronouncing a new judgment. The practical effect of such a revision on the merits will be that the judgment of the foreign court will be more often recognised than it will be under the principle, by which the parties have to discuss the whole matter anew. There is, too, this further difference between a revision and a completely new discussion of the subject, that, in the former case, as Moreau (§ 110) points out, the parties must confine their application to the limits of the conclusion of their original action,i^i although it is within the power of the court to arrive at a different result in disposing of these conclusions. It must always, too, be the case, if the system of merely revising and then executing a foreign judgment is to be brought into play, that the court from which the judgment proceeded should be recognised as having jurisdiction according to international law. A judgment pronounced by a court having no jurisdiction would simply leave it open to follow out entirely anew the original claim : that does not necessarily imply that the new process should be before the courts of the country in which there happen to be assets open to diligence. The system of revision, which may be described as that most commonly in use, is liable, besides, to be to some extent indefinite. At times parties may find it more for their interest to begin proceedings de twvo rather than to proceed under these indefinite restrictions. But, even although the foreign judgment may not be recognised as the basis for actual execution in another State, it may be regarded as 'prima nient of exequatur is not to be pronounced, if, etc., etc. If, however, a statute were to say that a defender is not to have decree given against him, unless the pursuer proves his grounds of action, could it be inferred that this proof was not intended to fall under the ordinary rules of proof and of admissions in civil actions ? The explanation of the whole of the some- what absurd idea is that the legislator first proclaims the principle of the recognition of foreign judgments without examination as a great achievement, and then, with much anxiety, takes back part of his concession. There is no want of such instances in German law, especially where, as is often the case, you have some compromise between the factors on either side, some transaction of their differences. See e.g. the ideas expressed in § 11 of the preliminary part of the OerieUaverfouisungsgesetz, where the beginning of (2) is directly contradictory of (1). "' This application of the principle of concession or aidmission is, however, sound. 998 BAlis INTERNATIONAL LAW. [§ 468 facie proof of a legal fact,i«2 under this limitation, as I think, that the court in which it was pronounced had jurisdiction, or at least maj prima, facie be assumed to have had it. Thus, for instance, an arrestment in security may proceed on a foreign judgment, and a security may be allowed to be provisionally recorded, although it has been constituted by such a foreign decree. That is held to be the law in France, in spite of the incompetency of putting foreign judgments into execution there. Of course, a foreign judgment, which might be put into force under the law of the court which pronounced it, must be in that position, i.e. must be capable of execution, before an exequatur can be given.^^^ Awards by Arbiteks in a Foreign Country. § 468. Awards by arbiters pronounced upon contracts of submission under the Eoman law are simply contracts.^^* Parties who agree to suck an arbitration, make a bargain that they will recognise the sentence of the appointed arbiter or arbiters. There is this further condition in the contract, that the award shall be pronounced by the individual named, or by the majority of the individuals named. We have nothing to do in this contract with direct execution : that is a matter for which application must be made to the competent court, while, on the other hand, the deliverance of the arbiters will always afford an exceptio pacti. But, supposing that some code of procedure gives direct execution to such a sentence under certain conditions, e.g. if all the necessary proof is furnished by documents publicly attested, we should still have to consider the question, whether a decree for execution could be pronounced iipon a contract embodied in documents attested by the public authorities of some foreign country. It would be altogether unscientific to put deliverances of this kind, which are based simply and solely on a contract between two parties oii a level as regards international relations, with judgments by a judge. We need not, therefore, discuss whether we should give or refuse recognition and execution to such deliverances under the conditions under which we should do the one or the other to judicial sentences;^^^ It is, too, immaterial whether the deliverance has or has not obtained an executorial power in the foreign country : that will not make it a judicial decree, and the declarator in the foreign country that it may be put in force has no meaning within our territory.^^^ But, if the law which is applicable to the "2 See Fiore (J. v. p. 241) ; Ct. of Turin, 20tli March 1876 (J. vi. p. 86) ; Moreau, § 119; Clunet (J. ii. p. 305, and vi. p. 86). There seems to be some dispute in France as to the registration of securities. See Moreau, § 120. 183 Dubois, Rev. viiii p. 494 ; Trib. Civ. Antwerp, 31st Oct. 1873 ; Trib. Civ. Lille, 4th June 1885 (J. xii. p. 560), and the French judgment reported there. Gerbaut, § 36. '«* See Foelix, ii. § 424. "= German Imp. Ct. (i.), 5th Nov. 1881 ;-Dec. v. No. 114 ; Struckmann and Koch on § 868, note 1. '^ So the decision cited in the immediately preceding note. §469] AWARDS BY ARBITERS. 999 deliverance pronounces that it cannot itself be put into execution, but must be followed out by an action at law, as was the case in Eoman law, then all that can be done with the award in another State is to sue upon It : execution cannot follow on it directly. The opposite view would give the award a meaning which it does not possess according to the law which governs \t}^ Accordingly, it is not quite accurate to say, as Francke says m general terms (p. 29), that foreign awards may be set on the same footing as awards in our own country. But it is a different thing if the court in which an action is pending leaves certain questions, emerging in the course of the process, to be determined by arbiters.i^s or even perhaps refers the final decision to arbiters to whose award the parties must submit.i«» In such cases, the deliverance must rank in international matters as a judicial deliverance : for in international matters the only possible question is whether the authority of the deliverance rests upon the compulsitor of the State or on the free will of the parties. It is just as much a matter of indifference to foreign States as any other point in the internal constitution of the State can be, whether the State appoints permanent judges, or jurymen, or persons in the selection of whom the parties may have a voice, to pro- nounce decisions that are to be invested with its sovereign authority. § 469. Special difficulties may be raised by mongrel varieties of arbitration,^^* such as are created by the provisions of the German Civil- 'processordnung (§§ 851-872). According to these enactments, on the one hand, judicial authority may step in to supplement the arbiter's powers, and, on the other hand, the arbiter is bound to observe certain rules of procedure, and if he shall transgress these rules, a special form of action is laid down for setting aside the decree-arbitral. In such cases, the circumstance that must decide is, whether as a matter of fact"^ the foreign ^'^ To this extent we agree with Wach, pp. 248, 249. There is no object in associating with the foreign laudum effects that are strange to it under the law in accordance with which it was pronounced. The nationality of the parties and of the umpire will, as a rule, be of no consequence : the parties will, as a rule, be desirous of submitting themselves to the law of the place in which the court of arbitration has its seat. But it may be otherwise, if, e.g. all the parties are of the same nationality. Wach speaks too generally on this point. [It is quite competent for a foreigner to act as an arbiter ; lie is truly a mandatary (Albertoli v. Gonthier, 15th March 1875 ; Ct. of Chair.bery, J. iii. p. 101).] '** This may happen in English actions of count and reckoning. See Schuster, p. 180. '^" See §§ 51, 63, of the Code de Commerce on arbitrage forei in disputes on trading company questions. These articles were, however, repealed by the French law of 17th July 1856. "' The important points of difference insisted on here are frequently overlooked. The German literature on this subject is permeated by this mistake. Even Francke (p. 28) and Wach (p. 248) forget that the arbitration procedure organised by the German Civilprocessord- nung need not by any means be a private procedure. (See, too, the mistaken grounds of judgment assigned by the Sup. Ct. of Comm., 1st Sept. 1873 (Dec. x. p. 392), and a like error in a judg- ment of theTrib. Civ. Antwerp, 27th June 1873, reported by Dubois, Rev. viii. p. 490.) "' The bare possibility of the interposition of the sovereign authority cannot be taken into account. Even in States where the common Roman law prevails, and where, therefore, the judicial authority has nothing to do with the nomination of the arbiters, and the arbiters are not tied down to any special rules of procedure, arbiters may of their own accord respect looo bar's international law. [§ 469 judicial authority has been interponed : if it has, then all that has followed must be regarded as a consequence of that authoritative interposition of the sovereign authority. ^^^ The decree-arbitral in such a case can no longer rank as a private contract, but must in reason be dealt with as if it were the sentence of a judge. Whether special provisions in a statute or in a treaty have the same effect on the decree is another question, to which no general answer can be given. As, however, it is not the lex fori that determines in a case of a private contract whether or not it can be challenged, but tlie law to which the contract is otherwise subject ; so a decree-arbitral which has to be carried into a foreign country for execution must be subject, in all questions as to the possibility of challenging its validity, to the law of the country of the arbitration.^''^ If by that law some particular formalities and methods are prescribed for setting it aside, e.g. if a particular court must be approached for that purpose, then these formalities and methods must be observed : they are part of the contract stipulations. Accordingly, so soon as the person against whom diligence is to be done pleads that the decree has no binding effect, the court to which application for execution has been made must await the decision of the court specially appointed to decide such questions, and must necessarily appoint a time within which the action of reduction must be raised, if, indeed, the court of arbitration has not appointed a time for itself. Again, as Lammasch (p. 441) points out, execution cannot be refused on the ground that the law of the place of execution would not permit the legal question in dispute to be referred to the determination of arbiters : it is not the law of the court of arbitration, but the law that regulates the substance of the legal question in dispute, that must determine that question. such rules, and will often consider themselves bound in conscience to follow them. See Fiore Eff. § 214. He does not, indeed, formulate the principle with sufficient sharpness, but remarks that the decree-arbitral can no longer be treated as a private contract if one of the arbiters has been named by a public authority. See Fcelix, ii. § 425 ; Fusinato, p. 128. ^'^ If, however, the interposition of a foreign court is confined to a declaration that the decree is to be put into execution, the effect of that upon the treatment which is to be accorded to the decree-arbitral in another country is simply that that declaration will be taken as a, satisfactory proof that execution can competently be asked on the strength of the decree- arbitral. Asser (p. 47) does not quite agree with us. ^" Wach (p. 250) takes a different view, because a foreign decree-arbitral should have no greater force than a decree-arbitral of this country. There is a confusion of ideas here. The effect of the decree-arbitral is the execution that is done upon it, and that, of course, is subject exclusively to the law of the State where execution takes place. But when the decree is challenged, the question is as to the conditions on which the decree rests. If Wach were risht, then the question, under what conditions a foreign judicial sentence may be challenged, would have to be determined by the law of this country. An example will show at once the error of Wach's theory. Under § 867 (4) and (5) of the German Civilprocessordnung, the decree-arbitral may be challenged if the party has not been heard as the law prescribes, or if the decree has no reasons appended to it. But an agreement of parties may bar these grounds of challenge. What is to be said, then, if the law of the foreign decree lays no such duties on the arbiter ? Is the decree not to receive effect in this country ? Wach himself says (p. 249), " It is impossible to apply our law to the foreign laudvm." And yet he proposes that § 867 shall apply. In the same way as Wach, Ct. of Montpellier, 21st Sept. 1883 (J. xi. p. 70). §471] VOLUNTARY JURISDICTION. lOOI § 470. If we adopt the principle that the execution of foreign judg- ments should not be made dependent on any capricious conditions, such as reciprocity, then it is obvious that all foreign decrees-arbitral must be put in force, to which the authority of the State has been interponed, in so far as the authority of the State was competently interponed, and the contract for arbitration was valid in itself. If, on the other hand, the execution of foreign judgments is, as a matter of principle and in the absence of treaties, refused, then logic demands that we should also refuse to execute foreign decrees-arbitral. If we distrust foreign judicial authority generally, we cannot put any confidence in It when it mixes itself up with arbitration procedure. Execution can only be given if, as a matter of fact, the foreign decree has come into existence without any interference from public authorities. If we have to adjust a treaty, then we may without any risk allow the decree pronounced within the State which takes part in that treaty to be executed. Voluntary submission by the parties must, in all matters which they are free to deal with as they please, give at least as good a guarantee as is to be found in a judicial sentence pronounced by a court in the proper exercise of its jurisdiction. As a rule, treaties make no mention of decrees- arbitral. They are, however, mentioned in the Austro-Servian treaty, as Lammasch (p. 440) points out, and with the good practical result of anticipating and disposing of some doubtful questions. The question presents most difficulty when judicial sentences are only executed on condition of reciprocity : but, even in this case, we must allow decrees-arbitral to be put in force. The ground on which we support the extension of the treaty provisions to the case of decrees-arbitral is decisive in this case also.^^* ExECUTiox OF Judgments pronounced in Mattees of Voluntaky Jurisdiction. § 471. In any case, we shall be very safe in allowing execution to proceed upon foreign instruments connected with matters of voluntary jurisdiction. However little reliance we may place on the judgment of a foreign judge, we cannot assume that instruments issued in matters of voluntary jurisdiction by the courts of any civilised country are false or grossly misrepresent facts, especially as parties can generally seek out for themselves the tribunals most suitable for the case that has to be dealt '"* Wach refuses to admit the analogy between judicial sentences and decrees-arbitral, because such sentences and decrees pronounced within this country are disposed of on different principles. I cannot accept this conclusion. Because two persons do not play the same part in a house, it does not by any means follow that they may not fairly claim equal treatment from persons outside. On this subject, Wach readies results very different from mine, because he does not advert to the distinction between the purely private arbitration and that on which the foreign judicial authority has operated. 1002 BAl^S INTERNATIONAL LAW. [§ 472 with. Such false statements as that persons, who in truth did not appear at all, are represented as taking part in the transaction, are happily rare. Accordingly, all that we require is that the rules of the foreign law must allow immediate execution upon the instrument ; while, on the other hand, the instrument must 'satisfy the conditions required by the law of the country in which execution is to be done. We need not insist on this latter point, if the procedure_ of the court ordains that there shall be a contentious procedure and a formal judgment, in order to make such instruments capable of being put into execution ; in that case the foreign instrument is invested with all the force of an instrument belonging to this country. Modern treaties concluded by the Kingdom of Italy have provided specially for the execution of notarial instruments or of the atti autentici of foreign States in general.^^^ On the other hand, there is no mention of such instruments in the Franco-Swiss treaty (Curti, p. 154). Whether the omission to mention such instruments in a treaty which ensures the execution of foreign judgments implies that these instruments are not to receive execution, or, on the contrary, that they are to be regarded as not requiring separate mention in the treaty, cannot be absolutely decided. It will be necessary in each case to have regard to the previous practice of the States in question. In doubt, one would be inclined to adopt the latter and more reasonable alternative. Eeview oh the Peinciples adopted in a number of Leading States. § 472. Although the plan of this work does not as a rule admit of statistical comparisons of the systems of law prevailing in different countries, it will be useful, in view of the great diversity which we find in connection with the execution of foreign judgments, to give a sketch of the works from which one may gather what the attitude of different States and codes of law on this matter is. (1.) Argentine Eepublic. See Uaireaux (J. xiii. p. 417) and Palomeque (J. xiv. pp. 539-558). The principles of the statute of 1878 are : execution is given, with certain exceptions, which are perhaps not very clearly defined, e.g. decrees in absence, and in the case of obligations which are invalid by Argentine law. (2.) Austria. Vesque v. Piittlingen, p. 473, Monger, i. p. 174. Execution on condition of reciprocity. Decree of the court, 18th May 1872 and 15th February 1805. (3.) Belgium. Code of 25th March 1876. Humblet (J. iv. p. 339) ; also J. ix. p. 367, and Moreau, p. 195. Execution is only given where it is so provided by treaty ; otherwise there is revision of the merits of the judgment. (4.) Brazil. Code of Civil Procedure of 1878, art. 652, and statute of See Lanimasch, pp. 441, 442. § "^72] PRACTICE OF DIFFERENT STATES. IOO3 27th July 1878. See Constant, p. 22; Moreau, p. 198. Exequatur is given on condition of reciprocity. (5.) Bulgaria. ExeqvMtur is given to a large extent, without enquiry into the merits of the judgment, in accordance with a resolution of the Supreme Court at Sofia. See article by the Bulgarian Minister of Justice (J. xiii. p. 570). (6.) Denmark. See Goos (J. vii. p. 368). No special statutory regulation, but apparently recognition of foreign judgments, if the foreign court has jurisdiction. 0-) Egypt. See Vidal Bey (J. xiv. p. 224). Exequatur on condition of reciprocity. (8.) In France there is no execution without a review of the merits of the judgment, except where a treaty provides otherwise. The French treaties are printed by Durand, p. 462. (9.) Germany. Civilprocessordn. Exequatur is given without review of the judgment on the merits, unless the courts of the foreign country in question do not show reciprocity. See Wach, i. pp. 239-246. (10.) Great Britain. We have shown in detail in the course of the discussion what is required here. The result [so far as England and Ireland are concerned, and probably in Scotland also] is that execution is given without any enquiry into the merits (unless in exceptional cases a plea of fraud is urged against the judgment), and without reciprocity being required. This doctrine is established by decisions only, and accordingly is now and again made matter of dispute in some particulars. See Piggott, pp. 377-551, and supra, p. 902 note. (11.) Greece. See Saripolos, J. vii. p. 173. The provisions of the Code of Procedure, unless it is otherwise provided by treaty, take a distinction between the case where one of the parties is a Greek, and where both are foreigners. In the former case, there is no execution without a review of the merits; in the latter case, execution is given without any such review, and without reciprocity being required. (12.) Hungary. In accordance with the statute of 1881, execution is given on condition of reciprocity. (13.) Italy. Execution according to art. 941 of the Code of Procedure, without reciprocity being required. (14.) The Netherlands. No execution without enquiry into the merits of the judgment, except in question of salvage and average. Katz in Bechtsgeleerd Mag. i. p. 498 ; Hingst, Eev. xiv. p. 425 ; Constant, p. 28 ; Asser-Kivier, § 89, note 3 ; Code of Procedure of 1838, ii. 1, art. 431. (15.) Peru. See Pradier-Eod^r^, J. vi. p. 266 ; Constant, p. 30. No exequatur: foreign judgment is treated as evidence. (16.) Portugal. Moreau, p. 218 ; Piggott, p. 489 ; Daguin, p. 337. The Code of Procedure of 1876 only requires review of the merits, if the judgment has gone against a Portuguese subject, and with reference to the question whether the rules of Portuguese law, in accordance with which the matter should have been decided, have been transgressed. 1004 bar's internatjonal law. [§ 472 (17.) Eoumania. Piggott, p. 495 ; Daguin, p. 323. Exequatur on condition of reciprocity. (18.) Eussia:— (a.) Baltic Provinces. Exequatur on the principles of the German Civil- processordn. The question is not, however, altogether beyond doubt. See Engelmann, Die Zwangsvollstreckung auswartiger richterliches Urtheile in Rmsland, Dorpat 1884, p. 47 (translated in J. xi. p. 113), and further sketches in Wach, i. p. 245, especially a deliverance of the Prussian Ministry of Justice in the Justizministerialhlatt of 1883, p. 192, vs'hich differs from Engelmann's view. (6.) In Finland, according to the Prussian official publication just cited, there is no exequatur. (c.) For the rest of the Empire, the effect of the Code of Procedure of 1864 is doubtful. V. Martens (J. v. p. 139) asserts that there is exequatur, and adheres to this position (Volkerr. ii. p. 351) in spite of Engelmann's allegations to the contrary (ut cit. sup. and translated, in part at least, in J. xi. p. 113), and a more recent judgment of the Eussian senate. But the negative view is probably the correct view (see Wach's exposition, p. 245j. The same code of procedure has been recognised since 1876 in Eussian Poland. ("See, too, Flamm, J. xi. p. 494, and the judgment of the Court of Warsaw of 11th June 1884 there referred to ; according to it, eaxquatur is refused unless there be a treaty.) (19.) In Servia there are no rules of practice, and no statutes to regulate civil judgments pronounced in foreign courts. Servia has, however, con- cluded treaties on this subject with Italy and Austria. Paulowitsch, J. xi. p. 150. (20.) Spain gives execution on condition of reciprocity, by her Code of Procedure of 1881, § 951. Silvela, J. viii. p. 20; Daguin, p. 317. (21.) Sweden and Norway do not give execution (Olivecrona, J. vi. p. 83). Danish judgments, however, are executed in Sweden in conformity with a statute of 1861, resting on a treaty. (22.) In Switzerland, judgments of the cantonal courts are executed everywhere under the necessary conditions. In many cantons foreign judgments are executed; in many others the French rules prevail; in other cantons, again, a political official decides whether execution shall be given. Eoguin, J. x. p. 113 ; Daguin, p. 361. (23.) In the United States, the principles of English law are in the main recognised. Wharton, §§ 646 et seq. We may also refer to an interesting paper by Salem in J. xv. pp. 603-619, entitled " De V execution des jugements en Turquie." Judgments which have been pronounced in the country to which the unsuccessful party belongs require no exequatur in Turkey. They may be executed at once, because the matter of execution is one that is in the hands of the consular court of the country to which the unsuccessful party belongs. A foreign judgment, which should give or refuse to give a party a right over landed estate in Turkey, would have absolutely no effect; and if it were necessary. § '^73] j^js ALIBI PENDENS. IOO5 to execute a foreign judgment by selling real property, the aid of the Turkish ofBcials would to a certain extent need to be invoked, but they would not investigate the merits of the judgment pronounced in the petitory action. If the unsuccessful party does not belong to the State whose courts have pronounced the judgment in question, then the officials of the State to which he does belong must declare the judgment to be capable of execution ; whether his consular court has jurisdiction to do so, is a question for the law of the country to which it belongs. Judgments against Turkish subjects will not receive an exequatur, and judgments in their favour will only do so if the other party belongs to the country, the courts of which have pronounced the judgment in question. The Plea of Lis alibi pendens where the othek Action is in a FoKEiGN Country. § 473. The common law allows a defender to plead lis alibi jpende7is against a new demand in a different court upon the same grounds. It is debated whether and under what conditions that plea is available in the case of a process in a foreign court.^ The answer, as Wach (p. 246) has recently put it, must depend upon the recognition which may be accorded to the foreign process ; that, again, will be determined by the recognition that may be given to its judgment ; or, to speak more exactly — since a recollection of the capricious provisions of the statute law of different States forces us to take a distinction between a recognition of the res judicata and the execution of the judgment — it will be determined according as execution is given or refused by our country.^ In cases in which the pursuer cannot reach any substantial result after he has obtained judgment abroad, i.e. cannot put it in force, but will be required to bring a new action, or in cases in which he must be content with an arbitrary revision of the foreign judgment, he cannot in fairness be denied the right, in order to obtain speedy satisfaction, of raising his new action forthwith, since he cannot in any event escape a double trial of his claim. That the same matter should be under discussion simultaneously in two States, or possibly even in three, no doubt puts the defender in an 1 Among older authors who are in favour of the recognition of the dependence of an action before a foreign court, see Martens, § 94 ; Kliiher, § 59 ; Feuerbach, Themis, p. 318 (Dralt of a State treaty, § 21): Foelix, i. §§ 181, 182, pp. 366 et seq., and the extract which he gives from a judgment of the French Ct. of Cassation. ^ Menger (p. 166) goes too far in his recognition of the lis alibi. He thinks it makes no difference whether we execute foreign judgments in this country or not, since it is always possible that the defender may not challenge more than one judgment on the dieputed point, and may obey one judgment without the necessity of diligence being done. This possibility gives the pursuer no security that there will be a voluntary performance of what he requires. The defender would require first to bind himself by some legal obligation to obey the first judgment, and no obligation would be of any value for the territory of our State, unless by some voluntary submission we had an assurance that execution might take place there. We thus come back again to what we have demanded as essential in the text. ioo6 bar's international law. [§ 473 unpleasant position ; but this is the inevitable consequence of a wilful refusal to recognise or to execute foreign judgments.^ Here, as in many- other instances, we see the injustice and inconvenience of this maxim to the subjects of the States which act so exclusively, or, as they call it, nationally. If we were to recognise the exceptio litis pendentis in cases where there was no execution of foreign judgments allowed, that would very easily result in a simple denial of justice to the pursuer. He would in all probability obtain no decree on which he could do execution until the debtor had had ample time to remove all his assets into another State, where the same game would have to be played all over again. But it is a condition of the execution of foreign judgments that the foreign court should have jurisdiction, as that is understood in international law. Jurisdiction may be given by implied prorogation in cases in which the subject matter is one that is at the free disposal of the parties.* The pursuer, therefore, may always, looking to that condition of affairs, be met by the exceptio litis pendentis, if he has raised action in a foreign court, and, the defender having failed to plead want of jurisdiction, the court has entered upon the materialia causce. If, however, the defender takes a plea of no jurisdiction, and this is repelled by the foreign court, that would not be enough to give the defender the right to plead lis alibi pendens in our courts, since the foreign judgment or jurisdiction cannot in any way affect the jurisdiction of our courts. But the defender may acquire a title to plead lis alibi, if he recognises in a legal way the competency of the foreign court. These propositions have been more and more recognised of late, even in the law of England and of the United States.^ It is, however, easily understood that, as the exceptio litis pendentis is in any case only admitted in England and the United States subject to the discretion of the judge, or the pursuer has this privilege only, that he may choose between the ' Moreau (§ 115) to the same eftect. * If, following the new German doctrine, we hold that the recognition and execution of foreign judgments can never take place where these judgments proceed upon a voluntary sub- jection of the parties, we see at once to what serious disadvantages this strange theoiy exposes German defenders as regards the exceptio litis pendentis. Even Moreau (§ 115) recogni.ses the plea, although there may be no treaty, when the pursuer has himself invoked the foreign court. French Ct. of Cass. 14th February 1882 (J. ix. p. 530). Frenchmen, who have volun- tarily raised action before a foreign court, are bound by the contrat judiciaire, and are barred from raising action in the French courts. » See Wharton, §§ 783 et seq. and infra, note, p. 1008. Piggott, p. 69. English practice has allowed the English suit to proceed on condition that the foreign process is abandoned. This It does on ecjuitable grounds, if the continuation of the English process seems, with a view to execution, to be simpler than a continuation of the foreign process, which was first in the field, would be. This power, which no German judge has, is one that is recommended by the conveniences of international intercourse and commerce, if there are very serious formal difficulties to be encountered before execution can be obtained upon the foreign judgment. Westlake-Holtzendorff', §§ 319, 320, adheres too closely on this point to the older decisions, which refused to admit the exceptio litis pendentis in the case of a foreign process. Foote alone (p. 680) holds that it is right to force the pursuer to choose between the English and the foreign action. » § 473] us ALIBI PENDENS. IOO7 court to which he has first appealed and the other, these same principles are applied in the case of a lis which is dependent in a foreign court. The grounds on which the recognition of the plea of lis alibi pendens has been opposed in the case of a foreign action, within the limits we have indicated, are entirely unsatisfactory. It is perfectly true to say that while foreign judgments can be recognised and executed here, a foreign process cannot ; and that even foreign judgments require for their execu- tion a special declarator of exequatur which can only be obtained in our courts, and cannot be obtained at all until the process is decided and over. But the plea of lis alibi pendens is certainly not to be placed on the same footing as the execution of foreign judgments. We have nothing to do here with the direct compulsitors of the law : the object is, on ■"rounds of fairness, to protect the defender against a multiplication of actions. Accordingly, the non-recognition of the lis alibi pendens has no sort of connection with the maintenance of the sovereign rights of the State : this is in the present connection merely a vague phrase. The maintenance of an exclusive jurisdiction in our own courts is the only thinty that will justify a refusal to give effect to the plea of lis alibi pendens : in so far as the foreign court has a concurrent jurisdiction, the choice of the pursuer, and the precedence in time of the one or the other action, must decide the question just as in a question between two courts, both belouTinw to this country. This last consideration has an important bearin" on a case in which a defender who is domiciled in this country could make the action an action in the courts of this country by raising it here as pursuer. Again, it is a mistake to reject the exceptio litis pendentis, because it is a plea which rests upon a delimitation of jurisdic- tion to be made by the court itself, while no such delimitation can affect the courts of a foreign country.s It is peculiar that on these and similar grounds some French lawyers ^ still obstinately refuse to recognise the plea, and that even in Italy there is still some hesitation on the point.^ Lastly, it would be the height of absurdity to make the recognition of lis alibi pendens dependent on reciprocity, ie. dependent on the law of the State in which the other process is going on, recognising the plea as we do The first effect of this demand for reciprocity would be to damage our own subjects who were defenders in this country. Again, if we may assume that every rational code of procedure will protect in one way or .f vX ^9th L; 1881 Ti ' p. 2)^; the 'sa.e 'ct. 15th Jan. 1883 (.. .i. p. 65). See ■^Tk ' I 'uZSt^c'^''^-^ Jaup-s 0.rr..ni., vol. ii. Giessen 1809, p 244) refused to 8 K. S. Zach^"a (1"/;'^ ^ inyooatioTi and the recognition of a foreign court xecogn,se a Usm "t^MaYZnt is riven, one-sided and revocable acts that any one may do .re simply, ^^^^ fi/'^^^.^f "^'^sibl to iind in the institution of the action an entirely ^IfftXigS^ f'r ^hi; is implied in the concluding act of it. ioo8 bar's international law. [note ZZ another the defender against double pursuit on the same grounds, this protection, as the law of England shows, need not absolutely take the form of a recognition of the exceptio litis pendentis, and a consequent dis- missal of the second action. The precise course to be taken is a matter that the law of each court must determine according to its own rules of procedure.' We can, however, pay no heed to the plea that the question is awaiting decision in one of the courts of our country, if that plea is urged as a reason for refusing exequatur to a foreign judgment, if the foreign court has jurisdiction in a sense known to international law.^" The decision of a court that has such jurisdiction has effect all over the world, and therefore furnishes a basis for execution in every other country, except those which have declared themselves on principle against the recognition of any foreign judgments, and gives the party a right to resist the repetition or the continuation of the action in any other court. NOTE ZZ ON § 473. LIS ALIBI PENDENS. [The plea of lis alibi pendens is a plea recognised in England as a ground which may give a defender a good cause of complaint. But, the question being one of the balance of convenience, it by no means follows that the mere fact of the dependency of an action in the English court and in the foreign court about the same matter, will induce the English court to interfere so as to force the plaintiff to abandon one or the other. It must be shown that there is vexation actually caused to the defender, and that without necessity for it. The court will be " very cautious " before it interferes in such cases, for it cannot fully appreciate the object which the pursuer may have in view, and the advantages he may hope to gain by his double pursuit. One obvious advantage is that he may be able, by arrestment on the dependence of the foreign action, to secure a fund for payment of his claim in the event of ultimate success. Where the English court is familiar with the pro- cedure of the competing court, e.g. where that competing court is a Scots or Irish court, affording remedies of the same kind as are available in England, and where execution on the English judgment can easily be done, then the double proceedings will be more readily interfered with. M'Henry v. Lewis, 1882, L. E. 22, Ch. Div. 397; Peruvian Guano Co. v, Bockwoldt, 1883, L. E. 23, Ch. Div. 225, and other cases cited by Westlake^ § 338, pp. 357 et seq. The course to be taken is the same whether the English or the foreign proceedings are prior in date. Peruvian Guano Co. ut sup. Wedderburn V. Wedderburn, 1840, 4 M. and Cr. 596. The Scottish rule is stated by Lord Neaves in the case of Cochrane v. ' See German Sup. Ct. of Comm. 30th March 1876 (Dec. xix. pp. 417, 418 and Seuffert xxxii. § 180). " " See Fusinato, p. 104, and the judgments of Italian courts cited by him. NOTE ZZ\ Ljs ALIBI PENDENS. IOO9 Paul, 1857, Ct. of Sess. Eeps. 2nd ser. xx. p. 178, thus : " There seems no incompetency in a creditor bringing several suits against his debtor in several countries for the same debt, if there is jurisdiction in all, though 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, 1846, Ct. of Sess. Eeps. 2nd ser. viii. p. 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 interdict the court had power to enforce, all of the pursuers being domiciled in Scotland. Where an action has been commenced in a competent court, which can dispose of all the questions raised, and another action is subse- quently raised in Scotland, the Scots courts will not sist procedure, but will dismiss the second action. (Ferguson v. Buchanan, 1890, Ct. of Sess. Eeps. 4th ser. xviii. p. 119.) It does not, however, by any means follow that an action, even under these circumstances, would be dismissed if it were the best or the only available means of securing funds within the jurisdiction of the Scots Court, which might eventually be required to satisfy the pursuer's demands. 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 conveniently settle the points at issue, although no action may as yet have been taken in any other court. This plea has most frequently been sustained in cases belonging to two classes, says Inglis, J. C, in Clements v. Macaulay, 1866 ; Ct. of Sess. Eeps. 3rd ser. iv. 592, 593) — viz. cases in which executors have been called to account, and in cases arising out of the terms of copartneries. The court has regard to the interest of the parties generally. In such cases there is ex hypotJiesi a concurrent jurisdiction in the two courts. If no good object can be served by keeping the Scots action in court, if, eg. it is an action for accounting against trustees who are willing to account, and who can be called to account in the forum in which they assumed administration, then the result of sustaining the plea oi forum non £onveniens will be to dismiss the Scots action. If, however, the Scots court should see a prospect that it may aid the action and supplement the powers of the foreign court, so that full justice may be done, it will, in place of dismissing the Scots action, sist procedure, and refrain from interposing, until some stage in the foreign process is reached at which it can resume consideration of the case cum effectu (see Lord Watson in Orr Ewing's Trs. 24th July 1885, Ct. of Sess. Eeps. 4th ser. xiii. H. of L. p. 1). It would seem that the plea is equally applicable to "all cases of double jurisdiction in whicli the ends of justice seem to require 3 s loio bak's international law [§ 474- its exercise" (per L. J. C. MonereifFin "Williamson v. K E. Ey. Co. 1884, Ct. of Sess. Eeps. 4tli ser. xi. p. 596). In that case, the Scots court refused to entertain an action for damages against an English Eailway Company, although their jurisdiction to do so was not doubtful, because the event from which the claim sprung occurred in England, the witnesses were in England, and a plea involving considerations of the English law as to right of way was raised. " Although jurisdiction exists," if "• it appears that it is not convenient nor fitting for the interests of the parties " to try the question in Scotland, then the Scots court will not exercise its jurisdiction. It may be very difficult to reconcile this rule with the maxim "judex tenetur imp eriiri judicium suum," i.e. that a judge who has jurisdiction is bound to give justice to those who come to ask it. The solution of the difficulty is to be found in an application of the principle which the English courts take as their guide in considering the plea of lis alibi pendens : there must be a risk of injustice being done, or of hardship or inconvenience falling upon the defender out of proportion to the advantage which the pursuer promises to himself by having the action tried in Scot- land rather than in another country. The reasons in the case of Williamson {sup. cit.) seem slight enough for declining jurisdiction. The doctrine has been stated to the foregoing effect in the recent case of Sim v. Eobinow, March 17, 1892, 29 S.L.E. 585.] appendix. International Courts of Arbitration when Execution is Eefused. § 474. It is possible that, though all the conditions necessary for an exequatur are present, the courts of a State may erroneously refuse to give it. We have had occasion to notice this particularly in cases in which the, foundation for allowing exequatur was a treaty, a fact which confirms what, we have said as to the worthlessness of the doctrine if it has to rest upon treaties and the express provisions of statutes.^ What is to be done in' such cases ? It has been proposed to set up a court of arbitration composed of eminent jurists belonging to the countries concerned.^ But the bare conception of such a court is met at once by difficulties that are almost insurmountable. It would be difficult to bring about an agreement as to an oversman skilled in the law of both countries, who should make an uneven number, and so determine the opinion of the majority. The only remedy we have to suggest is to be found in the better understanding of the subject, which will by degrees grow up, so far at least as we do not. make the mistake of constantly calling in artificial and inappropriate expedients, or of setting up treaties upon false bases. In questions that concern the domestic municipal law of a country erroneous judgments are often pronounced, and must now and again be borne by the parties. Could we hope that it could be otherwise in the sphere of private international law ? *■ 1 See Martin, Du traiU conclu entre la France et la Suisse, 16lh Juin 1869, et de la nicessm de la reviser (J. vi. p. 117). ' ' ' ' So Martin ut cit. s gee Lehr (J. yi. p. 534) on Martin's dissertations. TTwelftb JBooft. LAW OF BANKRUPTCY I. INTEODUCTIOisr. The Different Theories. Universal Operation of Sequestration ? § 475. Procedure in bankruptcy is a fruitful source of difficulties in international intercourse. It is set on foot with a kind of judicial deliver- ance, pronounced either on the application of a creditor or of a person who is overloaded with debt. This deliverance has, however, peculiar effects. It does not decide any legal dispute. Its effect rather is to place the debtor under a kind of curatory : it bars his debtors from obtaining a valid discharge by paying their debts to him. It prevents the creditors of the common debtor from following out such means of execution as may have hitherto been open to them. It compels all creditors, putting out of the question any who may be fortified by some real preference, to put forward all their claims in one court, with a view to satisfying all alike, on pain of exclusion if they fail to do so. These are very complicated effects, which we shall not be able to regulate and control in a satisfactory manner in international relations, by any body of rules framed either on the footing that an award of sequestration is a judgment, or that it is an act of volun- tary jurisdiction dealing with the status of the debtor.^ On the other hand, the questions of international bankruptcy are the very questions which in our time press most urgently for solution. It is perfectly clear that we shall often find ourselves in a state of hopeless bewilderment, if ah insolvent person has substantial parcels of property in different countries, while the courts of the one country are quite regardless of what the courts of the other may have ordered in the various sequestration proceedings : while, on the other hand, the necessities of commercial credit seem likely to be best 1 For a long time the controversy turned upon the insoluble question whether bankruptcy procedure yvsiS a. stalutum personate or a statutum reale. See Eocco, p. 354. Most recently Norsa (Rev. viii. p. 627) has sought his starting-point in the answer to this question. Of course, the "incapacity" of the bankrupt tends to the theory >f a personal statute, the end and object of the procedure— the division of the property— to that of a real Statute. 1011 I0I2 BAliS INTERNATIONAL LAW. [§ 476 ©■ served if the whole substance belonging to one and the same person is subjected to one uniform treatment. § 476. More modern German legal philosophy, after Savigny,^ has hardly given sufficient attention to the subject of the international treatment of bankruptcy. The only thorough discussions of the subject to be found in Germany are in the careful judgments of the old Supreme Court of Commerce for the Empire, and now in those of the Supreme Court of the Empire.* English law on many of the leading points has reached fairly satisfactory results, less perhaps by a discussion of general principles, than by the exercise of practical good sense. The French theory, however, has shown the most praiseworthy endeavours to find from various points of view a real solution of the difficulties of the subject, although, as Daguin in particular has pointed out (p. 169), it has in the end fallen into the greatest confusion. Lastly, the most recent Italian doctrine, which has found adherents in France, rises above all these difficulties. Identifying what it thinks desirable with what actually is, it simply sets up as an axiom the universal validity of the sequestration which has been instituted at the domicile of the debtor, a result which Savigny (§ 374, Guthrie, p. 261) had already attempted to show must necessarily flow from the aid which the courts of one country give to those of another in international questions.* Of course, there are many others who in despair rush for the only harbour of refuge they know, viz. the conclusion of treaties : they are driven to this by the belief, which we think very doubtful, that what lawyers cannot make clear, may be revealed to the penetration of diplomatists. The first and most obvious consequence of sequestration being awarded, or bankruptcy being ascertained, is that the common debtor loses his power of dealing with his estate. He is for the future represented by the trustee ^ In older German law the question of the lAs atiractiva of the sequestration, as regarded pro- perty of the bankrupt in a foreign country, was often discussed. But the older writers reached no certain or abiding results. Pufendorff, Obsenat. juris univ. i. ots. 217, pronounces in favour of the universal effect of a sequestration even as regards property in another country. He makes this exception, however, that secured creditors may remain in ihe forum rei sitae, if the law of the court of the sequestration would be unfavourable to them. Strube, MechtlicJie Bedenken, seems to assert that, as a general rule, there was a separate sequestration in foro rei sitae. Dabelow, Ausfuhrliche Entviickelung der Lehre vom Concurse (1801), p. 746, endeavours to combat the views of those who hold that there must be separate processes at the places where assets are to be found. He thus defends the doctrine of the universality of bankruptcy, but has to confess in the end, that it is impossible to carry out this theory in practice, even as among the different German States. ' Thus in Fuchs's work (Leipzig 1877) we find a few very scanty remarks based upon the German Ordinance for Bankruptcy (Concursordnung). But even these are wanting in Schultze's Dais Deutsche Concursrecht (Berlin 1880), although an enquiry into the international recognition of any doctrine of law is not unimportant as part of an enquiry into the truth of a general juridical theory of that doctrine. Again, the most recent and somewhat more detailed discussion by Endemann {Das Deutsche Concurs Verfdhren, p. 640) does not wander far from the literal interpretation of the German Ordinance. * This aid, however, is not given unconditionally, but only on express conditions. The question is whether these conditions are present, and this point Savigny does not examine. § ^'^6] UNIVERSALITY OF BANKRUPTCY. IOI3 {curator, syndic, or gutcrverwalter). French law draws from this fact the conclusion, that the proceeding is one which shows something as to the status of the bankrupt, and is therefore dependent on a statut personnel, and as such claims universal recognition, and that too without there being any necessity for a special declaration of exequatur being pronounced upon a foreign award of bankruptcy,^ since in judgments which simply modify the status of a person this latter requirement is waived. It seems that an exequatur by the French Government is not necessary unless the foreign award of sequestration is intended to have some further direct compulsitor, e.g. to bar any special actions by other creditors in the courts of France. But it is incorrect to treat the effects of an award of sequestration on the same footing as an alteration of status, e.g. as an interdiction on the ground of prodigality. The bankrupt does not become incapable of acting for any effect, as a pupil is : * he simply loses his power of dealing with the estate attached by the sequestration. Our iirst enquiry then must be whether the foreign property at once falls into the sequestra- tion ; this argument, then, when we look closely at it, moves in a circle. The fact, however, which makes this view entirely untenable is that, in the theory which is now universally adopted in France — in our opinion a correct theory — the personal law, which is decisive in questions of capacity to act, is the law of a man's nationality ; whereas there can be no doubt, on the other hand, according to the Franco-Italian theory, that it is the court of the domicile that has jurisdiction to award sequestration, and that it is the law of the domicile that must regulate that sequestration. This contradiction cannot possibly be explained away on any theory of statut personnel. Besides, what are we to understand precisely by a decree of exequatur upon an award of sequestration ? what are to be its conditions, what shape is it to take, and what are to be its effects ? Are its effects confined to the parties immediately concerned in it, e.g. to persons who are asked by the trustee to make payment of some outstanding debt due to the bankrupt, or does it affect third parties also ? It would be more in accordance with the universality of the original award that it should affect third parties, the public in general ; any restriction upon its operation would in truth be a mutilation of it. But to give it the larger operation would require substantially a public proclam-ation, and nothing of that kind is suggested by the French authorities. Again, on what points is it to be lawful to raise a debate when application for execution is made ? On » But yet French law i.s more and more averse, and in our view rightly so, to hold that a foreien award of sequestration bars an award in this country. Cf. Ct. Bordeaux, 25th March 1885 : Ct. of Paris, 11th Nov.'lSSe (J. xiii. pp. 710, 711), and Clunet, iUA. The universality of bankruptcy is therefore not recognised in its principal feature. 6 See Korsa, Eev. vi. p. 272 ; A. G. Coin, 22nd July 1870 (J. iii. p. 460). Calvo, ii. 8 907 says • " L'eiat defailU est rigi par le statut personnel quant aux actes dont lefailh dement lersc^llermnt incapable : mais il est rigipar le statut riel quant aux actes qui ne sont interdits au faUli que par rapport A ses Mens et dans VinterUde ses erjanders I cannot reconcile the ZL part of this sentence with the former. The theory developed by Calvo (p. 413, note 1) cannot by any means solve all difBculties : undoubtedly what is said there is sound. 10 14 bar's INTERNATIONAL LAW. [§476 jurisdiction only, or may other conditions of the foreign decree be ques- tioned ? To none of these questions does the French law give us a satisfac- tory answer : its procedure does not seem to be guided by any definite plan. In close connection with the theory of the personal statute is, on the one hand, the theory which attributes a certain universal operation to the sequestration in respect that the trustee, or trustees, holds the position of a mandatary,'' and on the other the theory which traces the same result, i.e. the universality of the sequestration, to the notion that, in the award of sequestration, the creation of a juridical person, into whose hands the estate passes, is to be descried.^ But the powers of the trustee are not merely those of a mandatary : the effects of the sequestration go much deeper, both as regards the creditors and the debtors of the bankrupt. To do justice to the theory of mandate, it would frequently be necessary, if ■we were to go strictly to work, to make a distinction in practice between a voluntary declaration of insolvency and a compulsory sequestration. Again, the theory of a new juridical personality is not in harmony with actually existing law, and besides that does not advance us at all, for this reason, that the rights of juristic persons that come into existence in a foreign country are by no means treated on the same footing in all respects as those of juristic persons belonging to this country. The question would necessarily arise, whether a juristic person would not have to, be created in this country for the estate which is situated here, to correspond Tvith the foreign person in charge of the foreign property. Just as little satisfaction is to be got from another theory, which seeks to set up an indefinite kind of universality for an award of sequestration by declaring that all that is affected by this award is to establish a fact, viz. the fact of insolvency, and points to this as the effect of sequestration in France.* This theory proceeds just as if all positive systems of law were content with establishing this simple fact of insolvency, and then left it to the creditors, after they had been advised of this fact by the decree of the court, to secure themselves as best they might ; just as if the truth were not that every actual system of law associates very definite and very far-reaching effects with an award of sequestration, these effects undoubtedly in some degree bearing the character of the most direct com- pulsitors. Further, the argument based by Fiore (Fall. p. 48) on an appeal to the idea of res judicata, is deceptive. He thinlcs that the award of seques- tration is to be respected all the world over as a res judicata, and, on general principles, will only require a decree of exequatur in another country in so far as it is intended to be followed by direct compulsitors there. That decree of exequatur will apparently — but this is not quite clear — be pro- ' So Masse, ii. § 809. 8 So Brocher, N. Tr. § 72. ^ So according to Haus, Dr. pr. § 146, on the authority of Merlin, JUp. Vo. FailleU, ii. § 2, No. 11. S ^7'''] UNIVEKSALITY OF BANKRUPTCY. IO15 iiounced without any special enquiry, except, perhaps; an enquiry into the jurisdiction of the court that originally made the award: A decree awarding sequestration is, however, a very different thing from a true decree pronounced inforo contentioso. It confers no definite right on any one. It involves a general measure of security for all con- cerned, and in general sets up rules for a ^wasi-curatorial administration. This is enough to warrant the rejection of the analogy between it and an ordinary decree. But there is another reason. A res judicata cannot claim general recognition, unless it applies to some legal relation, which was either from the first subject to the legal authority of the State whose court pronounced the original judgment, or became so subject by the voluntary submission of parties to the jurisdiction of that court. Can ,we say that of an award of sequestration ? In our view this question must be answered in the negative, unless we are to make use of the wildest -fictions. The judge in bankruptcy draws into his own court the obligations of the bankrupt, contracted in the most distant countries, and ruled, it may be, on that account by the most diverse systems of law. That will be the case, in the view of Fiore and of all those who uphold the universal operation of the sequestration, even if all the conditions for jurisdiction, and even for execution, are to be found in some other country. But that is a step far in excess of the conditions of res yw^^zcato in other matters; and while, in other matters, the pursuer has the choice among any con- current jurisdictions that may exist, in this case he is not allowed his choice, but the jurisdiction of the court of the bankruptcy of the domicile is made an exclusive jurisdiction in so far as the bankrupt estate is con- cerned. The whole of this argument, upon the idea of res judicata}'^ is like a transparent sheet of glass behind which we get sight of the real argument, that the universality of the sequestration is postulated simply because it is desirable. This is in fact the simple argument advanced by Oarle and by Dubois, his French translator and commentator^^ (p. 54). § 477. Now, of course, it is true that a body of creditors cannot all be dealt with alike, except by subjecting the whole body to the same law in so far as the division of the sum of the estate is concerned, and by refusing , 10 It had already been hinted at by Savjgny, as we have pointed out. " The law of England has struck out a kind of via media. It respects theoretically the universal operation of a foreign bankruptcy in so far as moveables are concerned, by treating the sequestration as an universal assignment of the estate to the creditors, i.e. a kind of suc- cession ; it applies to the case the rule "mobilia personam sequuntur." But this theory is but ill carried out. Moveable succession is subject only to one law, that of the domicile, but under certain circumstances bankruptcy is awarded in England against persons who have no domicile there, and without caring whether a similar award has or has not been made simul- taneously in another country. On the law of England, see Westlake-Holtzendorff, §§ 118 et sea The law of the United States does not allow a foreign bankruptcy any effect even upon moveables beyond its own territory. Story, § 403 ; Wharton, § 390. ioi6 bar's internat/onal law. [§ 477 to allow the accidental circumstance of this or that asset of the estate being beyond the territorial limits of the State in which the court of the bankruptcy is situated, to make any difference. There is every reason for attributing to the law which has to consider the award of sequestration a tendency to give it as wide an operation as possible. But is it then so simple a matter that other States should recognise this claim of " universale judicium," as Carle calls it, without requiring any guarantees ? Is it so obvious that creditors who belong to this country, and have contracted here with the bankrupt, and who were entitled to expect fulfilment of that contract here, should be robbed by a decree pronounced in some distant country — upon what grounds no one can say, for there are many places in which the awarding of sequestrations is a profitable branch of the legal trade — of the jurisdiction which has been established in the courts of this country, and of the assets in this country available for execution, and be forced to go to a distance in an uncertain search for their rights ? Besides, we have to remember that an award of bankruptcy affects the legal position of the debtors, and of persons who then for the first time make contracts with the bankrupt, in a most marked way. All systems of law pay attention to this fact, and make provision for it by prescribing public advertisements, and setting up certain presumptions as to the knowledge or the ignorance of parties of the existence of the bankruptcy. Is it possible to extend the operation of these rules to other countries, which the advertisements of the court of the sequestration perhaps do not reach, which at least we have no guarantee that they will reach, and where no single member of the public knows or is bound to know the law which will rule matters in the distant foreign court in which the bank- ruptcy is pending? Indeed, it may be that bankruptcy has a certain retrospective effect. Is this to be so, to the prejudice of creditors who have contracted with the bankrupt in a foreign land ? Another result of the universality of the bankruptcy would be, that it would cover the distant trading or manufacturing establishments of the bankrupt. If it is not desired to make so serious an extension of its operation, on what ground can it be excluded ? Lastly, creditors living at a distance may actually be seriously prejudiced. It is quite possible to set them on a level with native creditors in so far as the letter of the law is concerned, and at the same time de facto to shut them out, by paying no attention to the difficulties of intimation to them. It is also possible to deprive them of almost every opportunity of taking part in the administration of the bankrupt estate.^^ To maintain the universal validity of the bankruptcy in the face of these considerations, it has been argued that, if you contract with a person who lives in another country, you must make up your mind that it is quite possible ^^ It is plain, then, that it is not quite sound to look upon the universal operation of bank- ruptcy as the " sauvegarde du credit par la protection de tous Us crianciers," as Glasson (J. viii. pp. 126, 127) does. §478] NATURE OF SEQUESTRATION: 101/ that It may turn out that this debtor will become bankrupt in that foreign country.13 But this is precisely a thing that cannot always be foreseen : your debtor may change his domicile, while the creditor may not always be in a position to raise his action before he has done so. If It should be possible successfully to conclude practical international treaties, the future may belong to the recognition of the universality of bankruptcy.!* We cannot, however, by any means treat that universal operation of bankruptcy as a doctrine of law that is positively recognised; i^ it is all the less possible to do so that on careful investigation we shall perhaps discover that the advantages that belong to a recognition of this universal operation of bankruptcy may approximately, or to a certain extent, be attained through the remedies that are already at the service of existing systems of law. Let us then, with this object in view, attempt to settle the character of the sequestration process in its main features. II. SYSTEMATIC EXPOSITION" ACCOEDING TO THE PEINCIPLES OE POSITIVE LAW. A. THE PEIKCIPLE: BANKRUPTCY A GENERAL EXECUTION OF DILIGENCE :!« AWARD OF SEQUESTRATION A GENERAL ARRESTMENT. § 478. 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 succession falling to him, which no one who had lost his capacity of " So Despagnet, § 626. ^* So Lyon-Caenet Renault, Dr. c. ii. § 3138. ^5 See to this effect Bard, § 254, and Rivier (Asser-Rivier, § 123, note), who declares against Asser on this point. Asser maintains the universal validity of bankruptcy. '" See German Sup. Ct. of Comm. 13th June 1871 (Seuifert, xxvi. No. 1) ; App. Ct. of Celle, 29th Feb. 1872 (Seufifert, xxvii. No. ) ) ; Sup. Ct. at Stuttgart, 29th Nov. 1879 (Seuflfert, XXXV. No. 90). ^' Neither does bankruptcy give the creditors an 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. If the law of any country should set up tlie theory of a transfer of the property on the analogy of a succession, no effect would be given in any other country to this theory. See German Imp. Ct. (i.), 11th Dec. 1884. Blum. Ann. i. p. 298, No. 170. App. Ct. Celn, 22nd July 1870 (J. iii. p. 460). ioi8 bar's international law. [§ 479 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 representative of the creditors {curator bonorum, 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, he 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 preferentially or pari passu. This right to interpose, in which the bankrupt has no interest, leads to special suits between individual creditors for preferable rankings. b. conclusions. Power of the Bankrupt to deal with Foreign Property. Legal Position of the Trustee. Collection of Foreign Property by THE Trustee. § 479. The first result that flows from the nature of a general execution of diligence is that, without regard to the nationality of the debtor, it will take place where the centre of his dealings with his property lies, i.e. at his domicile. All actions whose conclusions can be expressed in money's worth— and with such actions only are we concerned in bankruptcy — may be brought there. This is a view which is not disputed by any one.i^ Those, however, who refer the universal validity of bankruptcy to the fact of its' being a staiut personnel cannot make this assumption any more than those who reason from its being a statut rMP Bard f„\f ■^^^■^"^"^S 23; Fiore, Fall. p. 13 ; de Rossi, Studi, p. 184; Gerbaut, § 344; Bard, § 224 : Asser-Kiyier, § 224 ; Lammasch, p. 443. The jurisdiction of the judex donvi^U tLt f I'' TT . °. f"'"' ^'^""' "^ ''° ^'^^""^ i" *^^ 1^^« °f England, of Germany, and in that of the United States, which take dondcile and not nationality as their principle in all matters of international law. An interesting judgment of the Sup. Ct. of Austria, reported 7J,' ''"'u?' u' ™ application for sequestration in Austria to be inadmissible if the debtor, although an Austrian subject, is domiciled abroad. ,ih,!l^»r*'?!^ ® t '^' I'ranco-Swiss treaty of 1869, the place where a trading establishment is situated settles the question. Since it is the /mm for actions upon debt that has to be taken into consideration here, it ollows that, where a distinction is taken between authorised and non-authorised domicile as t IS '"France a non-authorised domicile is not enough. So Ct. of Paris, 23rd Nov. 1874 (J. riiilvdecidJrt ^"'^;,°7'»- ^' Brussels, 7th Dec. 1885 (J. xiv. p. 360), has decided, and Sfcttn ''' ' '° '''*'''' circumstances, that a mere risid^ is sufficient to give VlZuSh^C ISe'*'^''' '^*^^' ' ' ' ""^^"^ ^^^^"''•" '^ """<^ *° <=°'"P^1 conviction here. See de 8 ^79] POWERS OF BANKRUPT. IOI9 Troin the nature of arrestment, it follows that the withdrawal 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 arrestment on the part of the foreign judge, and that whether the property is real or moveable property. Goods, however, which are despatched after an award of bankruptcy by the bankrupt to a foreign country, do not really become the property of the receiver. 21 That is not because the incapacity of the bankrupt follows him to that extent into the foreign country ,22 but because articles which have been attached in this country by the general arrestment implied in bank- ruptcy, pledged, that is, to the creditors, cannot simply shake themselves free from that real burden, by passing the frontier. (See swprot, pp. 497, 498.) If, again, the bankrupt is a juristic person (e.g. a limited company), any ■ alterations which, according to the lex domicilii, are effected by the award •of bankruptcy upon the way in which that juristic person is represented in law, must iipso facto be recognised abroad.^^ For alterations, which the lex, domicilii introduces into the constitution of a juristic person, are effectual beyond the territory. The question is not, a,s it is in the case of physical persons, what legal consequences are to be attributed to a factum which is independent of law altogether : we are here considering an organisation, which is necessarily attached to some particular local centre. Again, the bankrupt does not necessarily, as a result of an award of bankruptcy in another country, lose his capacity of suing. At the same time, the trustee named by the court of the bankruptcy may appear, if the foreign bankrupt can competently be sued in this country, as a party in that process, the trustee's interest being that nothing shall be withdrawn from the estate by means of diligence following on that process : and he may as representa- tive of the bankrupt conduct that process to its conclusion. A remarkable judgment of the German Imperial Court proceeds on these views of the law (iii. 28th Mar. 1882. Dec. vi. No. 125, pp. 401 et seq., particularly pp. 407, 408). It must, however, be conceded that it is an object which the law under which the general execution is awarded must necessarily have in view. 2» Mevius, in Jus. Luh. iii. tit. 1, arts. 10 and 56 ; Pufendorf, Olserv. i. obs. 127 ; J. Voet, Comment, xx.' 4, § 12 ; Masse, No. 324 ; Merlin, Ripert. FailliU, sect. 2, § 2, art. 10 ; Judgment of the Faeulty of Law at GBttingen in Bbhmor, ReehtsfdlU, i. No. 82, p. 648, note 17 ; Gand, No. 628 ; Judgment of the Supreme Court of Appeal at Liibeek, 19th Jan. 1824 (Seuffert, v. p 439) -'supreme Court of Appeal at Cassel, 1st March 1834 (Strippelmann, iv. 1, p. 18f!) ; Supreme Court at Berlin, 16th July 1857 (Striethorst, xxvi. p. 131). Norsa, Rev. viii. p. 639, relying on a judgment of the App. Ct. of Turin, 3rd April 1870. 21 So Ct. of Milan, 14th Aug. 1868, an extract of which is given by Norsa, Rev. vi. p. 273. ^ So Norsa, ut. cit. 23 See German Imp. Ct. (i.), 21st Jan. 1885, and 28th Sept. 1885 (Dec. xiv. No. 116, p. 41/, and xvi. No. 78, p. I020 bar's international law. [§ 479 that the operation of this execution shall be as broad as possible. The theory of the universality of bankruptcy, viewed as a tendency in this direction, has a direct practical value. Accordingly, the trustee in the sequestration must, by virtue of his appointment, and without the necessity of any special exequatur, as a consequence of the award of bankruptcy in a foreign country, be held to have a title to have arrestments laid on the property which he finds in the foreign country,^* ^^ for the benefit of all the creditors who are concerned in the sequestration, and to collect generally all the debts due to the estate, except in so far as a separate process of bankruptcy has been instituted or an arrestment laid on from some other quarter.^® It is because the administration by a foreign trustee is merely an exercise of the right of arrestment, belonging to the foreign bankruptcy, that actions against foreign trustees, by means of which it is sought to enforce some personal obligation undertaken by the bankrupt, must be thrown out.^' It would be impossible to allow such actions to interfere with the preferential right which the creditors who take part in the foreign sequestration have acquired in virtue of the arrestment implied in it ; and thus the pursuers of such actions would take nothing by them, as they desire to do, until the whole body of creditors who have taken part in the foreign sequestration have been satisfied. Indeed, unless the execution of arrestments laid on by a foreign court is forbidden by some general rule, such as for instance we find that the German Civilprocessordnung erroneously enacts, the trustee may obtain a decree of exequatur upon the general arrestment, imposed by virtue of the foreign award of bankruptcy, wherever property belonging to the bankrupt happens to be.^s This will not, of course, be carried out in the form of a general public notice. Such a method would imply a direct recognition of the extra-territorial operation of the bankruptcy, and would necessitate the framing of rules as to the form of such notices, which could only be done by positive legislation : any existing rules of the court regulating-similar Even English law recognises the right of a foreign trustee to administer the moveables that happen to be in England. Westlake-Holtzendorfif, § 125 (p. 155). We must also hold that any asset of property vindicated for the estate by the administrator of it, is at once subject to this right of arrestment or security. If not, we should make it impossible for a foreign bankrupt estate to carry on business in this country. The judgment of the German Imp. Ct. (ill.), 13th Jan. 1885 (Dec. xiy. No. U7), is to this effect, although substantially based on the words of the 207th section of the Bankruptcy Ordinance. 26 The right of the trustee to take up a succession for the bankrupt, and so to make it part of the trust-estate, must be detei-mined by the law of the court of the bankruptcy, not of the court which m other respects deals with the succession. See German Ct. of Comm. 23rd Oct. 1874 (Dec. xiv. p. 344). J« See Ct. of Brussels, 13th May 1879 (J. viii. p. 79) ; Ct. of Lifege, 24th May 1879 (J. viii. p. 80). ^ So, too, English practice. See Westlake-Holtzendorff, § 127. 28 The practicalidifference [between recognising his title to apply for arrestment and granting such an exequatur] may not be great, and if the forms for obtaining an exequatur involve much delay, it may be found advisable to make an independent application for arrestment. The fact ot bankruptcy is sufficient proof that there is risk of loss. § -iSO] ARRESTMENT IMPLIED IN BANKRUPTCY. I02I • notices could in themselves only be applicable to bankruptcies within the territory. If, however, the bankruptcy was awarded on the motion of the insolvent himself, or without any opposition on his part, then it might well be held that the trustee, as agent for the bankrupt, was entitled to deal with any assets of property that were in the possession of the bankrupt, or to raise and prosecute an action against a debtor of the bankrupt. ^^ Still more certain is it that the persona standi in judicio of the foreign trustee must be recognised, if he is asked to surrender some asset of property which he has reduced into possession, or if an arrestment which has been laid on by him is disputed. Although the foreign bankruptcy by no means renders the bankrupt incapable of raising or prosecuting, without the co-operation of the trustee, a suit in our courts, and although it does not interrupt any such process (as, by § 218 of the German Ordinance, an award of bankruptcy in Germany interrupts a German action), still we must allow the foreign trustee, in virtue of his appointment, to sist himself as a party to any such action,^" since he represents the interests of the creditors who are concerned in the foreign bankruptcy, and the issue of any action, although conducted by the bankrupt in a foreign country, has an effect upon the dividend that will in the end be available for them. Opposition to the Withdrawal of Property in this Country with A View to place it under a Foreign Bankruptcy Process. § 480. If we do not proceed upon the theory of the universality of bankruptcy, which is open to dispute as a matter of positive law, unless there be some express provision in its favour in any legal system that may be in question, it is a point of the highest interest to consider, whether and under what conditions creditors, and in particular creditors belonging to this country, are entitled to resist the withdrawal of property belonging to a foreio'n bankrupt from this country to be placed under a foreign adminis- tration in bankruptcy. The answer to this question must simply be to this effect, that they are entitled to do so in so far as the law of this country secures them a juris- ts It is generally held in France that foreign trustees may, in virtue of that appointment, sue in name of a foreign bankrupt. Gerbaut, § 20 ; Dubois, J. i. p. 452. Ct. of Paris, 28th Feb 1881 (Liquidation of a foreign company, J. viii. p. 263). As Clunet (J. x. p. 161) remarks in reference to a judgment of the Ct. of Toulouse of 16th April 1883, French law is always tending more and more in that direction. In Belgium, too, it seems to be a constant rule that it is not necessary to obtain an exequatur on the foreign award to entitle the trustee to sue in Belgium. See Trib. Comm. Mons. Uth Feb. 1874 (J. ii. p. 447) ; Trib. Comm. Brussels 1st Dec. 1873 (J. i. p. 137) ; Trib. Civ. Arlon (J. v. p. 516) ; Court of Li^e, 24th May 1878 (J. viii. p. 80) ; Humblet (J. x. p. 471) ; see also Gianzana (iii. § 211), in support of ""^^rse'e German Sup. Ct. of Comm. 28th Feb. 1871 (Dec. ii. p. 68). I cannot join in the doubts raised by the Sachs (Eev. vi. p. 258) as to the soundnes,s of this decision. I022 bar's international LAW. [§ 480 diction in which to sue out their claims in this country, but no further.^^ ^2 In that case they have in the nature of things a right to vindicate that jurisdiction by applying for arrestment of the funds in this country, and against that arrestment any application for arrestment subsequently made by the foreign trustee would be ineffectual. If, then, the forum oUigatio)iis is reduced to its proper limits (see supra, § 424), and if the computation and division of the dividends among personal creditors is not in a legal sense allowed to be at all disturbed by real rights being advanced in a forum distinct from that in which the bankruptcy depends, it is plain that the operation of a sequestration which has been awarded inforo domicilii cannot be effected by prosecution of any special execution or diligence, or arrestment of particular articles in a foreign country, save to a very limited extent. In many cases, and in the most important aspects, the result will be to give an universal operation to the sequestration, without the necessity of any special rule of law to that effect. This explains how in older practice the evils, which, as it seems, must spring from the want of a special rule of law establishing the universality of a bankruptcy, were not so much felt, and how, on the other hand, these evils have come prominently to the front in very recent times. For it is to these very recent times that we owe the enormous extension of the forum contractus over matters of international law, which we have already noticed, and also the discovery of these arbitrary kinds of jurisdic- tion, with as many arms as a polypus, such as we find in art. 14 of the Code Civil, and § 24 of the German Civilprocessordnung (see supra, § 419, note), [which gives jurisdiction to the German Courts • 2' On the other hand, the view which was at one time maintained, and in the Hannoverian Pro- cissordnung of 1850, § 605, sanctioned by law, was that in all cases in which a sequestration had been set on foot in a foreign country, a separate process should be started in this country to deal with the property that was situated here (see Schmidt, Zeitschr. filr Deutschen civilprocess. vol. vi. p. 1). If, for instance, there was only a single creditor in this country, it would be absurd to set on foot a separate process ; again, if in ordinary circumstances a process of bank- ruptcy cannot be set on foot by the court without a motion being made to that effect, neither should a separate process be so started in the case we have put. The German Ordinance in bankruptcy, § 208, very properly will only allow a second formal process of bankruptcy in Germany in cases where there is some aggregate of property, e.g. a manufactory or trading house within the empire ; but in other cases it contents itself with sanctioning <§ 207) execu- ' tion of the decrees of the foreign court of bankruptcy. From this it follows, as a matter of course, that an action in the German Empire is competent, as that may be the initial step towards execution, provided always that there is some court within the empire with jurisdic- tion to entertain the action. The omission to mention the competency of raising action is explained by the force which is attributed to the vis attractiva of the bankruptcy. Even a German bankruptcy does not prevent actions being raised in a court other than that of the bankruptcy, although it does prevent execution being done on any of the property belonging to the bankrupt estate. 32 French courts have in many cases refused to allow a French creditor to oppose an exequatur of a foreign sequestration, if he has taken part in the foreign sequestration, particularly if he has received dividends in it. Gt. of Eennes, 19th February 1879 (J. vii. p. 476) ; Trib. Seine, 28th July 1881 (J. ix. p. 200) ; in this latter case an agreement concluded in the foreign country had, at least by implication, been ratified by the representative of the creditor. . , 8 ^^1] PLURALITY OF BANKRUPTCIES. I,023 in respect of the existence of any property of the defender within the territory, irrespective of its value.] These throw the greatest difficulties— how could it be otherwise ?— in the way of a satisfactory settlement of the question. Claims of jurisdiction of such a character, dictated simply by national exclusiveness, set a judicial warfare on foot in the domain of the law of bankruptcy as well as elsewhere. Possibility of a Plurality of Bankruptcies. Several Business Crntres, or Trading Establishments. Shares in Public Trading Companies. Plurality of Domiciles. § 481. The consideration that those creditors only whose claims can competently be dealt with by the courts of this country have a right to say that the estate in this country shall not be made forthcoming in the foreign bankruptcy, leads naturally to the solution of the further question, viz. whether there should not be several bankruptcies, where a man has trading establishments in several countries, or has a share involving personal liabilities in several trading companies. The question must be answered in the affirmative.^^ The creditors, who have given credit to a particular trading establishment, in their view may fairly demand that this, with all its appurtenances, should be primarily available for their satisfaction. It would be unjust to send these persons, who might well expect that all their claims should be worked out in connection with this business in this country, away to a court that may be a long way off. If we reflect that in many cases one and the same person has interests in trading establishments, or firms, in different countries very far removed from each other, the only practical course will be seen to be, in such cases, that separate bankruptcies- should be set on foot. Doubts, too, might easily arise in such cases, if there was any attempt to transfer the whole , procedure to tlie forum domicilii, as to where in truth the domicile of the person was, and it might, as a matter of business, be quite immaterial where it was, as, for instance, if a man on account of health lives with his family in some place other than that in which he carries on his trade. From what has been said, it follows that a process of bankruptcy against a public trading company must be set on foot at the place where the company has its seat, and not at the domicile of the individual partners.^* We do not need in order to produce this result, so obviously called for by 33 Norsa, Kev. viii. pp. 633, 634 ; Ct. of Paris, I7tli July 1877 (J. v. p. 271), 2nd August 1883 (J. xi. p. 63). This is in accordance -with Swiss practice. See on that subject Feigen- winter (p. 65) ; he combats the practice from the point of the universality of bankruptcy. One should, however, notice the express provision of the German Ordinance, § 198 ; according to it in the case of bankruptcy an independent sequestration is issued in connection with every public trading company, even although there are none but persons living in Germany concerned in it. *• See the report of the Commission of the Italian Congress. Atti del Congresso; p. 21, note 1. 1024 bar's international law. [§ 481 practical necessities, to make the assumption, which in itself is untenable, that a public copartnery is a juristic person. Now, since the bankruptcy must be set on foot at the place where the creditors were entitled to expect that their claims upon the bankrupt estate would be satisfied, it follows also that the bankruptcy has nothing to do with the nationality of the bankrupt, that the place where it is to be set on foot must be the bankrupt's domicile,^' and that it is the actual domicile, the domicile which is accepted as the foundation of the ordinary ;fonin domicilii, that must be taken, and that we should not insist upon the domicile being an " authorised " domicile, if, as is the case in France, a distinction is taken between " authorised " and " unauthorised " domiciIe.3« This is the universal opinion, and, as regards this latter distinction, it is at least the ruling opinion. Indeed, since the point of interest here is not so much the voluntary subjection of the party to any particular system of law, as the actual security of the creditors, we may hold a long-continued residence a sufficient foundation for jurisdiction : provided that this resi- dence is of such a character as to wear to other persons the appearance of a centre of business life.^'' Wharton (§ 794) goes so far as to say that " there can be as many bankruptcies as there are countries in which a man does business." If, however, we attempt to treat the operation of bankruptcy in connection with the doctrine, of general incapacity to act, the results we shall reach will be, as we have already noticed, quite different. If it shall happen that any one has more than one domicile, it follows from what has been said that there may be a bankruptcy at each of them ; priority will not, as Feigen winter thinks (p. 59), decide where it is to he.^ '' For Belgium, see Humblet (J. yii. p. 87). A judgment of the Ct. of Neufchateau reported ■fay Dubois, Kev. vi. p. 280, recognises the competency of the court of a foreign domicile to declare a Belgian subject bankrupt. Glasson, J. viii. p. 126 ; de Rossi, Esecuzione, p. 138 ; Carle Dubois, § 23 ; Fiore, Fall. p. 15. In the common law of Germany, as in the laws of England and of the United States, no doubt on this point can possibly exist, as in these systems all questions of private law are regulated by domicile, and not by nationality. The grounds on which domicile is supported by modern French and Italian writers, viz. that the question here is one of " ordre public " or of police matters " loi de police," seem to be too vague. Domicile is undoubtedly regulative in the law of Austria. See Starr, Eechtshillfe, p. 73 ; Vesque v. Piittlingen, p. 485 ; Supreme Ct. of Austria, 11th Jan. 1887 (J. xv. p. 285). As regards England, see Foote, p. 302. 36 Ct. of Paris, 23rd Nov. 1874 (J. ii. p. 434). '' See Trib. Comm. Brussels, 7th Deo. 1885 (J. xiv. p. 360). By the English Bankruptcy Act of 1883 (46 and 47 Vic. c. 52), § 6(d), a creditor is entitled to present a bankruptcy petition in England, if "the debtor is domiciled in England, or within a year before the date of the presentation of the petition has ordinarily resided or had a place of business in England." [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 unincorporated company, if any partner has resided or had a dwelling-house in Scotland.] ^ Feigenwinter, no doubt, argues in the first place from the expressions used in the Con- cordat which is recognised in a great number of Swiss cantons. But his reasons seem to go ■deeper. § "^82] TKADING DOMICILE. IO25 If it were so, this mischievous result would follow, that the most importunate creditors would obtain this practical advantage, that the whole process of bankruptcy would be carried through in their neighbourhood, and it might very well happen that we should thus start a premature race for bankruptcy, to the great prejudice of all concerned. At the same time, too, we should have to make all the more careful enquiry as to the true seat of the domi- cile, since from the answer given to this question would flow quite other consequences, than if a plurality of bankruptcies were sanctioned for the different business centres of the same person situated in different countries.^* It is plain that, if there were such an exclusive and universal court, there would be a larger crop of divergent decisions from the courts of the different countries concerned on the question of domicile. For these serious consequences would dispose each court to stand up for its own jurisdiction. Instead of the unity and universality hoped for, we should have all the more insoluble conflicts. On the other hand, however, just because our subject is to set up a forum, where business is really carried on, we canilot allow any fiction to come in place of a true domicile or business centre.*" International law, therefore, will not allow a bankruptcy process, in the case of a limited company, to be set on foot at the place where that company is as a matter of form constituted ; it will take the place where the real centre of its business lay. The nominal seat of the company has no importance as a matter of international law.*^ Thus, again, the " ilection de domicile '' for any particular business, as it is termed, cannot give the jurisdiction which is required in this case.*^ Eelations of the Coukts inter se where there is a Plurality of Bankruptcies. Position of the Creditors. Special Agree- ments. 5 482. If we were in a position to dispute the jurisdiction of any foreign court, which had the conduct of a bankruptcy, we should, of course, not comply with any requisition which it might make,*^ and in the same 39 This latter view is the view generally taken in France, Belgium, and Italy. See Trib. Seine, 11th March 1880 (J. vii. p. 135) ; Ct. of Ghent, 21st Sep. 1876 (J. iii. p. 305); Gianzana, ii. § 240, and the judgments of Italian courts cited by him. See, too, supra, § 47. *• The view that a business centre of any kind is enough to warrant a special bank- ruptcy procedure in the German Empire lies at the bottom of the German Ordinance in bankruptcy. *^ Feigenwinter, p. 36. *2 It may, on the other hand, be right in conformity with the English statute of 1 883, to lay down that the jurisdiction of the court in which a person has once had a domicile shall not cease at once upon that domicile being changed. The creditors must have time to advance their claims in that/omm, if any property of their debtor remains in the State. The English statute provides that the jurisdiction to which we have already referred shall last for a year after the English domicile is given up. « See §§ 6, 16, 17, of the Franco-Swiss treaty of 1869. 3 T 1026 bar's INTERNATIONAL LAW. [§ 482 way the trustee named by an incompetent court will not be recognised in any other State as having a title to take legal proceedings.** Here, then, the question, whether the bankruptcy has been set on foot at the domicile of the person, or in the place where his trading establishment has its seat, is not without importance. The trustee appointed at the place where a trading establishment has its seat, to take charge of the bankruptcy there, can only recover in another State assets that are undoubtedly connected with that establishment : the rest of the assets must be left for the bank- ruptcy which has been set on foot likewise at the bankrupt's domicile. But it by no means follows that there must be several bankruptcies in relation to the same person, because there may be. The attitude of the creditors who are interested will really settle whether there are to be. If the creditors who have a right of action, i.e. who have a forum for their claims, in some other country than that of the domicile, do not apply for a special bankruptcy, then the trustee appointed in the domicile can iugather any assets which he finds in that other country to enlarge the general estate. And even if a special procedure had been set on foot, there is nothing to prevent the creditors, who are concerned in it, from making, by means of a voluntary agreement, the estate forthcoming, as part of the general mass. It may be that it will be for the interest of such creditors to renounce their rights to a special process and special execution, if they hope by taking part in the general process which is pending in foro domicilii, to get more than they would get in a separate process. For of course it is impossible, and would offend all equitable principles, that a creditor should take part in several processes of bankruptcy against the same debtor simultaneously, to the same effect as if each of his appearances in these respective processes were his only appearance. The English practice follows a safe and sound course in refusing to allow any one to take part in an English bankruptcy, unless he throws into the estate in England anything which he may have got in a foreign . process. We might indeed go a step further.*^ The creditor should not only throw in whatever dividend he has got, but should make up any sum which he has lost to the estate, e.g. lost to it by the comparatively severe expenses which he has caused by setting a separate bankruptcy on foot for himself alone. - . . „ Lastly, no creditors should be allowed to appear in any such special bankruptcy except those who can show that there is a jurisdiction in. the courts of the country in which it depends to deal with their claims. Of course, nothing will justify us in putting foreign creditors at a disadvantage, and to do so would properly be described as a measure that would injure « This deduction is properly made in a judgment of the Ct. of Orleans, 27th March 188£ (J. xii. p. 178) ; Clunet [ibid. p. 179) does indeed question the soundness of the decision. But although it is quite conceivable that the trustee in this country may be remiss in gathering in the assets, that is in my opinion no sufficient reason on which to base a different doctrine. < « Piggott, p. 86 ; Toote (J. xi. p. 231) ; Westlake, Rev. vi. p. 398. Of course, an exception will be made of anything realised by the sale of foreign real property. § -±82] EQUITY OF SPECIAL BANKRUPTCIES. 1027 the credit of the country that did it.^8 But a'special process of bankruptcy, IS simply a kind of arrestment with a process of distribution attached^ to it. In place of applying for a special bankruptcy, creditors who have claims, that establish a forum in that country may join in obtaining arrestments, and thus secure for themselves a prior opportunity of execution. But if a creditor cannot show that he has any special foruw. in this country, then, as in other cases, he must have recourse to the general forum of the domicile.*'' The priority thus given to claims which have their origin in this country, in any special process which may be set on foot here, is not in reality unfair. We say, no doubt, that the idea of bankruptcy requires that the whole property of the bankrupt should be impledged to the whole body of creditors in common. But if a man has a kind of business centre in country A, is it not quite reasonable that creditors, who gave credit with reference to that business, should rely upon the security of the property that actually is in the country ? Or must they first make sure that their debtor, whose property here seemed to afford them abundant security, has not, it may be in some very distant country, a multitude of other creditors, whose participation in his bankruptcy here will swallow up that security ? Many creditors, on whom the law of this country, on grounds of humanityj confers a right of preference, without any real right over particular assets,*^ would be most cruelly disappointed, if, in following out some abstract theory of the universality of bankruptcy, we should uncondition- ally transfer the whole assets to the foreign court, by whose law no such right of preference is given. Thus we reach this proposition : the application by the trustee of a foreign bankruptcy for delivery of the assets in this country, or for arrestment of them, must be refused if the foreign bankrupt has a business centre in this country, whether by way of a manufacturing or trading establishment, or by the ownership of landed estate or of a dwelling-house. In addition, every creditor who has a right to invoke the jurisdiction of one of the courts of this country, is entitled, either to anticipate the application by a foreign trustee for arrestment of the bankrupt's property, by obtaining from the court arrestments on his ^ On the equality of native and foreign creditors in bankruptcy, see Bayer, Theorie des concursprocesses nach gemeinem recht, § 21. Decision of the English Ct. of Chancery, Kannreuther v. Geiselbrecht, 1884, L. E. 28, Ch. D. 175 (J. xiv. p. 212). The German Ordinance, § 4 (1) provides, "Foreign creditors stand on the same footing as native creditors.'^ But (2) reserves a right of reprisals against subjects of a foreign State and their legal represen- tatives. But no such reprisals can be put in force except upon an ordinance of the Imperial Chancellor, with the concurrence of the Federal CoyxnciliBuiidesrath). *' In England, there has been much debate on the question whether an English oi'editor can be directly compelled to throw into the English estate what he has got in a foreign process. See Piggott, p. 332; Foote, J. xi. p. 231. If, however, we look not so much at the nationality of the creditors, as at the circumstances whether the claim arose abroad, and was intended to be satisfied abroad, we cannot help recognising some conhection between the doctrine represented in the text and the tendency of the English law. ^' See, e.g. the German Ordinance, § 54 (1) and (4), as to the preferential rights of servants; doctors, and druggists. 1028 bar's interkational law. [§ 483 own account, or, within a certain time after arrestments have been used by the foreign trustee, to come into court to get rid of them.« This latter course he°can only take if there is positive law permitting him to do so, a law which is recommended with the view of protecting creditors who belong to this country.*" Moveable and Immoveable Pkoperty. Formalities of Eealisation. Operation of the Modern Jurisdictions in respect of Property WHICH HAVE BEEN CAPRICIOUSLY SeT UP, OR AT LEAST EXTENDED. Obligation to make the Surplus of any Special Process forth- coming. I 483. No distinction should be made between moveable and immoveable property in bankruptcy. Moveable property within the territory is just as much and just as little subject to the sovereign authority of that territory as real property is ; and any such distinction is, in a practical view, discouraged by the large value which the moveable property, e.g. the fittings and implements on a farm, or the contents of a warehouse, may possess. The formalities of realisation, however {suhhastation), in the case of real property, are of course regulated by the law of the place where it is, that law being in this respect a coercitive law, and specially adapted to protect the interests of the creditors who hold real securities. It is possible that similar provisions may have to be considered in the case of the sale of moveables by auction. So far as possible, however, the rules, of the court in which the bankruptcy depends, with regard to realisation, should be observed. On the other hand, the sound view is that the regulations which we have deduced as logical and legal inferences are impossible, if the arbi- trary polypus-like jurisdictions which every modern system of legislation has introduced as seemed good to it, without regard to principle, are to remain in force. One of these, which creates special confusion in bank- ruptcy procedure, is § 24 of the German Civilprocessordnung.^^ If every creditor, without exception, can sue in any country in which he can find *' The old Prassian Bankrupt Ordinance contained a provision of that kind (§ 294). It was dropped because it seemed to be inconsistent with the principle of agreements between trustee and creditors. But this latter principle cannot claim absolute validity in the case of a separate bankruptcy process. '» A creditor belongs to this country, if the courts of this country have jurisdiction to deal with his claim. In Austria (see PUttlingen, p. 486), the property of a foreign bankrupt *hich happens to be- in Austria will be surrendered to the foreign bankruptcy. On the other hand, they proceed ott the Engelhardt drew a sketch for an international agreement. Eev. xx. pp. 592 and 610. 1096 bar's international law. [§ 525 belong to it within its own territory. Gabba/^ who takes the same view as we do, very soillidly remarks, that (at least in Italy and in Germany) the courts themselves would not have any power themselves to seize papers belonging to executive officers of the Government, or to compel these officers to seize them. How can it be maintained that they have this power as against the official of a foreign State? One obvious exception to this rule, and it is the only one, is pointed out by Gabba (p. 241), viz. if the consul is appointed, by the country that appoints him, to be the representative of some private person, e.g. as curator ahservtisp Consular treaties often provide for appointments of the kind. But, if he alleged that a consul, acting altogether outwith his official duty, or within the scope of his office as representative of some private interest, has concealed some document in the inviolable archives of the consulate, then the civil courts would put in force the measures, which are applied in other cases, where an allegation is made that a person has concealed a paper or any other object which he is bound to make forth- coming, in some unknown place. The consul will be compelled either to depone on oath, or to undergo an action of damages, or, in so far as he represents a private person, run the risk of losing a process which he is carrying on for him, and of being liable to the party he so represents in damages. The same rules must prevail in the case in which the consul has a diplomatic character, and so enjoys the privilege of extra-territoriality. But in that case no direct compulsitors, such as fine or imprisonment, could be used to compel him to depone on oath. General Estimate of the Privilege of Extea-tereitoeiality. § 525. The privilege of extra-territoriality was attacked so early as the end of the seventeenth century,*^ in more modern times by Fiore,^' and most markedly by Laurent.^" Laurent thinks it is unnecessary, and there- fore mischievous ; he also pronounces it to be a serious and plain invasion of legal order, which must of necessity be the sa.me for all, due to old inflated exaggeration of the idea of sovereignty, and the deification of princes ; it is, he thinks, all the less defensible as different theories on its true import are so widely divergent one from another. We "must concede that these attacks are justified in so far as the =« Rev. XX. p. 239. 5^ a judgment of the Ct. of Poitiers, 4tli November 1886 (J. xiii. p. 702), rests upon the distinction between a consul acting in his official capacity and as a private person, e.g. as representative of a captain or ship-owner. "* So in theacademic disputation : "i)e legato sancio, non impuni," by Fr. V. de Liideritz : " avspiciis Henrici de Cocceji," Franc, ad Viad. 1699; this is a disputation mentioned by Bynkershoek. '' Sir. pubb. intemaz. ii. § 1231. "» iii. §§ 10 and 11, 19 and 25 and 80. § 525] EXTENT OF PRIVILEGE. IO97 defenders of the doctrine of extra-territoriality postulate, as the principle upon which they are to proceed, that the sovereign power of the foreign State is embodied in the ambassador, a principle from which they draw the most extravagant conclusions ; e.g. they make this absurd inference, that it is an insult to the foreign State, if our courts of justice dare to bring an action to the notice of the ambassador, i.e. simply ask him to meet the demand made upon him. There is no such embodiment of the foreign sovereignty as that in him. But within the limits, which we have felt ourselves constrained to draw, the privilege has good grounds of its own on which to rest. Apart from the privileges of sovereigns, there are in most countries privileges, which shield particular persons, e.g. members of Parliament, from some of the diligences of civil process.*^ The right of the private citizen [the creditor] must in these cases, in respect of the public position which the obligant holds, give way to the public interest in the free and uncon- strained exercise by the debtor of his office, or of the mandate entrusted to him by his fellow-citizens. It is exactly the same with the privilege of an ambassador, but his privilege, on account of the peculiar character of his ofBce, is peculiarly important, and is consecrated by an universal tradition. This privilege was in old days more necessary than it is now, but even at the present day it is not to be dispensed with. The administration of justice is no doubt in civilised countries, in form at least, independent. But as a matter of fact it may not be so everywhere to the extent to which the language of the law asserts it to be, and there is no absolutely trustworthy guarantee against the force of national prejudices and unreasonable national hatred, which it is impossible for the individual to estimate. The ambassador of a nation which is disliked must, therefore, on that account hold a very dangerous post. Again, apart altogether from such prejudices, miscarriages of justice are specially likely to occur in cases in which international relations are under consideration. It is not always easy to distinguish the public capacity of a representative of a foreign power, from his capacity as a private individual, as the process in Florence recently showed [J. XV. p. 53]. But lastly, in our view, the question is one solely of exemption from direct compulsitors against the person of the ambassador, or against things that he is in direct need of for his support and the discharge of his ofi&ce. If this limit is observed, and the privilege is not extended to questions of jurisdiction in the narrower sense, it does not involve any very serious invasion of the principle of equal justice to all, and, at the same time, it gives the ambassador sufficient protection. The only difficulties are those that may arise, as they do in all departments of international law, from the « See e.g. German Civilprocessordn. §§ 785, 786, as to the immunity of certain persons from imprisonment in case of refusal to depone on oath that he has made a full surrender of his property, and see § 812 as to the incompetency of arrest of the person in security in the like 1098 saH's international law. [§526 new-fangled jurisdictions, with as many arms as a polypus, which, however, do not merit international recognition. But if it is proposed to extend the privilege beyond the limits of these indispensable requirements, it will be exposed to violent attack, which will be founded on good reason, and from time to time will meet with success. One special risk, which is involved in too wide an extension of the privilege, and which is most prominent when we extend the privilege so as to give a general immunity from jurisdiction in the fullest sense of the word, is plainly this — that if it is so extended we must introduce some restrictions. But each different State will have a different theory as to these restrictions, since they depend upon matters of process law, which, again, is different in each State. The want of uniformity which will thus be produced will give the whole doctrine an appearance of caprice and of chance, and will in turn make men think that it may be dispensed with altogether. The theory which refers important limitations of this kind to an express or to a tacit renunciation of the privilege, ruins entirely the whole principle. In our view, the privilege is closely limited to the measure of its necessity, but, on the other hand, should be to that extent protected by all alike, and be entirely beyond renunciation or prorogation. General Extension of the Exemption to Officials who are Employed within a Foreign State. § 526. But, of course, we must not extend too far the circle of persons who are entitled to rely on the privilege of immunity from the imperium of the territory in which they happen to be. It would, e.g. be a mistake to give this exemption to consuls, who are carrying on business for themselves, except in so far as the inviolability of their archives is concerned. It may, however, seem questionable, whether the exemption is not also to be accorded to other officials and commissioners of a foreign Government who are present in our territory with the knowledge and consent, or even perhaps on the invitation of our State, although they have no real diplomatic character. This question has become one of special practical importance in view of the technical international conferences and congresses, which now take place so frequently. In the case of Schnaebele,®^ in which questions were raised about the arrest of a French frontier policeman, who had entered German territory in his official character, Stoerk*^ finds ground for the proposition that a principle was involved which had always existed, but till it was brought to light in that case had been latent, viz. that persons, who in their official capacity set foot on a foreign country, ^' See Clunet, Questions de droit relatives d, V incident franco-allemand de Pagny, Paris 1887, and the extract from this paper in J. xiv. p. 386. Further, Oalvo, ii. § 935. This case raised other interesting questions, mainly of criminal law, which cannot be discussed here. «= V. Holtzendorff's Handb. ii. p. 661. § 526] LIMITATIONS OF THE PRIVILEGE. 1099 enjoy a certain amount of exemption, which is not necessarily to be brought, and indeed cannot, to all intents, be brought under the rule of extra-terri- toriality, which has been elaborated for another condition of things altogether. Now, it is quite certain that the presence of such a person, either by invitation or by parmission, cannot be used to arrest him in pursuance of a plan prepared beforehand, cannot be made a trap for him. Accordingly, we must assent to the despatch of the Chancellor of the German Empire' of 28th April 1887, in connection with the Schnaebele affair. It set out that parties crossing the frontier, in consequence of official agreements between the officers of two adjoining States, must be considered as having taken place under the tacit assurance of a safe-conduct. Any other treatment «* would seem in fact to be at variance with the lona fides of international intercourse,®" and this we must maintain not only with reference to frontier officers, but with reference to all representatives of foreign States invited or admitted to our State, without regard to the nature of the public affairs which they have to transact or to represent. It seems, however, dangerous to go further, for plainly the ordinary course of justice must not be broken through unnecessarily ; while in the administration of civil affairs there is no reason for further exemption, if we exclude the application of arrestment to found jurisdiction, and the jurisdiction which is set up by § 24 of the German Civilprocessordnung, which we have so often mentioned. It would be better to remove these altogether, and that, in our view, is only a question of time. The full measure of exemption must be reserved for the higher representatives of the international intercourse of Governments : in their case, we have other guarantees that international law and international courtesy will be observed, than we have in the case of any official or agent of the State selected at random. The purely logical conclusion that every person who acts or who appears in name of a foreign State can claim international privilege, must not lead us astray.®* It must not go so far as to allow the country to swarm with persons®^ who claim immunity from the legal compulsitors of the territory. NOTE CCC ON §§ 509-526. PEIVILEGES OF AMBASSADORS BY THE LAW OF ENGLAND. [The distinction taken by the author between jurisdiction to pronounce judgment, on the one hand, whereby a claim may be constituted by decree, ^ Among frontier officials, if any other rule were followed, it would soon result in constant brawls and bloody conflicts. ^' Commissioners, sent by a State to ensure its being well represented at an international exhibition, have, however, no diplomatic character : as such they are not in any sense extra- territorial. See Clunet, Questions de droit relatives & V exposition universelle internationale, 1878 (J. v. pp. 81 et seq. and 197 et seg.). •^ I cannot go so far as Zorn (p. 82) and Stoerk (p. 662), who hold apparently that each and every representative of a State, while in foreign service, is to be treated as a diplomatist. «^ Let it be remembered that wives, children, and servants share the privilege of extra- territoriality. 1 100 bar's international law. [note GCO from which process ambassadors are not to be protected, and the com- pulsitors of the law from which they and their goods are to be protected, is not recognised in the law of England. The protection it gives is much fuller than the author proposes to allow, and the theory on which it seems to proceed is the representative charficter of the ambassador, who must be free from all the jurisdiction of the courts of this country, just as his own sovereign would be : it is the respect paid by one Sovereign State to the independence of every other Sovereign State. (See Brett, J. in the Parlement Beige, 1879, L, E. 4, P. D. 129.) The common law is declared by the statute 7 Anne, c. 12. It proceeds on the preamble that " several turbulent and disorderly persons having in a most outrageous manner insulted the person of . . . Ambassador Extra- ordinary of His Czarish Majesty Emperor of Great Kussia ... by arresting him and taking him by violence out of his coach in the publick street, and detaining him in custody for several hours in contempt of the protection granted by Her Majesty, contrary to the law of nations and in prejudice of the rights and privileges which ambassadors aud other publick ministers authorised and received as such have at all times been thereby possessed of, and ought to be kept sacred and inviolable. . , . " § 3. And to prevent the like insolences for the future, be it declared . . . that all writs and processes that shall at any time hereafter be sued forth or prosecuted whereby the person of any ambassador or other publick minister of any foreign prince or State authorised and received as such by Her Majesty ... or the domestick or the domestick servant of any such ambassador or other publick minister, may be arrested or imprisoned, or his or their goods or chattels may be distrained, seized or attached, shall be deemed and adjudged to be utterly null and void to. all intents, constructions and purposes whatsoever." In the case of Taylor v. Best (1854, 14, C. B. p. 487), in the course of the discussion Mr Justice Maule made several observations which tend in the direction of the doctrine of the text, viz. that it might be lawful to constitute a claim of debt' against an ambassador by decree, so as, it might be, to avoid prescription, although it would not be lawful to follow up the decree by diligence of any kind. Campbell, C. J., however, in the later case of the Maddalena Steam Navigation Co. v. Martin (1859, 2, E. & E. p. 94, 28, L. J. (Q. B.) 310), alludes to these observations, and holds them not to be sound, ■while the judgment of the court affirmed that a public minister " cannot, while he remains such public minister, be sued against his will in this country in a civil action, although such action may arise out of commercial transactions by him here, and although neither his person nor his goods be touched by the suit." The Chief Justice, in concluding his opinion, says "it certainly has not hitherto been expressly decided that a public minister duly accredited to the Queen by a foreign State is privileged from, all liability to be sued here in civil actions, but we think that this follows from well-established principles" (pp. 115, 116). The transaction in question in that case was a transaction in shares of I 527] JURISDICTION AGAINST FOREIck SOVEREIGNS. I lOI a limited company, and the tenor of the Chief justice's opinion might seem to give some countenance to the idea that a different rule might be applied if the ambassador were engaged in trade. That that is not so, however, seems certain from a passage in the opinion of Jervis, C. J., in the case of Taylor v. Best, already referred to, upon which Chief Justice XlJampbell certainly did not mean to go back. The passage is as follows ^p. 519) : " If an ambassador or public minister during his residence in this country violates the character in which he is accredited to our Court by engaging in commercial transactions, that may raise a question between the Government of this country and that of the country by which he is sent, but he does not thereby- lose the general privilege which the law of nations has conferred upon persons filling that high character." Then, again, the grounds on which the judgment in the Maddalena case is put — viz. the impossibility of bringing any one into court without some measure of coactio, which is inadmissible in the case of an ambassador, and the practical impossibility of service, since no officer may enter his hotel, for that is foreign territory, and therefore inviolable, while he must not be stopped on the street, since he may be going about the affairs of his master, the foreign sovereign — show that all actions, no matter what the subject matter, are intended to be excluded. ~ It is, however, observed that there may be a specific remedy by injunction to remove an ambassador from a house which he has hired and refuses to quit, when bound to do so. In the recent case of Macartney v. Garbutt (1890, L. E. 24, Ch. D. 368), it was held that a British subject, accredited to Great Britain by a foreign Government as a member of its embassy — English secretary — is exempt from the local jurisdiction of his own country, unless he has been received by the British Government upon the express condition that he shall be subject thereto. But one who has obtained his position as member of an embassy mala fide, and with the view of evading his creditors, will not be protected by the court (Cloet4, 1st June 1891, Times L.E. 56.5). The power of ambassadors to celebrate marriages, and to allow them to be celebrated in their houses, has been discussed supra, note on p. 362, and again p. 374.] III. JUEISDICTION OF COUETS OF LAW OVEE FOEEIGN SOVEEEIGNS AND STATES. Intkoductoey. Older Theory (Bynkershoek). § 527. It is a complicated question to determine what powers must be conceded to the courts of law over foreign sovereigns and foreign States. Modern law makes a distinction between the personal rights of a sovereign, and those which he exercises as the representative of the power of the State. Courts of law may, therefore, have entirely different powers in H02 bar's international la IV. [§ 527 questions with a foreign sovereign in his character as the owner of a private fortune or estate, from those which they have against him in so far as he represents the power of the foreign State. The older writers know nothing of this distinction ; they speak simply of judicial measures, which are directed against foreign princes. Thus Bynkershoek, in his treatise deforo legatorum, deals at the same time with the question of judicial jurisdiction over foreign princes. It is plain, from what he there says, that he looks upon the privileges enjoyed by foreign ambassadors as the more important in a practical point of view, and as the leading subject ; whereas his discussion of those of foreign princes takes second place, although, no doubt, he says that they have at least the same privileges as their representatives the ambassadors. This, as we have already said, is historically accurate, inasmuch as the inviolability and extra-territoriality of ambassadors is an indispensable requirement of public law, while there is no such requirement for their sovereigns, unless they act as ambassadors. The exalted position, however, enjoyed by monarchs, and the possibility that, at any moment they please, even although they bring in their train a responsible minister, they may deal with foreign States as the representatives of the States over which they rule, has made it a rule, now of long standing, that the privilege of extra- territoriality, which grew up out of the inviolability of the ambassador, should be allowed to foreign sovereigns also.^ It is superior to the ambassador's privilege, in so far as it, by general consent, is not nowadays dependent on any previous notification of the coming of the travelling sovereign, and is not to any extent conditioned by the consent of the other State, which has no rights save to turn him back at the frontier or to expel him. Bynkershoek, then, holds no doubt at all that courts of law can entertain an action against a foreign prince. Not only, says he, does it frequently happen that princes voluntarily submit themselves to particular courts for the decision of some legal difficulty (c. xxiii.); it is also certain that princes are treated just like private persons in questions as to contracts made by them (" ipsos principes dum contrahuni haberi privatoi'um loco "), c. xiv. A.S regards the brocard, so often cited in later days, upon this subject, "par inparem non habef jurisdictionem," Bynkershoek says just the reverse (c. iv.), viz. that as regards " lona," an " inferior " may exercise jurisdiction over a superior. The rule "par in parem non hdbet jurisdip- tionem " can in truth only be applied to criminal jurisdiction, and closely considered is perhaps only meant to apply to princes holding direct from the emperor. He only held the person of the foreign prince, his retainers and his whole furnishings, which he can use for himself and his train of retainers, as exempt from arrestment and execution. No doubt, he says, policy may suggest that an arrestment, which is asked for against a foreign ^ Logically, too, we must concede it to the presidents of republics, unless, like the Burger- meisters in the free towns of Germany, they are merely chairmen of a body of colleagues, in whose hands the supreme administration of the State rests. §528] JURISDICTION AGAINST FOREIGN SOVEREIGNS. IIO3 prince, should not be facilitated, but, apart from thatj " nihil est quod arrestum et jurisdictioTiem impediat." Bynkershoek then adduces a series of cases in which, in the seventeenth century, arrestments had been used and processes carried on in the Netherlands against the Elector of Branden- burg, the Eepublic of Venice, the Duke of Mecklenburg, the King of Spain,^ and the Duke of Courland, and adds, "possum plurima exempla addere qum ml mm, memoria inciderunt." Lastly, he tells of a process in the eighteenth century against the King of Prussia, remarking that the King did not feel himself aggrieved so much by being cited to the process, as by the publicity of the citation (per campanam ut fit) ; he appeared, however, and appealed, taking no protest against the jurisdiction.^ The discussion closes with the remark, " adeo res in mores transivit ut tanquam de re liquida, nunc quidem inter omnes videatur constare." No doubt, however, he gives the warning that things of very small value should not be arrested, or a prince cited on such an arrestment, a warning which we might fairly extend even to the case of private persons. Bynkershoek has no hesitation in holding this to be an abuse of the summum jus,^ or, as we should call it, a judicial inter- pretation of the law. Influence of Modeen Development of Constitutional Law. § 528. The question of jurisdiction over foreign princes has been subsequently developed. In the first place, there has been gradually introduced a distinction between the private property of princes, or of the princely family, and the property of the State. "When this distinction first became part of legal doctrine, it was no longer possible to hold the prince and his property responsible in a foreign country for the debts of the State, or conversely. The enquiry on the point was often difficult, ' In this case (1668) they went so far as to lay arrestments on ships of war. No doubt the States General busied themselves to release the ships. The letter of the States Genera], of which an extract is given by Bynkershoek, gives no indication that they had found anything contrary to law in the arrestment. 3 I have thought it right to reproduce somewhat more exactly the exposition by Bynkers- hoek, who is rightly regarded as a high authority on this question, for Bynkershoek, who certainly should be read carefully, although often cited, is not so much studied. Gabba, in his paper, "Dela competence des tribunaux d, I'igard des souverains et des Etats Grangers" (J. xv. p. 180), reproduces Bynkershoek's view incorrectly, although he gives the actual words of the conclusion of the chapter, where Bynkershoek speaks merely of arresting worthless articles, and then invoking the jurisdiction of the court for a sum of very considerable amount. He takes, as an instance of such a worthless object, according to the values of that day, an eq^uus, or "any nag you can lay hold of," as we might say. It is not true to say, as Gabba represents, that Bynkershoek does not speak of arrestments which persons, not subjects of the country might use against a foreign prince. Since Gabba has read Bynkershoek inaccurately, I cannot complain that he has paid no attention to my paper in J. xii. p. 645, and disposes of me very shortly (J. xv. p. 189). * Compare § 433, note 103, for what is there said as to § 24 of the German Civilpo-ocess- ordnung. 1 1 04 bar's INTERIM ATIONAL LAW. [§528 and although there were comparatively few courts that were completely independent, yet, on the other hand, princes had often good reasons for limiting the recourse of their subjects against other princes: they, too, might some day be sued in a foreign country, and, of course, the proverb " manus manum lavat " has always a certain amount of force. If it could be asserted that there was no jurisdiction at all against the foreign sovereign, then the sovereign could in majorem gloriam represent his own conduct in allowing actions to proceed against himself in the courts of his own country, as a gracious concession, which in certain circumstances he could recall. Further, the theory sprung up that the State, as such, could make bargains in such a way that the other contracting party should submit himself to the good pleasure of the administrative authority of the State with which he contracted. As legislation and administration began to diverge one from the other more sharply in point of form, this divergence exhibited itself most distinctly in the permission which the legislature by special enactment ^ would give to the administrative authority to conclude bargains, especially to contract loans, and to amounts which were formerly unknown, under quite definite conditions. It was clear, that if all the creditors in such cases could assail the property of the State with real diligence, the machine of the State, which is always embracing more and more, might be brought to a standstill or thrown into confusion, to the prejudice of the public. These large debts, contracted with an indefinite number of creditors on equal conditions, on the authority of special statute, all exist under the reservation that the State shall be in a position to satisfy them, and the supreme administration of the State, in the shape of legis- lation, will finally determine whether the State is in that position. The State has a kind of beneficium competentice to a large extent : it must in the first place support itself, and the payment of debt only stands in the second line. Demands against the State thus directly subject to its own legislative authority will give rise to diligence or to jurisdiction in the stricter sense, only so far and so long as the legislature, which in this matter has a sovereign power of disposition, permits it. But it is plain and this is the only point of interest — that there can be no idea of sub- jecting one State to the jurisdiction of another. Where claims are thus made dependent on the good pleasure of the debtor, it cannot be maintained that that debtor is subject to the jurisdiction of a foreign court. Nor does any jurisdiction arise ratione materiae, even although the conditions on which local jurisdiction depends, are satisfied, even although e.g. the ^ In my first edition (pp. 614, 615), in which the subject is only shortly dealt with, I certainly did not deal fully with this special case, which occurs so frequently nowadays, of an obligation which is in theory contractual, but which in fact is from the first placed at the mercy of the legislature. I think that so keen-sighted a writer as Gabba is might have been able to dis- cover my meaning, especially if he had remembered the historical development of the circum- stances which regulate the case. § 528] FOREIGN SOVEREIGNS AND STATES. II05 payment of the debt or of the interest on it should be undertaken by the State as debtor in some foreign country at the option of the creditor.® But, again, it is obvious that no one can ever propose to make the authority of a foreign State answerable iu our courts for what it has done in the exercise of its supreme authority, to make it liable in damages for what it has done in the exercise of its sovereign rights. The pro- visions which regulate jurisdiction in matters of private obligation have no application here, because the sovereign power of the foreign State has to be considered in that character, and not as the holder of private rights, or as the subject of private obligations. Nor have the foreign courts in such matters jurisdiction ratione materiae? It is the discretion of the individual State, and nothing else, that can control the fashion in which that State shall manage its own sovereign rights. Thus, for instance, the courts of State A can never entertain an action directed against State or sovereign B,^ or against any official, now in office or retired, of that State or sovereign, founded on the consideration that this State, or its official or representative,^ in the exercise of its supreme authority within State B, has injured some one in person or in property. No doubt, the authority of the State may, even within its own dominions, transgress public law, e.g. by wilful ill-treatment of foreigners. But in such a case there would not be any such transgression of law as could rbe pleaded before the courts of another State. For transgressions of public law satisfaction can only be demanded by the means known to that law, viz. diplomatic interference by the State to which the sufferers belong, or, in the last resort, warlike intervention by that State. i" On these points there is no discussion in Bynkershoek or in any of the older writers. This blank is explained by the fact that, by the older law of procedure, trespasses upon legal rights taking place abroad were referred exclusively to the foreign tribunal, and could not, because all the elements for local jurisdiction were wanting in the courts of other countries, be dealt with in any of these other countries. But in more modern times, as we have frequently had to notice, a multitude of jurisdictions have been somewhat capriciously set up, by means of which, sometimes in the interest of its own subjects only, a State withdraws legal questions from the cognisance of the judge to whom, in a certain sense, they naturally belong. These jurisdictions make 6 In my view, the establisliment of an office for payment in the foreign country does not create i forum contractus there with international validity. 7 See to this effect Laurent, iii. § 46. . ^ ^, 8 See Westlake-Holtzendorff, § 181, and the judgments of the English courts against the Kine of Hanover, there cited [Duke of Brunswick v. King of Hanover, 1844, 6, Beav. 57, and 2 House of Lords, Ca. 20] ; Beach-Lawrence, iii. p. 429. See, too, PhiUimore, u. § 109, on the Duke of Brunswick's case ; see also Foote, p. 140. . _ _ 9 This principle was not disputed in the process quoted by Beach-Lawrence, 111. p. 430, against the Englishman M'Leod. But M'Leod had, in addition to his other offence, trespassed on the territory of the United States. . , „ , , -nr i. 4. e i» See the extracts from the despatch of the Secretary of the United States, Webster, of 15th March 1841, given by Beach-Lawrence, ut cit. 4 A II06 BAI^S INTERNATIONAL LAW. [§529 it possible for a person to submit to the determination of the courts of his own country delicts committed in a foreign country, or legal relations which in substance belong entirely to that foreign country, and that even where foreigners are concerned. Let us remember the jurisdictions pro- vided by § 14 of the Code Civil and § 24 of the German Civilprocessordnung. Now, although such excesses of jurisdiction may not be considered matters of much moment where private persons are concerned, there is an instinctive feeling that such fanciful jurisdictions, created by the State at its own hand, cannot be set in motion against a foreign power. Then, too, the execution of a judgment against a foreign power gives rise to difficulties. If there are no assets in this country on which to do diligence, then it may be apprehended that the foreign State will decline to implement the judgment; while, on the other side, we observe that it is not every article belonging to a foreign Government that happens to be in this country that can be made available for diligence. The Modeen View. Incompetency of Foreign Courts, as a Matter OF Principle, except the forum rei sitce and the forum of Voluntary Prorogation. Tradition and communis opinio as THEY ARE REPRESENTED TO BE AND AS THEY REALLY ARE. § 529. In this way we explain the theory," which is nowadays often proclaimed with great confidence, that actions against foreign States and sovereigns must not be entertained at all by the courts, and that it is entirely incompetent to give judgment against foreign Governments in the course of a process. Convenience recommends this principle. If there is so distinct a prohibition, we need apprehend no mistakes and no abuses in the conduct of the tribunals, and we shall have no occasion to consider the susceptibilities of a foreign Government, which might possibly be hurt by the fact of an unfavourable judgment being pronounced against it. Of course, there is no lack of reason to support this comfortable theory, and many are attracted by it, because it invests the sovereign power with the mysterious splendour of inaccessibility, and to a certain extent with- draws it from the general legal bond that unites all men. But the reasons given are in truth, as we must concede to Laurent, but weak. In many instances writers have not taken the trouble to read the older authorities with care, or to notice on what state of facts this or that judg- ment was pronounced. Whereas we know that judicial sentences are often sounder in their results than in the reasons given for them: in drawing up the statement of these reasons, the judge who gives the leading opinion, and draws up that statement, frequently pays little heed to some " Droop's paper in Eassow and Kunzel's Beitragen zur Erldnterung des Deutschen lieckts, Tol. xxvi. pp. 289-316, makes a special attempt to establish this theory by judgments and citations of authority. § 529] FOREIGN SOVEREIGNS AND STATES. 1 107 expression or to a general proposition which he uses ; those who concur with him pay even less. Lastly, one author, who has no desire to go deeply into the reasons of the doctrine, appeals to the authority of another, and so the tale of authorities, which is represented as constituting a tradi- tion, grows apace. Let us examine a little more closely how this tradition stands. Bynkershoek's view we have already ascertained. For instance, at the end of last century the French minister for foreign affairs, in 1772,' raised the question of the competency of arrestment against foreign sove- reigns i^^ so, too, did the Prussian Allgemeines Landrecht, and one of the most eminent and thoughtful writers on this subject, G. F. v. Martens, says, in his edition of the Pricis du droit des gens (i. § 147), dated 1789 :— " Zes Mens d'un Souverain dtranger absent mcssi Men que ceux qui appar- tiennent plus proprement h son 6tat ou & ses sujets sont soumis a la jurisdiction et par consequent a la saisie." It is quite true that he speaks of an absent sovereign only. That is explained by the circumstance that he has previously spoken of the case of a sovereign who is present in the territory, and has conceded to him, and to the things that are actually being used by him, the privileges of extra- territoriality. We cannot complain of any want of precision in his declaration that the foreign State and the foreign sovereign are in the same position as the foreign subject. All the same Martens is generally passed over when authorities on this point are enumerated, or included amon"- those who exempt foreign States and sovereigns from all jurisdiction. Kltiber, in § 50 of his VolJcerrecht, does not indeed speak specially of jurisdiction over foreign States: he does, however, treat of jurisdiction as regards foreign sovereigns, and simply holds that the forum hereditatis, rei sitcB, and arresti are competent, in so far as both the opposing parties are looked upon merely as private persons. This latter proposition is decisive : it shows that Kltiber applies to States what he says of sove- reigns ; for sovereigns, in so far as they do not represent the State or are identified with it, are, as regards property and patrimonial suits, merely private persons. Heifter, too (vi. § 53), does not for a moment think of asserting that one State is not subject to the jurisdiction of another in patrimonial questions.^ On the contrary, he remarks that the sovereign is, " as regards private estates and succession within a foreign territory, and also for private obligations which fall to be performed there," subject to the legal rules of that foreign territory. The whole context shows that in the phrase "legal rules," rules of jurisdiction are included. At the outset 12 Printed in de Martens, Causes eiUbres, ii. p. 112, and in Philliniore, ii. p. 628. ^' Nevertheless, Ad. de Cuvelier, in his new essay, cites Heffter, without hesitation, as an authority for the opinion that there is absolutely no jurisdiction over foreign States, and v. Holtzendorff (J. iii. p. 432) says, in spite of the fact that Byukershoek, G. F. v, Martens, and Kliiber are, as we have seen, of a directly contrary opinion: " Les autoritds du droit international sont unanimes d. reconnaitrc qu'aumin Etat ne pent exercer des actes de jurisdiction ifis-a-vis du Pouvoir Souverain d'un autre Etat." See, as against this unfounded assertion of Holtzendorff, in particular v. Martens, i. p. 319. iio8 bah's international law. [§ 529 of the passage Heffter attributes to the sovereign, " immunity from acts of sovereignty in every shape, and in particular from the jurisdiction of a a foreign State : " he is speaking of the personal immunity of the sovereign from diligence. So, too, Demangeat (note on Fcelix, i. § 213) pronounces in favour of the jurisdiction of the courts. He asserts that, if foreign Governments are empowered to enter into relations of private law with private individuals, it will be an intolerable privilege that these private persons should be disabled from obtaining justice from the courts. Demolombe (i. § 25) expresses himself, as is right, with more caution : he describes the axiom of the incompetency of the courts against foreign Govern- ments as modern doctrine in which he concurs. This era was opened in France by a judgment of the French Court of ■ Cassation of 22nd June 1849, cassing a judgment to the opposite effect pronounced by the Appeal Court at Pau.i* The reasoning on which this judgment is supported has been the principal armoury ^^ from which the weapons to resist any juris- diction in the courts of law have been drawn. Demangeat has already criticised this reasoning most excellently. The first argument used is that of " sovereignty," which requires that one State should be independent of another, whereas jurisdiction requires a relation of dependence. But, as Demangeat remarks, there is no idea of any such independence as the essence of sovereign power, where we are dealing with the State simply as endowed with certain private rights. We add to that that there is no such thing known as the absolute independence of any State. In our view, all States are, in the first place, subject to international legal order ; and, in the second place, it is quite impossible for a State, which takes its place in the legal order of another State, although in respect merely of some relations of private law ^^ — as is the case when it owns land or enters into contracts there — to remain absolutely independent of that other State. Whether and to what extent the one State must hold the legal arrangements of the other as applicable to its transactions and property situated there, is a matter to be determined not by the blind worship of a theory, but by a real practical consideration of facts, and by the necessities of existence. Every one must undoubtedly confess that a State cannot be exempted from the operation of the law of a foreign country upon the substance of any relations of private law which that State may have assumed within the territory of that foreign country : from this it seems to follow, without prejudice to the inviolability of certain persons and certain things as guaranteed by the doctrine of extra- territoriality, that the State must be subject to the jurisdiction of the " Extracts are given by Demangeat on Foelix, i. § 15. 1^ So, too, the tribunal of Brussels of 3rd Nov. 1870 declared quite generally for the incompetency of the courts (Rev. ii. p'. 153). ^^ Cuvelier (Rev. xx. p. 120) says that it is impossible to distingish in the State & persona with relations of private law. For the value of this argument, I shall simply appeal to the fact that Cuvelier will on this point have the whole of German legal authority against him. Cuvelier refuses to admit any relations of private law for the person of the sovereign. That goes even beyond the proposition, " L'Etat, c'est moi," § 5^9] FdkmGN SOVEREIGNS AND STATES. II09 courts of that country to the same extent: for, so far as possible, the application of the law of a country to the substance of any legal relation and the jurisdiction of that country should go pari passu. In the second place," it is said that every one who contracts with a foreign State is bound to know that he is subjecting himself to the juris- diction of that State.'isia Demangeat very justly declares that this is simply a petitio principii. It might just as fairly be maintained that the foreign State which acquires property within the territory of our State, or concludes contracts with private persons there, subjects itself to the jurisdiction of the country so far as these are concerned. But if we turn to the most modern authors, we find that the position of the alleged unanimity with which, as it is said, all reject the jurisdiction of courts of law over sovereigns and States, is very peculiar. The unanimity substantially rests upon the fact that it is a very common habit for authors to read the works of others somewhat cursorily. Among such authors we may certainly count Fcelix (i. § 213), Eolin Jacquemyns (Eev. vii. p. 714), Westlake (§ 190), Field (§ 637), and even more emphatically, Demolombe v. Holtzendorff (J. iii. p. 341), Droop, and, most recently of all, Gabba and Cuvelier ^o (Eev. xx. p. 109). Phillimore quotes the opinions of others rather than sets up distinct principles, so too does Calvo (iii. §§ 1460 et seq.), and Bluntschli '■'i expresses himself so cautiously that he cannot for certain be counted as an adherent of the doctrine that jurisdiction is to be absolutely negatived in the cases now under discussion. On the other hand, besides Laurent, Spec (J. iii. p. 329), Fiore (Dir. Ptcbb. i. § 500), Maori (pp. 230, 231), and, in a more marked way, V. Martens,22 Weiss ^s (p. 886), Gianzaua (ii. § 103), and v. Heyking (p. 127) ^' Gabba (J. xv. p. 187) has reproduced Demangeat's counter-arguments unfairly and without fully understanding them. •" "We pass over the argument based upon § 14 of the Code Civil as immaterial to the general doctrine of international law. " Cuvelier (p. 123) finds it a great evil that, according to the doctrine advocated in the text, the French State cannot apply its rules for the administration of justice abroad. I can see nothing unjust in refusing to the French State any privilege in matters of jurisdiction against the subjects of another State in connection with a legal question which in its essence belongs to that other State. ^'' (P. 127, cette iricompHence est absolue). ^ Bluutschli says : " As the holder of private property, as a private creditor or debtor, the sovereign is not in any sense the representative of the State, he is not a sovereign." All he says is that the courts as a rule will not entertain any civil action, and in particular any action for debt, against extra-territorial persons. ^ I cannot explain how Gabba (p. 185) reaches the statement that v. Martens declared against this jurisdiction. Exactly the opposite is the fact (see i. p. 317, of the German edition) : he says, "As a sovereign, the foreign prince is exempt from civil jurisdiction ; as a private person, he is not : e.g. in the event of the claim preferred against him having some connection •nith the immoveable property belonging to him in the foreign country in question, or arising from some commercial undertakings on his part." Further (p. 319), he says, " the decisions ■we have cited show that the courts, although they will concede a privilege to the public character of a sovereign or a government, are far from inclined to concede a general exemption from civil jurisdiction. It may be very difficult, in this or that case, to prove whether the prince has dealt as a private person or as the holder of the sovereign power ; but, as practice shows, it is possible to maintain the distinction. 23 Weiss says: "C'estune question cilebre que celle de savoir si un souverain (tranger peut mo BAR'S INTERNATJONAL LAW. [§ 530 adopt the view that, as regards the purely private suits of foreign States and sovereigns, the local courts have jurisdiction. Arguments and Counteb-Akguments. § 530. As a matter of fact, the principle of an absolute want of juris- diction against foreign States and sovereigns involves a serious outrage upon the general legal conscience. So far Laurent is right. A foreign Government claims in this country all the rights of a private person : it buys, trades, and acquires property here, and if it thinks that any advantage is being taken of it by any private person, it appeals to our courts. But in the converse case it exclaims at once : " Against me there is no right of action in this country : any one who thinks he has claims against me, may follow me abroad, and although the goods I ordered but did not pay for are still in this country, you shall seek justice in my own courts^* (it may be over seas), if, indeed, I should be of opinion that claims of the kind can be brought before the courts at alL" Those who defend this principle find themselves constrained to make exceptions. The first is of all real actions affecting real property. In this case, as in the case of ambassadors, it would be intolerable if action were not allowed. But it is also held to be permissible for the court to find the foreign State liable in expenses, and generally to give judgment against the foreign State if it has voluntarily, expressly, or by implication subjected itself to the judgment of the court: as a general rule, too, on this principle of prorogation it is, as a rule, held that the court has jurisdiction against a foreign Government reconventione?^ But in these exceptions we find the condemnation of the principle. The recognition of prorogation per expressum might possibly be regarded as reconcilable with the principle : but the recognition of prorogation by implication cannot. In the latter case, there is no question of a reference to the concrete will of the individual ; the subjection of the party to the itre soumis A la jurisdiction de nos tribunaux. La jurisprudence semble V avoir resolu par une distinction. Lorsque le souverain est actionni en France d raison d'un acte gouvernemental qu'il ne pouvait /aire que comme souverain, le tribunal Francais est incompetent, . . . au eon- traire, si dirig4e contre le souverain Hr anger est d'm-dre exclusivement privi, si c'est comme personne privie qu'il est actionni, les tribunaux Francais en connaitront valablement." -* The Government of the Sovereign Congo State has its seat in Brussels. Of course, it concludes numerous contracts in Belgium with Belgian merchants. Cuvelier (p. 128) proposes to refer his countrymen, if any differences should arise on such contracts, to the Congo for determination of the question, e.g. whether goods, still in Belgium, delivery of which has been refused for some fault not admitted by the merchant, must be accepted or not. Fiat jvstUia, pereat mundus I At the same time, he confuses the question of the extra-territoriality of the Congo Government and its ofSces, etc., with the question of jurisdiction over contracts con- cluded by that Government. I, too, think that there is no doubt about this extra-territoriality. The Congo Government would certainly take no advantage from the doctrine so warmly recommended by Cuvelier. 2= See e.g. Gerbaut, § 169 ; Westlake-Holtzendorff, § 182. §531] FOREIGN SOVEREIGNS AND STATES. II 1 1 jurisdiction is inferred from the nature of the subject. Again, too, it is the nature of the subject, and that alone, or, if the expression is preferred, natural justice alone, that will support the condemnation of the unsuccessful pursuer in expenses, if he has not expressly agreed to be liable in expenses in the event of his failure. It will not do to give any one such a privilege as will enable him, by raising an unfounded action, to put any one he pleases to great cost, and to remain exempt from liability to make these costs good. What we term a voluntary prorogation of the liability to pay expenses ^^ is merely a form of this principle. Indeed, it may be said that such a prorogation is a conditio sine qua non of appearing as a suitor. But we may go on to maintain that submission to the courts of the country is a conditio sine qua non of the right to make bargains, or to acquire property in our territory. If we make an exception of implied submission, we may effect a great deal, more even than if we threw the principle altogether aside. The exception of reconvention, which most admit, is an illustration of this. But if we propose to limit the exceptions to cases of express prorogation, then a foreign Government might protest against being found liable in expenses, if it had lost an action, but had not expressly bound itself to make good expenses in the event of non-success. Upon the whole, if we ask for express prorogation, we shall land ourselves in technicalities which will make legal intercourse hardly possible, because they will offend against bona fides. The Cokeect Principle. Jurisdiction and Want of Jurisdiction ratione materice. § 531. In our view we must distinguish in this subject, as well as in reference to ambassadors, between jurisdiction in the stricter sense, on the one hand, and executorials on the other. As regards jurisdiction, foreign States or Governments are subject to the courts of the country in so far as the nature of the subject requires, but no further. Taking the nature of the subject as our guide, the courts are incom- petent ratione materice, if an obligation has been created by some act of the supreme authority of the State, e.g. if a person has been in the service of a foreign Government, and proposes to sue it for arrears of pay, or for pay which has been refused. Although it may well be that this act of the foreign Government by its own law will give the official right to sue for the salary that has been promised, still the act which gives rise to this right is an act of the sovereign power, and not an act of ordinary private intercourse : nor can any transactions that may, previously to the action, 2» Of course, too, a foreign State is bound to find caution for expenses, if foreigners generally, or subjects of the particular State, would be required to do so. We do not need to assume any submission for this purpose. That a suitor should find caution is a condition precedent to the exercise of his right to sue. ilI2 BAt^S INTERNATIONAL LAW. [§531 have been had with the official, make any difference in the matter. Nor will the courts have any jurisdiction founded on locality against a foreign Government, as we shall see. Jurisdiction, too, ratione materiw will be excluded likewise in cases in which there is to all appearance a contract obligation, e.g. an obligation arising on a loan, but in which the Government, placing the contract under some special enactment, reserves to itself right to modify its bargain by means of special legislation, if it should come to be unable to implement it. In such a case, even although no such modifying legislation — legisla- tion, i.e. in fact announcing the partial, bankruptcy of the State — has not yet been passed, no action can be raised in the courts of this country against the foreign Government. So, too, an action in the foreign courts is excluded, just because the State, in choosing the solemn form of a statute or ordinance for laying down the conditions of the bargain or bargains, indicated that its obligation was of an entirely different character from an obligation of ordinary private law. This point of view is specially applicable in the case of the great loans of the present day, which rest on some special financial statute, and are thrown open to public subscription, with obligations payable to bearer.^^ But neither will the courts in such cases have any jurisdiction in respect of locality.^* We might have to determine this point otherwise, if these States gave some special right of pledge to its creditors over some article that actually was in another country. By this very act it would have declared that the article so given in security was not absolutely necessary for its own maintenance, and would thus have sanctioned an action which would be altogether an action on private rights. On the other hand, an action against a foreign State, and of course, too, an action against a foreign sovereign personally, may be entertained rationcB materiw if the foundation of the action be an act belonging to the ordinary administration of the State in which the foreign Government has acted not jure imperii but jure gestionis, as it has been well expressed.^* Such is the jurisdiction that is e.g. assumed in an action arising out of a sale of guano, made by a foreign Government (0. de Gand, 14th March 1879, J. viii. p. 82). The distinction is generally approved of in an interesting judgment of the Appeal Court at Lucca on 14th March 1887 (J. XV. p. 289)., ^ See to this effect a judgment of the English Court of Chancery, of 25th May 1869 (J. iii. p. 125) [Smith v. Weguelin, L.B. 8, Eq. 198] : and in particular the admirable judgments of the English Court of Appeal on 18th April 1877 (J. v. p. 46) [Twycross v. Dreyfus, L.E. 5, Ch. D. 605]. The point here insisted on is that in such debts the obligation is a debt of honour, in so far as the indispensable necessities of the State must have precedence of it. See C; de Bruxelles, 4th August 1877 (J. v. p. 515) ; Trib. de Cairo, 3rd March 1877 (J. iii. p. 177). ^ Gianzana, ii. § 103, is sound on this point. ^ See Gianzana, § 108, who takes a very sound distinction between jurisdiction in respect of locality and in respect of subject matter. § 532] LOCALITY AS A FOUNDATION FOR JURISDICTION. III3 Jurisdiction based on Locality. § 532. As regards local jurisdiction, a foreign Government is by the nature of things, subject to : — 1. The /orztm rei sitae, for actions connected with immoveable property. As v?e have said, this is admitted on all hands. Since it is generally maintained that the /onim rei sitm is exclusive in such matters, any other view would lead to an absolute denial of justice. 2. The forum hereditatis, in so far as the foreign sovereign or foreign State is concerned in any succession. This is laid down by all who deal with this point.^" It may also be asserted that a foreign State or a foreign sovereign, that has fallen heir to an individual, and is sued for a debt of the deceased, must answer just like any private person. If any one desires to be the legal successor of a citizen of this country, he cannot choose to take up this position in so far only as it confers rights on him ; he must take over the liabilities also, and that, too, under the eye of the court of this country. Is it proposed that the creditors of a succession in this country should look quietly on, while the succession, which is liable to them, is carried off to another country, and have this comfort only, that they may seek justice at a distance and under serious disadvantages ? 3. It is subject to every jurisdiction, which it has itself recognised for the case on hand, be it that it has instituted the action, or be it that it has not pleaded want of jurisdiction in the court. That is required by hona fides, and the individual character of the sovereign or his representative need not in such circumstances be invoked to determine the consequences of such recognition of the tribunal. Thus the sovereign or State whose action has been thrown out will be found liable in expenses like any other party. So, too, for instance, a foreign sovereign will have to emit an oath, if any other party would have to do so, to gain his case; and, again, he will be liable to exhibit documents in the same way as any other party.^i It is impossible in a civil process to suspend the rule as to equality of weapons,^^ and to allow a party to entrench himself, when it will suit him, behind the privilege of a foreign sovereign. No direct compulsitor will be used. If a foreign°sovereign considers it to be inconsistent with his dignity to take some°step of process that is required of him, he may surrender the object of the action, or allow himself to be found liable in a payment of money. 30 See Westlake, § 193, and the judgment of Lord Langdale quoted there. [D. of Bruns- wick V King of Hanover, 1844, 6 Beav. 57.] In that judgment expression is given to the theory that all that will be done will be to give the extra-territorial person the opportunity of claming his rights. (See Beach-Lawrence, iii. p. 421.) By such an argument as this a very wide jurisdiction might be conferred in all cases m which the obiect of the suit or of the diligence happened to be in the country. . , .^ 4., rv r «t,o,-„ „ ^ Thus an English court required the King of Spam to emit an oath [King of Spain v. Hullet & Widder, 1833, 1, CI. and F. 348J ; and the Queen of Portugal was he d to te 'lable to produce documents [Rothschild .. Queen of Portugal, 1839, 1, Young and Collyer, 594]. See Westlake Holtzendorff, § 181, and note ; Phillimore, u. § 113. S2 So, too, Foote, p. 103. 1 1 14 bar's INTERNATIONAL LAW. [§532 or delivery of some article. The same thing, of course, holds in cases in which the jurisdiction of the court is assumed without any voluntary prorogation on the part of the foreign sovereign or State. 4. A foreign government or sovereign is also subject to the forum contractus, but only to the extent already (§ 423) laid down, i.e. only in cases in which the whole affair on both sides was intended to be worked out and fully disposed of in that country. As we have already shown, a declaration ihzft payment should be made at some particular place in the country is not enough by itself. To that limited extent, however, th.& forum contractus satisfies the lorui fides which international intercourse demands, and this leading principle of the law of nations, perhaps the most essential of them all, must be respected by a foreign sovereign, or by a foreign Government. It has generally been laid down, that if a foreign Govern- ment carries on a commercial business in any State, by means of a separate establishment,^^ it is to that extent subject to the courts of that country.^* It cannot be suffered that any one, be it a foreign State, should contract obligations as a merchant or manufacturer by transactions that are to be carried through at the place where his trading establishment is situated, and should then be able to declare that liis trade-creditors must seek their rights in a distant foreign country. According to the principle we have already laid down, it is obvious that the foreign State must be subject to the jurisdiction, and it requires no special rule to make it so ; the forum contractus is set up with international validity. No doubt Westlake, § 190, says : " Foreign States and those persons in them who are called sovereigns .... cannot be sued in England on their obligations, whether ex contractu, ex delicto, or quasi ex contractu." But here one must remember, that originally the law of England traced the authority of the court to judge in any case to service within the jurisdiction, i.e. to a personal submission by the person through his actual presence in the territory, a condition which can, of course, never be present in the case of a foreign State or foreign sovereign. Accordingly, an exception has been made in practice in the case of certain maritime actions in rem in which personal service is not required. Since the modern law of procedure in England tends to lay less weight on the consideration that the defender has been personally served with the action within the territory, and to refer jurisdiction less and less to the possibility of using compulsitors at the moment at which action is raised, we may expect to see the rule laid down b)' Westlake as a principle of law very soon riddled with exceptions from all sides. For it is certain that the law of England is familiar with the distinction between private trade and an act of the sovereign, or of the supreme power as such. This appears from the judgments of famous English judges such as Westlake cites in § 191. ^ Such eases may occur, when a Government within «, dominion of another State under- takes contracts of carriage, or sells mining products. ^ So Bluntschli, § 140, note 2. See the note in Westlake-Holtzendorff, § 180, and the extracts there given from decisions, which seem to rest on this principle. § 533] EXECUTION AGAINST FOREIGN SO VEREIGNS AND STA TES. 1 1 1 5 In fact, Alexander (J. v. p. 36) asserts, in accordance with the exposition of the law given by Lord Langdale in the King of Hanover's case [D. of Brunswick v. King of Hanover, 1844, 6 Beav. 39], that a foreign sovereign, who carries on trade in England, is subject to English jurisdiction quoad hoc. Questions of Execution. § 533. But in disposing of jurisdiction in the narrower sense, we have determined nothing as to execution or diligence, or as to the lawfulness of an arrestment. Diligence and also arrestment in security are excluded from everything to which the privilege of extra-territoriality extends.^^ As a rule, too few articles are reckoned among this privileged class. They are not confined to things which a foreign monarch is carrying with him, or has in his own use, and to foreign ships of war. Everything beloAging to a foreign Government which, by agreement between the States, is set apart for the purposes of that foreign G-overnment,^^ e.g. a custom house, with its furniture, even although one State, as is some- times the case at frontier stations for the convenience of travellers, takes its custom-dues within the territory of another State, is invested with a limited extra-territoriality, i.6. an extra-territoriality in the sense that they must not be withdrawn from the uses to which they have been allowed to be put. Things,^' however, which are also available for conveyance in the interests of private persons, and do not belong to the foreign State itself, ^but to private persons or limited companies, do not necessarily enjoy exemption from arrestment and diligence.^^ Neither do mail-boats, which ^5 Thus the ambassador's hotel could never be taken in execution upon a claim of debt. ^ But they must at the moment be in use for these purposes : it is not enough that they are to be so used at some future time. E.g. arms or cannons which have been bought in this country, so long as they have not actually been taken into use by the military authorities of the State, are simply goods, open to be arrested, and the fact that some one, be he even a military official or officer, has taken delivery of them, cannot be regarded as use by the supreme authority. V. Holtzendorff (J. iii. p. 433) overlooks this : he seems to hold that the arrestment of cannon packed up as goods is equivalent to an attack on the army. ^ Things sent by private persons to international exhibitions are not extra-territorial : they, are not so, even if the customs officers of the State in which the exhibition takes place treats these objects, sent from a foreign country, as if they were still in their own country. Such things are subject to arrestment and to execution : the creditor, by paying the duty on them, may remove them from the exhibition, and so apply them in satisfaction of his debt. See Clunet's pamphlet, " Questions de droit relatives A I'exposition Univ. de 1878. (See also J. v. pp. 81 and 187.) The question, to what extent the directors of the exhibition can be ordered, to facilitate the arrestment of things exhibited in their buildings, to give them up, is a question of the local municipal law, and depends on the shape of the legal relation between the exhibi- tors and the directors of the exhibition (See Lyon-Caen, J. v. p. 446, and the criticism there of judgments given by the Austrian courts in a case of the kind). 38 It will, however, be a matter of convenience to allow the rolling stock on foreign railways to be free from arrestment, as is done in the German Imperial Statute of 3rd May 1886, on condition of reciprocity. This does not prevent its being attacked by bankruptcy, if the railway should become "bankrupt. See, too, the Railway Freight Convention of Berne, art. 23, §5. . . . '' Le material dr.schemins defer, ainsiqiielesoljetsrnoUKersquelconquesgeriiralemerii IIl6 BAliS INTERNATIONAL LAW. [§534 receive subventions from the State, but are the property of limited com- panies and managed by them.^* Credits belonging to a foreign Government in a bank cannot claim freedom from arrest. Such outstanding sums do not serve directly to keep the engine of the State going. Tor the most part they are intended for the payment of debts. Why, then, should they be withdrawn from the grasp of creditors ? It may be that such claims by creditors would cause a foreign Government inconvenience. But when a Government has such outstanding balances that can never be absolutely excluded, e.g. it will occur, if the bank, with whom the balance is lying, has difficulty in making cash payments. If the foreign Government has any further credit, it will be easily able to help itself ; for, as- has been already noticed, arrestments proceeding on claims in respect of great State loans are always excluded, since such claims can never be made good before foreign courts.*" Thus jurisdiction and execution, even against foreign Governments, are not absolutely excluded : but at the same time the provisions of the law of process, applicable to the case of foreign Governments, cannot be put in force in quite the same way against them as they can against private persons. Each case must be carefully considered, if it is to be properly dealt with, and it is quite possible that miscarriages may occur in the inferior courts, especially if, as, for instance, is the case in the German Empire, the study of public law, and in particular of international law, is lamentably neglected in the training of judges and advocates. But, never- theless, the view adopted in these pages will not present any difficulty in practice, if we couple with it the rule which we have laid down in another connection, that in cases of doubt the competency of the courts ratione maferice should be negatived, so that we may save all the rights of foreign Governments and sovereigns. contenus dans ct matiriel et qui appartiennent au chemin de fer, ne peuvent igalement /aire I'objet d'auaunesaisie sur un territoire autre que celui dont dipend le chemin de fer propriitaire, sauf le cos ou la saisie est faite d. raison d'un jugement rendu par I'auioriti judiciaire de I'Etat- auquel appartient le chemin de fer propriitaire." ^' The French Goyernment at one time concluded treaties with some of the Italian States for the exemption from arrestment of the mail-boats used by the post-offices of both countries, although they belonged to private companies and were administered by them. The matter is now regulated between France and the Kingdom of Italy by the treaty concluded in November 1875. (See the paper on the subject by Guillibert, Se I'insaissehiliU, dans les rapports internationaux, des navires affectis au service postal (J. xii. pp. 515-526). According to him it is necessary, to exempt from arrestment, that the line of steamers should receive a subventioD under special statute, and should be accurately described therein ; that it should provide a. regular postal service, and that the conditions of a true postal service should be observed by it. Under these conditions, he thinks that the ship is exempt from arrestment not merely in its ports of departure, arrival, and call, but in any harbour of the two States concerned, into whicli it may be brought by storm or by damage. *» Art. 23, § 4, of the International Freight Treaty of Berne, concedes immunity from arrestment to a balance belonging to foreign railway administrations, except such as may b& laid on at the requisition of the courts of the State to which the administration belongs. The circumstances of railways are not, however, of much use as analogies here, since they require constant balancing of accounts. 534] JUDGMENTS ON THIS QUESTION. Ill/ Criticism of Pkactice. Application of our Eules. § 534. A careful examination of judgments delivered on this subject shows us, as a matter of fact, that in very many cases in which jurisdiction was negatived, this was in our view, too, a sound result. That was so in the great majority of cases, which Droop, in his work to which we have referred, indiscriminately cites in support of his proposition that no such jurisdiction is allowable. They are claims of damages which have reference to some act of a foreign Government done in its capacity of supreme ruler, or actions arising out of State loans in modern times which are based on some special statute. This latter consideration was undoubtedly applicable to the case, which obviously gave rise to Droop's treatise. The coupons in favour of bearer, coupons of the Eoumanian loan, on which the arrestment applied for by the engineer Ziemer to the court of Berlin, and granted on the authority of that court, proceeded, were issued in virtue of a special statute of Eoumania of 1st May 1880. We can, therefore, approve the result of the judgment which was pronounced in 1882 by the Prussian Court, in the determination of the conflict which then arose between the courts and the administrative officers ; although we cannot assent to the reason given for it.*-"^ These reasons lay it down as. a proposition which will be universally recognised in the law of nations, that no State can exercise jurisdiction in reference to another State, excepting only in cases of voluntary sub- mission.*^ This exception is well calculated to show the weakness of the principle, even if the exception is limited to the case of express prorogation, a limitation which, on the grounds already explained (§ 530), seems inadmissible. If the . conception of a sovereign power excludes the possibility of one State being subject to the jurisdiction of another, even in matters of purely private trade, then a voluntary prorogation of jurisdic- tion is itself impossible. A State cannot dispose of rights which are •■•■ but takes lex loci contractus as rule in cases of contract law of America and other countries as to tendency of positive legislation on Continent to govern capacity by the contract ...... sound principle that of law of Scotland applicable to case of special incapacities applicable by general consent to cases of fraud . change of personal law will not affect transactions already concluded loss of capacity to have rights by reason of slavery by reason of criminal sentence or religious profession . by reason of entry into a religious order capacity of married woman . . • • • of married women to undertake securityship . of children to contract loans . . ■,.■....■ qi« 0,9 Rfii roo of persons to draw bills, ruled by lex loci actus under limitations 316, 338, 664, 692 , r n 1 ^ . • 666 et sea. rule of German law . . ■ • ■ 692, 693 693 695 695 291 548 540, 548 843 649 650 653 655 868 712, 715 40 40 72 46 36 28 85, 86 86 487 86 296-301 300, 301 303, 304 85, 301, 302 304-306 306 306 307 308 309-311 is alone 310 310 311, 312 law of 312, 313 313, 314 316, 336 317 318 319 et seq. 321-323 323 330-332 336 et seq. 337 II36 INDEX RERUM. Capacity — continued. capacity to marry, see Marriage. capacity to acquire rights in things regulated by lex rei sit(e capacity to dispose of property regulated by personal law different view in England and United States . capacity to take by succession, by what law ruled . . capacity to make settlement of British subject to make .... Caracalla, extension of Roman citizenship by Carrier, see Freight. Caution — capacity of married women to undertake obligations of . contract for ..... . effect of bankruptcy of debtor on cautioner's obligation . for expenses, see Expenses. Cession of territory — change of nationality by . . . privilege of option in such cases effect of, on independent persons case of Heligoland .... effect of cession of territory in execution of judgments Challenge of contracts, by what law ruled Church, courts of, to be recognised as much as civil Citation, see Procedure. Citizenship, see Nationality. Civil death in questions of succession . Coast, see Territorial Waters. Code Civil, founded on statute theory Coercitive law — idea of, as used by Savigny futility of this idea idea of, adopted by modern Italian School nature of , not allowed full force in all cases exceptional character of suggested formula for application of will control execution of foreign judgment Collation, doctrine of, in its international application Collision, see also Ship. of ships in harbours and territorial waters on the high seas .... jurisdiction to determine claims arising out of with foreign ship of war . Comitas — not true principle for international law inadequacy of, as principle for giving execution to foreign judgment Commercial Law — general principles regulative of . authority of commercial manager freight, law of ...... . Commission, see Procedure. evidence taken on, position of commissioner commission to take evidence according to law of England and Scotland Company — domicile of ....... legal capacity of . restraints upon ... ... 509 509 806 et seq. 813 816 U 336 et seq. 630 . 1041 18X et seq 182 et seq 185, 186 186 970 568 945 321 805 42 65 66 67 95 et seq. 95, 96 95-97 98 955 et seq. 826, 836, 841 717 720 928 . 1123 . 2, 77 942 645 et seq. 647 656 854 856 121, 122, 240 227 228, 229, 648 INDEX RE RUM. "37 Company — continued, conditions of recognition of, in Italy title to sue allowed to sue in England but special privileges not conceded rights in Continental States right to contract . limitations on contract, rights of . must be legal in its own country . may carry on business in country other than that where it is constituted jurisdiction over foreign, in England and Scotland foreign, on what conditions may be wound up in England rule for liability of members of , foreign, may carry on business in Great Britain . powers of, determined by law of domicile and of country where powers are to be exercised ...... rules as to foreign companies in Germany in France ..... other Continental countries taxation of ...... taxation of, in England, in respect of profits made there . taxation of coupons ..... effect of bankruptcy on, must be recognised abroad bankruptcy of company is at seat of its business . jurisdiction in Scots and English courts to wind up Compensation — competency of plea of .... . in bankruptcy Condictio indehiti ...... Confiscation, under what conditions it must be recognised Conflict of laws, inaccurate term .... Consuls — validity of transactions concluded before . validity of marriages before .... consular courts are courts of country to which consul belongs extra-territoriality of .... . archives of consulate Contracts, see Obligations. Convention of Berne, see Copyright. Convention of Paris, see Patent. Copyright — legal character of, a right of prohibition ..... 737, 738 result of this international law is that law of place of infringement will rule 739, 740 but author's right is also personal right ; personal law will regulate succession, etc 741,742 law of place of infringement will protect although no protection given by author's 229 229 et seq. 230, 231, 232, 239 et seq. 237, 239, 240 232, 242 233 et seq. 234 et seq. 237, 238 238, 239 240 240, 241 241, 648, 649 241 242 244 242, 243 244, 245 255, 256 256 256, 257 . , 1019 102.3-1025 1044, 1050 612 . 1035 642 510, 511 7 278, 279 362 et seq. 970 . 1095 . 1095 personal law period of protection. Shortest period selected by Convention of Berne retrospective effect of Conventions ? . . . ■ is protection personal or territorial 1 . . . . in case of unpublished works ..... right to double publication, how far recognised . Berne Convention on . . . . • • in photographs .....■• in photographs by British law . . . • • British law of copyright ...••• Corporations, see also Company — legal capacity of . 4 C 756, 744, 745 746, 747 751 752 753, 754 755 762 et seq. 759 765 761 c« seq. 227 ct seq. 1 1 38 INDEX RERUM. Corporations, see, also Company — continued. may be limited in extent ...... 228, 229 title to sue and to be sued . . . . 229 e< aeq. law of Great Britain as to foreign . . . . . 239 c< seq. Coupons — taxation of .... ... 256 e< seq. Coutumcs, territoriality of . . . . . . 23, 26 Curator — change of ward's domicile by, when ward minor - .... 119 provisional curator in case of death or disappearance, all courts have jurisdiction to appoint ......... 293 curator loco absentis may be appointed to administer the property of a person incapase in another country .... in case of maiTied women, rules for appointment of in case of lunatics ..... no second appointment necessary in Scotland rule as between England and Scotland recognition of foreign curator in England and United States right to guardianship determined by personal law of ward but foreigner may be guardian .... foreigner is not appointed in Scotland where primary or exclusive jurisdiction in Soots Courts ....... to what extent this doctrine is recognised in England obligation to act as curator depends on personal law of guardian guardianship in case of prodigals ..... not to be recognised when such a form of guardianship unknown law of Scotland as to recognition of interdiction of prodigal guardianship is the concern of State to which ward belongs requires no special authority to act in foreign State practice in England, Scotland, and America theory of separate jurisdiction as regards heritable estate special powers, on what law they are dependent . in England and Scotland .... right of ward to be restored .... nationality must in principle rule questions of guardianship so, too, in England ..... provisional guardianship in country of residence . in England and Scotland .... if ward changes his nationality, conditions of guardianship also change duties of guardian and powers of control dependent on personal law of ward other kinds of curatories ..... conflict of jurisdictions . . ■ . . appointment of, on Aereditas Jaceits Currency, rule for payment in {see also Payment) Custom — general, how far international law embodiment of . .5 iniluence of general law of ....... 85 Customs-duties, see Smuggling. Damages (see also Delict) due in consequence of dolus, aclpa, or mora of debtor 599, 600 result of accident ...... ... 600 jurisdiction in English Courts to award in cases of breach of contract or delict or accident in England ........ 939 D'Argentre .... ..... 35 Death- declarator of, regulated by law of succession .... 292 jurisdiction of court similarly regulated ...... 293 all courts have jurisdiction to set up a provisional curatory . . . 293 declarator of, universally recognised . . . . . 294 320 332 332 332 332 333 472 tion 473 211 478 480 473 474 333-335 476 334 336 i5Set seq. 459 460 461 462 «< seq. , 464 465, 482 466 467 479 469 480 147 i 475, 482 476, 477 477 844 571 INDEX RERUM, 1139 PAGE . 635 636 637 640 638 641 . 639 639 641 640 715 922 1129 1123 44 127, 155 771 e< seq. 772 773, 774 . 774 61 24, 806 DehellcUio, effect of, on nationality Deelarator.^^on of, not to be allowed so as to defeat tiue pursuer's right to select \.{, Delicts— 92 obligations on, ruled by law of place where act done . 87 act which gives rise to no obligation where it is done will not give rise to obli- gation elsewhere ... if sanctioned by lex loci actus claim is good, though rejected by 'lex fori law of England and Scotland requires both laws to concur place of act, how determined ... rule where act done in uncivilised country limit of liability fixed by law of place of act unless lex fori pronounces it unreasonable liability of shipowners for -delicts and quasi delicts of master delict as grounds of jurisdiction liability of foreign sovereigns for liability of foreign war-ships for Demangeat on Foelix Denization Designs and Models necessity for registration of succession in, and transference oi law of Great Britain as to Despagnet Uetractus jiis Diligence, see BUls and Execution. Disability, see Foreigner. Discharge, see Bankruptcy and Obligations. Divorce — obtained infraudcTn legis .... . 167 where one country assumes domicile, the other nationality as ground for juris- diction in ? . . . . ^ . . . . 208, 392, 393 capacity of divorced persons to remarry to be' determined by personal law, not by that of place of celebration ...... 35] 391 by personal law at date of marriage ..... 356, 357 391 but law of court which pronounced divorce to be regarded . . 390 391 divorce and permanent separation ruled by national law or law of domicile of spouses ... ••.... 381 as at date of action . . . . . 334 judge of nationality or domicile alone competent . . 382 parties cannot choose their own court ...... 382 locus delicti will not affect either jurisdiction or merits in divorce . 384, 385 residence will give jurisdiction for temporary remedies, e.g. separation . 380, 381, 384 rule where spouses have different nationalities or domiciles . . 385, 386 deserted wife does not follow husband's domicile . . . 118, 386, 403 but cannot, according to Scots or English law, convene her deserting husband in any new domicile acquired by her ..... 385, 386 where naturalisation or domicile obtained lor purpose of divorce . 888-390, 404 suggestion of international tribunal for questions of divorce . . 397-399 judge of domicile by law of Scotland and of England alone competent . . 400 and must apply his own law ... . . 400 due notice must be given . . . 400 /orwTOrfcZicfo'coOTWiissi, etc., now rejected in Scotland . . 400,401 domicile is domicile of husband .... . 401 except in case of the husband's desertion . .... 118,403 doctrine of matrimonial domicile . . . . 401-403 indissolubility of Catholic marriage in Austria . 404, 405 Documents, see Procedure and Locus regit actum. II40 INDEX RE RUM. regulated by Domaine puhliqwe ...... Domicile — origin of validity of law of . . . bearing of . . . . . couditions of .... . rule of, to be found in Roman law supremacy of, in England, etc. length of residence immaterial residence as a student will not give rise to character of intention required intention without/actem, will not give rise to intention may be supplied by legal compulsitor . domicile of an exile of a lunatic ..... domicile of officials and soldiers . Anglo-Indian ..... wife follows husband's, even if voluntarily separated not if judicially separated .... if deserted ? . . . domicile of child . of bastard . . . . minor cannot change .... change of domicile by a curator for his ward plurality of, and absence of all . cannot be plurality of, or absence of, where personal law may be more than one commercial domicile domicile of origin, strength of . domicile of companies and other juristic persons . change of, infraudem legis should domicile or nationality determine personal law ? theories of different systems nationality likely to prevail eventually . domicile necessary as an auxiliary principle where different particular systems in one State . applicable in certain doctrines of law conflict of two States, one holding domicile, the other nationality as a ground of jurisdiction . Donation — promise of . form of, is prescribed by the lex loci actus otherwise subject to personal law of donor recall of, subject to same law restrictions upon, also subject to it Dotalicium ..... Dowry, see also Husband and Wife — obligation for . prohibitions against alienation ol fundus dotalis Dramatic performances, see Copyright — Droits de mutation .... Droits de suite .... Druggists, preference of, in bankruptcy . Dumoulin Durand ...... Eichhorn .... Election, doctrine of, in succession Einigration, see also Naturalisation — tax on foreigners' . 118, 174, 385, 112 PAOE 780 20 1\\ et seq, 112 ct seq. 112 199, 202, 203 113 113 114 114, 115 115, 116 116 116 116, 117 117 117 118 403 118 118 118 119 119 ei! seq. 120 120 120 121, 122 167, 168 19Q et seq. . 196-198 203, 204 205 205 206 et seq. as regulative 208 912 630 et seq. 632 632 633 633 411 450 421 254 710 1027 34 75 . 48, 49 823 . 24, 146 INDEX HE RUM. II41 Emigration, see also Naturalisation — continued. conditions of . . . . . all citizens free to emigrate except in Russia ..... restrictions on, in respect of obligations to military service, etc. no operation beyond the territory declaration of intention to emigrate desirable England — relation of legal system of, to that of Scotland . English and American School — characteristics of . . . Entail ... ... Esperson .... Evidence, see Procedure. Exceptio non mimeratcB pecunioe ..... Exchange, contracts made on, to be ruled by law of rules as to rates of exchange in money payments . Execution, see Foreign Judgment. Executors, powers of .... ■ jurisdiction over ... . ■ lex rei sitae will regulate powers of jurisdiction of courts over, purely territorial all questions of administration by executors in Britain are territorial but title to claim administration depends on law of deceased's domicile payment of debts by . . . • • • Exhibitions, International, protection of goods at, from arrestment Expenses — foreigners' obligation to find caution for determined by lex fori caution required from person who is in substance pursuer rules for, in England and Scotland expenses of process for execution of foreign judgment Experts — evidence of, . • . . ■ ■ citation of foreign . . ■ • Expulsion — of subjects of State, cannot be carried out, if other States will not them . . • • • rules for expulsion and exclusion of foreigners of foreigners en masse of foreigners unknown in Britain . familiar on the continent of Europe Extra-territoriality, see also Ambassadors— of ambassadors of consuls . of other persons . doctrine of, in Britain 139, 140 145 et seq. 147 XiT et seq. 148 149 90, 94 , 45 533, 824 63 611 540 570, 571 831 832 836 e< seq. 837, 937 839 838, 839 837 1115 210 875 876, 877 879, 880 993 847, 859 854 receive 136 137 219 e seq. 224 e seq. 225 225 1069 6 seq. 1095 1098, 1099 1099 e seq. Family, see also Nationality, Naturalisation, Marriage, Husband and Wife, Parent and Child, etc. — g» law of, is given by domicile or home State ' " ' ' 040 law of, to be ruled by law of domicile or nationality . . . 6ii Federated States— different legal systems within .... • a^ ei seq^ law of nationality in . • • " 24 26 Feudal law, relation of, to international rules . • ^ " Feudal rights, by what law ruled . • • • ■ . e q. 1 142 INDEX RERUM. Fiore ..... . . . 63, 74 Fishery rights- foreigners may be excluded from . ... .218 Convention of 1882 as to . . .... 218 in territorial waters ...... 1064 Fisk, see also Smuggling — privileges of, not recognised beyond its own territory .... 237 forms required for fiscal purposes must be observed . . 281 this the law of England . .... . 289 is it so in Scotland ? . . . .290 Fcelix .... . . .43 Foreigners — originally outlaws ... . 11 not so amoug Germanic tribes . . 18,23 influence of Christianity on rights of . ... 23 disabilities of, in later Middle Ages . . .24 gradually disappear . . .... 33 equality of, with natives . . 210 et seq. certain disabilities of . . . . . 210 disabilities of, in England and Scotland . .... 210 retrogade movement in Russia ....... 212 distinction between civil and natural rights of, unsound . . . 212 213 rights of foreigners should not, as a rule, be made dependent on reciprocal treatment by foreign countries . • . . . 214 c< sey., 226, 227 rights of, to patents, etc. . .... 216 right of, to reside . . .... 219 expulsion and exclusion of . . 219 et seq. may be guardians ... .... 473 Foreign judgments, see also Jurisdiction — authentication of ... . . .865-868 recognition of . . ... . 848, 892 et seq. older theories as to recognition ....... 892 comitas as a ground for execution of . . . . 942 Author's theory ........ 894 et seq. distinction between recognition of res judicata and execution of foreign judg- ment . . . . . . . . .897et seq., 940 theory of execution of foreign judgment . . 993 994 execution of foreign judgment in Scotland . . 902 how far examinable ... .... 903 not examinable when pleaded as res y«(ficato . 904 executed in England without examination . . . 904 90.5 execution as between England, Scotland, and Ireland . . . 90.5 rales as to execution in principal States of Europe and America . . . 1002 nature of jurisdiction required of foreign court . . . . 905 et seg. , SiS leading principle is that courts of country whose law is to rule will adjudicate . 908 other kinds of jurisdiction recognised {see also Jurisdiction) . . 908 et seqt accessories of leading judgment, under what circumstances recognised . . 932 extent of recognition to be given to : does it embrace grounds of judgment ? 932, 933 power to reduce . . . . . 933 949 idea of oWig'afo'o created by . . ._ . . . . 943 execution must be given although judgment not final .... 947 competency of appeal stops execution in England . . . 904 948 execution of judgment pronounced in absence, or in contumaeem . 950, 963 execution of provisional decrees . ..... 952 errors in law no bar to execution ....... 953 but the public order and morality of our State must never be transgressed . 955 execution of "grossly unjust" foreign judgments . , . . 959 execution of judgments obtained by fraud .... 961 INDEX RERUM. "43 289, personal law of Foreign judgments, see also Jurisdiction — covMnutdL, enquiry into the merits inadmissible where defect in grounds of judgment .... adequate citation required where it is necessary to the jurisdiction objection arising after judgment ..... change in the parties to an action after judgment, and before execution method of execution is a question for the court of execution in case of cession of territory where territory occupied by foreign army case of different States of same empire reciprocity as a condition of execution retaliation a sound principle proposals for regulation of execution by treaty . form in which application for execution is to be made . no counter action admissible ..... original claim cannot be again advanced .... proposals for legislation as to execution .... expenses of execution process . . . . • burden of proof in procedure for execution recognition of, in matters of voluntary jurisdiction proposal for international courts of arbitration when execution refused Foreign law, sea Law. Foreign sovereigns, see Sovereigns. Form of transactions, see also Locus regit actum — Fiscal forms as much imperative as others law of England and of Scotland . form of transaction will not be effected by subsequent change in granter or grantee otherwise in case of testaments Forum — lex fori will regulate all questions of procedure will refuse to accept foreign law if immoral limits of this refusal forum arresti forum connexitatis . forum contractus . forum delicti commissi in questions of adxiltery in Scotland forum domicilii forum, non conveniens forum reconventionis forum rei sites Foundlings, nationality of Fraud— ., . ^ , , • change of nationality or domicile tnfraudem legis transactions concluded abroad im/ra«(^em Ze^ris • „^ n„;t, marriages in fraudem legis, difficulty of setting up this objection, and limits no^fraud, where domicile or naturaUsation acquired for purposes execution of judgments obtained by Freight, see also Ship- law of .•••■■ " obligations of a series of carriers . • • ■ international convention for regulating . • operation of common law obligations on ca,rriers . . liability of carriers by laws of England and Scotland . exclusion of liability of," what law will regulate the competency of this Fusinato . ..•••- 997 962 962 964 966 968 970 973 973 974 978 980 et seq. 984 986 987 989 993 995 . 1001 . 1010 912, 927, 936, 909, 926, 281 290 282 283 87 96 97, 98 940, 952 926 916, 935 932 934 931, 934 1009 927, 934 910 130, 131 166 et seq. 272 366, 367 of divorce 388-390, 404 961 656 et seq. 549, 657 658 659 660 659, 660 67 et seq. "44 INDEX RERUM. Gahclla emigrationis ..... Gaming, no action will arise from lex fori will reject action founded on tendency of English law to rule gaming contracts by law case of public lottery .... Gand . Germanic Baces — treatment of foreigners in, in Middle Ages idea of nationality among .... GlUck ....... Gbschen ... ... Gretna Green marriages ..... Guardian, see Curator. of contract PAGE . 24, 146 97 538, 539 564 565, 566 51 18 124 48 48 364 Heir, see Succession, Collective, Legitim — transmission of obligation to law of Scotland as to . Heligoland ..... Hereditas jacens, curator on . . . Heritable or moveable, what law will determine equality of property Hofjeker ...... House of Lords — authority of its decisions . requires no proof of English or Scots law . Huber ...... Husband and wife, see also Marriage, Divorce, Dower — wife's domicile follows that of husband . not if judicially separated . if deserted? .... nationality of wife follows husband does it follow every change he may make ? curatory of wife, rules for recognition of . personal relations of, determined by law of husband's domicile or nationality how affected by law of place of residence . ... law of France as to personal relations ..... law of England and Scotland determines them by lex fori obligation to aliment ..... relations of, as regards property ; personal law, general rule is it so in questions of rights in real property ? . is the personal law to be determined by domicile or by nationality ? theory of implied contract rejected .... rights of widow ...... lex rei sitce will in certain eases rule rights of property . lex rei sitce will prevail in questions of real property in England and Scotland . 413 effect of change in personal law on rights of property of spouses . . 412 et seq. by law of Scotland and England ....... 419 application of enactments of public policy . . 4x8 donations to be regulated by personal law . . 419 420 even in connection with heritage ...... 420 capacity to alter contract provisions or substitute contract for common law to be determined by personal law at the time ..... 421 marriage contracts regulated by law of domicile of husband 422 intention of spouses to be gathered from language of contract . . 422 or from actings ........ 422 but obligations of wife to be determined by law of own domicile . . 423 so also obligations of third parties ...... 423 the domicile which is [to rule must be domicile contemplated as domicile of marriage ......... 424 627 627 186 476, 844 506, 507 42 94 103 38 117 118 118, 174, 385, 386, 403 172 173, 174 330, 332 379 379 380, 381 381 380, 381, 913 405 etseq., 409 406 406-408 408 411 . 409-412 INDEX RE RUM. 1 145 Husband and Wife, sec also Marriage, Divorce, Dower — continued. rights on dissolution of marriage by death or divorce, by what law ruled effect of second marriage on property, by what law settled suggestions for legislation ...... what law will determine quality of estate so as to regulate rights of succession between, to be distinguished from community of goods Immorality, see Obligation — how far immoral institutions of a foreign country must be recognised . Incapacity, see Capacity. lucome-Tax, see Taxation. Indebiti condictio . . ..... India, system of personal laws in ... . Infamy, effect of sentence of, on capacity in a foreign country . Insurance — law of ...... . in England and Scotland ..... marine insurance, see Ship. Interdict — jurisdiction in questions of ..... . against an ambassador .... . . Interdiction, see Curator. Interest — limit of, not necessarily that of the law of the /or leading considerations as to payment of . maximum rate of . interest on real security on advances against goods on accounts current on mercantile loans interest ex lege .... interest on curatorial accounts due by mandatary .... moratory interest . process interest rules of law of Scotland as to International Law — Private, deiinition of . . independent of laws of particular States . or of treaty arrangements how far embodiment of general custom different titles for general principles at root of dnty of States, not comitas determines its problems by estimating each fact according to its appropriate law 81 • true principle of, is " nature of subject " . . • • • .82,83 general theory of ... . • . . 00 Interpretation — of contracts of marriage contracts of testaments Italian school ... criticism of ... • principles of, not exclusively pursued by best authors 424 et seq. 426, 427 427 et seq. 507 804 . 95, 96 642 . 19, 20 321-323 661 662, 663 931, 935 1088 . 95, 547 547, 578 et seq. 580 et seq. 683 583 583 583 583, 584 584 584 584, 585 585-587 585, 586 2 et seq., 9, 78 10 . 5,78 7 77 77 560-562 Jews — treatment of, in Middle Ages idea of nationality among . right of residence secured in Middle Ages 422 et seq. 828 et seq. 62 65 et seq. 84 27 124 136 1 146 INDEX RE RUM. 90, Judgments Extension Act 1868 Jura in re aliena . Jurisdiction — oyer foreign companies in England and Scotland . . . . . in respect of subject matter, determined by lex fori in respect of nationality ........ peculiar rule of French law ....... general principle of ecjuality of foreigners and natives in England and Scotland . general rule of jurisdiction, viz., that it rests with country the law of which is to be applied ......... other principles complementary of this . by reason of domicile . . . . exclusive competency o! forum rei sitae as regards immoveables . by reason of residence ....... in Scotland for forty days ... . . by reason of arrestment (?) . ' . . . 912, 927, 936, between spouses . . ..... 380, to lay down provisional regulations in succession suits ...... 913 in questions of status in questions of partnership forum contractus as a ground of jurisdiction^ necessity of personal service in . forum delicti commissi as a ground of jurisdiction voluntary submission to (prorogation) in absence of defender .... 2iropter contingentiam (?) . reconvention (?) . recognised in Scotland in incidental questions .... in actions for collisions at sea when several jurisdictions competent, pursuer has choice in questions of interdict ...... officials can only be ordained by their own courts to perform official acts PAGE 94, 90.5, 944 520 et seq. 926, 927, 936, 240 881 882 883 886 908 908 et seq. 909 910 912, 931 935 940, 952 381, 384 913 925, 937 913, 934 916 916, 935 921 922 922, 937 924, 925 926 937 934 927 928 929 931, 935 931 enquiry into jurisdiction of foreign court involves enquiry into fact as well as law 932 grounds of jurisdiction in Scotland jurisdiction over trustees .... grounds of jurisdiction in England jurisdiction of Admiralty Court .... jurisdiction by arrest of the person in Scotland and in England Juristic Persons, see also Corporation and Company — domicile of ...... legal capacity of . recognised powers of, may be limited title to sue and to be sued ..... law of England and Scotland .... allowed to sue in England since 1734 right of, to contract ..... even although they would not be recognised except in their own limitations on their right to contract cannot be recognised, unless legal in its own country taxation of. capacity to take by succession Jus gentium ...... country 934 et seq. 938 939 939 935, 940 121, 122 227 et seq. 228 229 et seq. 239, 240 230 233 etseq., 241 235 236 et seq. 237, 238 255, 256 807 et seq. 12 Kori 52 Zcesio enormis 568 INDEX RERUM. "47 PAGE loer, 1068 . 63, 74 99 100 101 lOlc^scj. 105 , 102 103 102 103 104 105 689 104 105 105, tioU 106 106 ei seq. 104, 953 UipcLcDl/ 108 109, 110 Lakes, laud-locked, jurisdiction over .... Laurent ...... Law, Foreign — it is the duty of judge to apply .... in certain circumstances may be presumed identical with native law reasons for this .... provisions and practice for ascertainment of, in England and Scotland in England and Scotland is regarded as a fact except in case of House of Lords dealing with British laws may judges use their own knowledge of ? . proof of, rules for . in case of bills ..... interpretation of, as contained in codes or statutes in English, Scots, and American courts . suggestions for facilities for ascertainment of effect of mistake in applying ..... error admittedly made by foreign court in its own law, effect of . can judgment of inferior court on, be reviewed where review is only competent on law ? .... provisions of treaties on, how to be dealt with Lease, see also Obligation — contract of. .... . . 522, 628 Legitim — by what law legitim fund ascertained exclusion of ... . Legitimacy, not to be determined by the lex rei sUoe Legitimatio ad causam .... Legitimation, see Bastard and Parent and Child — effect of, on nationality effect of, on succession Lex Anastasiana ... Lex fori, see also Procedure — will determine rules for suits by or against companies and partnerships . limits of this rale ....... will regulate c[uestions of procedure this only a general rule ...... by law of England and Scotland will rule all questions as to evidence and as to prescription . . . . will determine competency of conjoining parties . will refuse to enforce contracts contra bonos mores . 538, 539, Lex rei sitce, see also Property, Real Rights, Succession, and Testament — regulates rights in immoveable property . and real rights in moveables also . Liferent of surviving wife of father in estate of child competency of creating series of liferents by mortis causa deed Liferent and fee . Liquidation, see Bankruptcy. Lis alibi pendens — recognition of . . • • • • in England . .... in the United States .... in Scotland ...... dependence of suit in our courts no answer to demand for execution of a foreign judgment . . ■ • • • , • Lnan, see State Loan — contract of . ■ • ... 506 828 81 875 133 . 439-441 608 et seq. 240 240 . 87, 845 et seq. 849 864 680 875 i9, 559, 564, S55 483 et seq. 488 et seq. 425 447 824 520 1005 et seq. 1006, 1008 . 1006 . 1008 1008 629 1 148 INDEX RE RUM. Locus regit actum — universal recognition of . development of . theories of origin of ... . rests solely on custom .... or in of that custom in universal jurisdiction of the Emperor not applicable to real rights not confined to oflicial or judicial documents nor to forms used in modwm probationis . no sound distinction between extrinsic and intrinsic forms legal transactions concluded infravdem legis rule may be excluded by express or implied enactment rule is permissive only, not imperative so, too, in case of marriage so, too, in England and in Scotland general case for application of rule is unilateral act rule no application in Levant or barbarous States cannot be made compulsory for the future application of in France .... in Scotland, extensive application of . . , but permissive only .... in case of marriage (?) . . . so, too, in America not so liberally applied in England contract to be enforced in England must be valid both by the and by the law of the foreign country . not applicable to law of things application of, to testaments limitation of rule in relation to testament Lomonaco ...... Lordship, rights of, by what law ruled . Lottery, foreign, law of . Lunatic, see Curator. 6 27 262, 263 264 266 267 268, 269 271 271 272 274, 289 274 358, 359 371, 372 276, 277 280 284 et seq. 286, 287 287, 288 288 372 288 288 law of England 289 500 et seq. 816 818 74 533, 534 565 Macedonianum, SenatusconsuUum Majority, see Minor. Mancini .... Mandatary, see Agent and Principal — foreigners' obligation to sist in Scotland .... obligation of mandatary receiving instructions from foreigner by letter obligations of mandant and mandatary .... mandate to carry on an action .... Maritime law {see also Ship) ...... Market — contracts concluded in, presumption that law of market is to rule law of open market ...... Marriage — incapacity of one who has entered a religious order to contract . capacity for, to be regulated by law of country to which parties belong not by that of place of celebration contra in United States 337 63 879 281 629 880 696 et seq. 211, 280,, 597, 598, 276, 510, 324, . 343 et seq., Siiet law of place of proposed celebration will justify officers in refusing to celebrate it in certain cases ....... 350 necessity of parents' consent, and capacity of divorced spouses to re-marry to be determined by parties' personal law • . . . . consent of parents Regarded by law of England as part of ceremony, and so dependent on lex loci actus ...... law of France as to consents ..... 367 373 548 515 356 347 347 351 351 373 374 INDEX RE RUM. 1 149 Marriage — continued. what if personal law of bridegi-oom and law of bride give different answers as to capacity to marry ? . . . . . , . S52 et seq. distinctions between different classes of impediments . . . 352-354 impediments resting on husband's status, e.g. as member of a reigning house, as a white person marrying a foreigner, etc., will be iletermined by his personal law 356 capacity to marry dependent on personal law at date of marriage . 356, 357 so too by law of England ........ 373 dependent on lex loci in Scotland and United States . . . 373 dispensations, by what law granted ...... 357 law of domicile of spouses determines questions as to consent . . . 358 form of, regulated by the lex actus .... 358, 370 but this permissive only ........ 359 Gretna Green marriages ....... 364 marriages in savage or non-Christian countries, forms not recognised . 371-373 compliance with lex loci actus compulsory in England and America . . 371 in Scotland ?.-.... . 371, 372 before ambassadors and consuls, who entitled so to celebrate marriage . 362 et seq. strictly applicable to subjects only ..... 363, 364 374 law of England as to . 362, 374, 375 may be extended by legislation . . 364, 365 in fraudem legis, scoT^e oiTu\ea,s to . ■ 366,367 religious requirements merely part of municipal law .... 367 as such governed by rule locus regit actum nullity of marriage, nature of facts sufficient to infer ruled generally by law of husband's domicile or nationality rule for competency of court in actions of nullity bars to marriage, by what law ruled effect of second marriage on property, by what law settled Marriage Contracts, see Husband and Wife. Martens . . . . • Masse . . ■ ■ ■ Maurenbrecher .... Minor, see also Capacity — cannot change domicile change of minor's domicile by guardian bv parent . . • ■ majority must be fixed by law of original country effect of option by parents on capacity of, by what law to be judged customary rule on Continent as to capacity of law of England as to capacity of . law of Scotland as to capacity of . law of America and other countries as to capacity of sound principle identical with law of Scotland . applicable in cases of fraud . . • • effect of venia cetatis . . ■ ■ ■ can only be conferred on subjects . . • • effect of change of domicile or nationality on status uf mmority acts concluded will not be effected restitution of, regulated by law of transaction to be reduced, but recognised by their personal law MoUlia personam sequuntur — development of rule . • • • unwarrantable extension to real rights in moveables Savigny's theory of . ■ • • application of rule sound in questions of prescription Models, sec Designs. 375, 376 390 399 426 et seq. 61 44 49 118, note 119 176-178 179 185 306 307 309, 311 310 311, 312 313, 314 317 327, 328 328 328-330 318, 330 not given unless 340, 341 27 488 et seq. 492 et seq. 496 1 150 INDEX RE RUM. Molineeus, see Dumoulin. Money, see Payment. Monks — capacity of, law applicable to marriage of effect of vows of Morra Morality, sec Coercitive Law. Moratorium in bankruptcy in the law of bills Mortmnin, operation of law of 323 324 808 600 1040 632 822 111 c( scq., 123 et Name — right of foreigners in trade-name, see Trade Mark. Nationality, see also Naturalisation. definition and bearing of . historical development of idea of general import of . . . principles of ....... . jus soli and jus sanguinis both retained in England and the United States residence for two generations in France gives French nationality this sound principle, if person allowed to declare to the contrary within a certain period .... suggestions for legislation . foundlings and bastards, nationality of . date of birth, not conception, decisive point effect of legitimation on nationality effect of adoption on nationality . not necessary condition of political rights every individual must have conditions of abandonment of notion of loss of, as a penalty, must be rejected effect of entry into service of foreign country on each nation entitled to prescribe its own conditions for acquiring married woman takes husband's nationality does she follow all his changes of ? divorced, may acquire nationality for herself re-acquisition of law of, in federated States . change of, by cession of territory privilege of option in such cases effect of option on minors . case of Heligoland formal determination of . can there be a plurality of nationalities ? regulation of, by treaty desirable and possible should nationality or domicile determine personal law theories of different systems nationality likely to prevail eventually . conflict of two States, one holding domicile, the other nationality, conclusive will rule questions of guardianship change of, operates change in conditions of guardianship Naturalisation, see also Nationality — . rules for, in Great Britain ..... rules for, in Germany ..... does naturalisation imply loss of previous nationality ? . Bancroft treaties on .... . 216, 217 193 126 126 et seq. 127 128 131, 132, 134, 139 e< 141, 143, 171, 172, 17.3, 128 130. 132 133 133 134 135 138 142 144 172 173 174. 175 179 et seq. 181 seq. seq. 186 186 189 192 195 seq. 198 204 208 467 470 127 128 150 152 et seq. ISlet lS2et 185, 196 et 196- 203, INDEX RE RUM. IIJI Naturalisation, see also Nationality — continued. definition of naturalisation ..... 15i et seq. requisites of ...... . . 156 consent of person naturalised and capacity to consent, necessary . 156, 157 capacity to be determined by law of home State ..... 157 unless by that law there is an incapacity which our law holds immoral, e.g. slavery ...... . . 158 incapacity of married woman . .... 158 et seq. naturalisation in one country cannot be declared null by courts of another country ......... 163 but it is competent to refuse to give effect to it as founding some derivative right ......... 163, 164 naturalisation infravdem legis . . . 166 et seq. residence a proper condition of ... . ISSetseq, naturalisation of officials ..... . 169, 170 length of domicile a matter for domestic law ..... 171 some effects of, e.g. right to sit in Parliament or Privy Council in England to be given by special Act of Parliament ...... 172 married woman takes husband's nationality . . . 172 et seq. does she follow changes of ? ...... 173,174 can parents change children's nationality ? . . . 175 et seq. German and Italian law on the subject . . 176, 177 French law ....... 176 et seq. effect of loss of, on children .... 177, 178 majority must be determined by law of original country . . 179 ■" Nature of subject," true guide in international law . . . 82,83 Navigation, see also Ship — foreigners may be excluded from coasting traffic . regulation of .... • aerial ..... A'e exeat regno, writ of, in England Negotiable instruments, see Bonds. NegotioruTn gestio . . . ■ ■ Neighbourhood, law of, regulated by the lex rei sitm Neutrality, contracts involving infringement of . Nobility — grant of, does no,t imply naturalisation ... privileges of, ruled by law of transaction in question effect of legitimation on ...•••• • exclusive jurisdiction to determine claims to, in court of country where claimed non mtmeratoe pecunice, exceptio, competency of , Notary — acts of, on board ship in territorial waters in relation to ambassadors ...■•■ instrument by .••••• ■ Novation, of obligations ..•■••■ 1062, 218 1064 et seq. . 1068 940 643 511 559 155 325 435 932 611 1066, 1067 . 1091 . 1002 613 Oath- capacity to take . . • ■ • form of . • ■ ■ ■ ■ reference to oath . • • ■ • oath by sovereign prince . ■ • • Obligations — law which will rule observance of forms, best proof of intention of parties what forms should be observed to establish intention may be entered on before ambassadors or consuls . constituted by letter . • • • 321 847, 858, 891 869 1113-1127 . 86, 87 275, 562 275, et seq. 279 280, 289, 595 IIS2 INDEX RE RUM. Obligations — continued. by telegram or telephone ....... 597, 598 weight to be given to intention of parties in construing . . . 536 et seq. lex fori will refuse to enforce claims contra bonos mores . 538, 539, 559, 564 this rule not extended by law of England to foreign gambling contracts . . 564 application of rule in case of public lotteries .... 565-568 obligation to perform act which is illegal at place of performance cannot be 539, 657, 559 enforced act forbidden by law of place where it is concluded is, as a rule, null everywhere exceptions to this rule ........ 563 personal law of creditor cannot give the rule for construction of . . 539, 541 can law of place of execution of contract ? . . . . . 540, 541 can law of place of performance ? . . . . . . , 541 personal law of debtor regulative : theory of this rule . . . 543 et seq. but this only a general rule, subject to exceptions . . 546 et seq., 553 6o?Mi/des always to be respected ....... 548 place of performance may thus come to be of importance . . . 549, 550 law of that country with which contract has most real connection will rule . 552 contract for smuggling will not be ignored by court of foreign country . . 560 interpretation of, as a general rule, in accordance with law of contract . 560-562 place where contract is made may or may not be of conseq^uence . . . 561 in cases of offer and acceptance, language of offerer to rule . . . 561 offer accepted simpKciter, law of offerer will rule ..... 596 challenge of contracts ruled by law to which contracts subject . . . 568 import of an obligation to be determined by lex loci contractus . . . 568 payment, by what law regulated ....... 569 interest due under ........ 578 et seq. parties to agency ......... 588 ratification of, by what law ruled ...... 598, 599 alteration on, destruction of subject ...... 59S assignation of, see Assignation. rules for performance of . . . . . . . 610, 611 exception MOM. Jiumerate ^ccMmoj ....... 611 extinction of, subject to same law as determines validity of . . . 613 prescription of ....... . 613 et seq. law of Scotland and England ...... 624 et seq. transmission of, to heirs ........ 627 Quasi ex contractu, rules for ...... . 642 forum contractus as a ground of jurisdiction . . . . .916 Obligations ex delicto, see Delict. Occupatio, right of foreigners to acquire by ..... . 217 Offer accepted simpliciter, law of offerer will rule ..... 596 Officials — domicile of ........ 116, 117 acquisition of nationality by . ..... 169, 170, 171 courts of our country have privative jurisdiction over, in official matters . 931 extra-territoriality of (?) . . . . . . . 1098, 1099 Open market, protection of, covers goods after they have left country . . 510, 515 Option, sec Cession of Territory. Order, public — principle of, as used by Savigny ....... 65 futility of doctrine ......... 66 adopted by modern Italian school . . . . . 67, 69 ei seq. elasticity and impracticability of theory of . . . 70 e< seq. nature of enactments affecting . . . . . . 95 eJ seq. limits of application of laws affecting ...... 96 must not be offended by execution of foreign judgment .... 955 Ownership, reputed, see Bankruptcy. 563 INDEX RE RUM. "53 PAGE Pcutum displicenticB ....... 599 Pactum reservaii dominii ....... 499 Paper currency, legality of payment in . . . . 571, 674 Parens binubus ........ 426 Parent and cHld — change of domicile of parent affecting child's domicile 118 can parent change nationality of child ? . 175 et seq. German and Italian law . 176 French law ....... 176 et seq. option by parent, does it affect child ? . . 185, 186 case of Heligoland ....... 186 rules as to incapacity of children in family to conti'aot loans have no application in foreign countries ....... 337, 338 father or mother has no further rights over child's person than are conferred by law of domicile and by law of country where they are to be enforced . 431, 432 law of England and Scotland . . . . . . .432 law of France ........ 432, 433 personal law of father at date of child's birth will decide whether child was bom in wedlock ......... 433 legitimation regulated by personal law of father at date of act inferring legitimation ......... 434 so in Scotland ........ 440, 441 not personal law at date of birth ...... 434, 441 if child and father have different personal laws, that of father will rule . 435-437 law of mother not to be considered ...... 438 effect of legitimation on succession ..... 439-441 legitimation per rescriptum on same footing as per suisequens matrimonium 442 ei seq. law of adoption ........ 444-446 emancipation of children, law of . . . . . . . 447 rights of father in children's property ...... 447 according to law of England and Scotland ..... 449 claims of aliment, etc., ruled by personal law of alleged debtor . . . 450 jurisdiction in courts of country where parties are .... 451 obligation of father to aliment bastard ..... 453 et seq. quality of estate passing from father to children, by what law settled . . 506 Particular systems of law within one State . . . . . 87 et seq. modes of origin of . . . . . . . . .88 must be treated in international law like laws of independent States . . 89 unless otherwise provided by statute ...... 93 English practice . . . . . . . . . 90, 94 Russian and Austrian practice ....... 90 duty of Appeal Court where several particular systems prevail ... 93 Partnership, see also Company — rules for suits by or against, in England and Scotland .... 240 contract of . . . . . • • • • • ^29 trading partnership ........ 648 jurisdiction in questions of ...••■ . 916 Patents — rights in, must be conceded to foreigners law of, generally . succession in, and transference of . general convention as to, at Paris international law of, in Great Britain Payment, by what law ruled rule as to exchange in England . in forced currency or in paper, rule for rule where new standard adopted . 216 766 et seq. 768 769 770 569-571 571 . 571 et seq., 674 572 et seq, 12 4d 1154 INDEX RE RUM. 19 759, Personal law — system of, developed from Roman law importance of, among the Franks . system of, in India in Algeria and the United States . disappears generally in later Middle Ages in modern Italian school . Pertinent, what law will determine whether thing is Pfeiffer ...... Phillimore ..... Photographs, copyrights in Physicians, legality of bequests to preference of, in bankruptcy Pignus tacitv/m, not good against ambassadors Pledge — right of . Zea; m •site will determine securities over real property rights of, arising by operation of law rights of, over moveables . rights of, over ships priority of rights of . . . pledge of ships .... Poles- expulsion of, from Prussia Polygamy — in what sense it must be recognised how far it may be recognised Poors Roll — foreigners entitled to benefits of . in Scotland .... Possession — to be regulated by law of place where thing is Postglossatores ..... Prescription— in questions as to, must take personal law of possessor as regulative in the case of moveables . . . . . '. . 495 ei seg'., 500, 517 right in real estate acquired by, to be ruled by lex rei sitae limitation of actions, and acquisition of property by prescription same principles ..... different theories ..... Uxfori the rule in Scotland and England reasons against application of lex fori lex contractus, reasons against will apply where action is raised in that country lex loci solutionis, reasons against . law of debtor's domicile as the rule English rule practically coincides with this limitations on application of law of debtor's domicile trading domicile in case of traders where debtor changes his domicile prescription of bills .... Presumptions — as to survivance in questions of succession are questions of substantive law rather than of procedure distinction hstweeiii presumpiiones juris and hominis as to regularity of foreign judgment . _ . 15 19 note, 20 20 21 62 510 50 60 , 765 821 1027 1089 523 et seq. 524 524 et seq. 526 et seq. 530 et seq. 532 533 705 et seq. 224 95 et seq. . 96, 97 879 880 499, 507 et seq. 25 485, 486 to be 1 uled by 517 517 et seq. 519 614, 624 et seq. . 614, 615 615, 6L6, 618 618 617 619 619, note 620, 621, 623 623 621, 622 680 805 8S9et seq. 870 871 INDEX RERVM. IIS5 854 et seq., PAOB Priest — disability of, to marry ........ 356 capacity to receive legacy ........ 321 prize, law of ........ . 511 Procedure, see also Expenses, Foreign Judgment, and Lex Fori— regulated by lex fori ..... .87, 845 et seq, position of advocates, etc., and tbeir duties determined by lex fori . 873, 880 limitation of actions determined by same law as rules prescriptive acquisition of property .......... 517 auxiliary steps of process taken abroad judge of foreign court must follow his own rules . may observe those of principal court besides, if he pleases is foreign judgment entitled to same recognition as our own ? application of lex fori general rule only . rules of, frequently in truth substantive rules of law so in questions of status .... in other cases ..... citation of parties ..... citation of witnesses .... procedure in foreign country in connection with proof authentication of foreign documents practice as to commissions in England and Scotland of foreign judicial records .... inspection of foreign registers, etc. form of oath, that of place where it is emitted competency of evidence, ruled by law of principal court competency of particular evidence in particular cases ruled by law relation ...... law of England and Scotland always applies lex fori value of business books in evidence sisting of process in this court to await determination in another title to sue, by what law determined competency of conjoining parties determined by lex fori . obligations to produce documents . mandate to carry on an action position of foreigners in arrestment proceeedings . duty of one court to assist another in collecting evidence Prodigal, see Curator. Production of documents ...••■ Professio legis ....■•• Prohibitory laws, see Coercitive. Proof, see Procedure. Property — . --n capacity of things to be subjects of, determined by Zramsito . . . ouy acquisition in open market . . • ■ limitations on, determined by lex rei sitcc actions relating to real property . . . ' , , actions relating to vindication of moveables by what law ruled jvA-a in re aliena, by what law ruled liferent and fee, by what law regulated . Prorogation — how far competent . . . ■ • in cases connected with real property rule in Scotland ..•■•• in England . . • • is it competent in consistorial cases ? implied by finding caution . • • • Public law, relation of, to private international law 847, 890 847, 848 848, 892 et seq. 849 850 865 864 851 854 887 et seq. 855, 865 856, 857 . 865-868 857 858, 891 859, 860 of place of legal . 861-864 864 868 871, 872 872 et seq. 875 875 880 880 887 et seq. 875 19 510, 515 511 512 514 e« seq. 520 ei seq. 520 922 923 924 924 924 937 937 6 II56 INDEX RERVM. Public order, see Order. PuUicafdes foundation of Putter Piittlingen, Vesque v. 278 865 50 60 Querela inoffieiosoe donationis, dotis Railway — obligation of company as carriers . obligation of ex delicto .... convention of railways at Berne . liability of rolling stock to arrestment Real rigbts — in immoveables determined by lex rei sitce so too in moveables .... but not so in questions as to prescription of moveables law of last situation rules .... if personal property disposed of in accordance with lex rei sitce, that is everywhere ....... these forms must be observed ..... where things in transit, law of place to which they are consigned rules if intention of parties subsists till that place is reached . jura in re aliena, lex rei sitce general rule in real property in case of moveable property ..... of Germanic origin and feudal rights (thirlage, etc.) Reciprocity — rights of foreigners should not, as a rule, be made dependent on 214 et seq. not a sound basis for copyright law is adopted, however, in Convention of Berne not a sound condition for recognition of foreign judgments Reconvention — is it a ground of jurisdiction ? recognised in Scotland Records, authentication of foreign judicial Becuperatores .... Redemption .... RdSuction — of a contract ... in bankruptcy ..... of foreign judgment, competent only to foreign court Mei sitcB, lex, exclusive as regards things . Rei vindicatto ...... Religion, incapacities by reason of, have no extra-territorial operation Religious order, effect of entry into .... Reputed ownership, see Bankruptcy. Requisitions, see Procedure. Residence, a good ground for jurisdiction lies judicata, see Foreign Judgment. Bes nuUius, right of foreigners to acquire Restitution — Restitutio in integrum, ruled not by lex fori, but by law which in ^ther respects rules the relation in question ...... 338-340 of minors, regulated by same law, if their personal law recognises such a remedy 34O, 341 Retaliation — principle of, in treatment of foreigners ..... 226 227 sound principle, in the matter of execution of foreign judgments , , 973 549, 565, 657, 660 658 . 1115 483, 499 488, 499 495, 500 499 binding 499, note 500 ei seq. 503 503, note 520 521 et seq. 533 et seq. , 226, 227 749, 750 749 974 926, 927 934 865-868 12 512, 568 568 . 1032 933, 949 513, 516, 650 323 323 931, 935 217 INDEX RERUM. II57 Betention — right of . right of, in bankruptcy .... Revenue, see also Taxation and Fisk — revenue laws of a foreign country will not he enforced forms required for revenue purposes must he ohserved Rocco ■•...., Rodenhurg ...... Roman Law — how far authority for international law . passages cited as authorities Jus gentium and jus civile . no questions of international jurisdiction in idea of nationality among . Russia — treatment of foreigners in, in Middle Ages particular systems of law in . . . retrograde policy in ... . Sale, see also Obligation — rules as to passing of the property, and of the risk and claims of warrandice Salvage, see Ship. Savigny— general criticism of followers of . . . theory of coercitive statutes exploded Schaffner ..... Schmidt ... School, duty to send children to . Scotland — relation of legal system of, to that of England .... Sea-coast, see Territorial Waters. Security, see Pledge. Servants, preference of, in bankruptcy ...... Service, see Procedure. Servitudes, see also Real Rights ....... 520 Set-off, see Compensation. Ship- foreigner cannot own ..... ship-master as agent, by what law his contracts are ruled properly in, by what law ruled .... law of Great Britain as to property in . joint ownership in . . . ' . sale of British ...... necessity of bill of sale ..... nationality of ship to be decided by law of flag carried 'oy her securities over ships ..... when there has been a change of flag capacity of ship to serve as security subject securities over British ship .... power of captain to give securities over . in Britain regulated by law of flag abandonment regulated by law of flag liability of owner for delicts and quasi-Aelicts of master . liability of owner for furnishings to master claims arising out of collision in harbours and territorial waters jurisdiction in collision questions .... in collisions of warships . , . . , 533 . 1029 290, 560 281 44 37 11 15 12 17 123 18 90 212 628 5i et seq. 57 65 et seq. 49 58 211 . 90, 94 1027 et seq., 534 211, 218 594, 595 699 218 712 701, 702 702 705 705 et seq. 710 711 711, 712 713 715 714 715, 731 717 717, 1066 928 , 1123 iiS8 INDEX RERUM. Ship — continued. rule of British law .... case of compulsory pilotage collisions on the high seas . on the narrow seas salvage, by what law claims for, are determined on the high seas .... on the narrow seas . British rules .... contract of affreightment . British rule .... average ..... British rule is the law of the port of discharge insurance ..... crew and master claims against owner freedom of ships from arrestment . inspection of ... . advances to shipwrecked sailors ships in territorial waters . voluntary jurisdiction on shipboard within territorial waters Silence, action of putting to, not allowed to deprive true pursuer of the choosing his own /onsm . Situs, see also rei sitce, lex — origin of rule of law of, as regards real estate law of, exclusive as regards things Slavery — how far it may be recognised must he recognised as a fact and as involving certain legal results, so slave in slave country aura absentis in case of slave slave may marry so soon as he leaves slave State . Smuggling— ia what circumstances contracts for, will be enforced Soldiers — domicile of .... marriage of English soldiers abroad Sovereigns, foreign — not exempt from obligation to find caution jurisdiction against English rule .... cases in which jurisdiction sustained against views of modern authors on author's view no jurisdiction in respect of acts done in sovereign capacity jurisdiction ratione materice Forum rei sitce good against Forum hereditatis also liable to incidental orders in process, e.g. emission of oath Forum contractus good against execution against . execution against mail-boats, etc. agents of, responsibility of in England .... not personally responsible for obligations of their State case of sovereign taking over private obligations case of private company with sovereign rights questions between two States or sovereigns invasion of sovereign's rights forged in England liability of ex delicto 718, 719 719, 720, 1066 720 1066 723 724 1066 722 726 727 727 et seq. 730, 732 730, 732 732 735 735 736 1059 et seq. . 1066 right of 930 22 96, 319, 320 long as 320 320 350 559, '560 116, 117 362 876, 1111, 1127 1101 et seq. 1125 et seq. . 1103 1106 et seq. . 1111 . 1111 1112 . 1113 . 1113 1113, 1127 . 1114 . 1115 . 1115 . 1121 . 1128 . 1121 . 1122 . 1122 1122, 1123 . 1128 . 1129 INDEX RERVM. II59 Sovereignty, influence of conception of, on international law Specijicatio ....... Sporting rights, right of foreigners to exercise . Stamp — if want of infers nullity, cannot he recognised in any country law of England to this effect .... law of Scotland ? . . . . want of, on foreign hill is immaterial State, Foreign, see SoTereigns. State Loans — taxation of, inexpediency of conditions of, as excluding jurisdiction Status, see also Capacity — determination of, by what law regulated distinction between status and effects of status untenable various theories of. confusion between physical jurisdiction in cases of Statute — 1621 c. 18 (Scots Act) 1696 c. 5 (Scots Act) 4 Geo. IV. c. 91 . 7 Anne 0. 12 6 Geo. IV. c. 87 . 1 Will. IV. u. 22 . 7 Will. IV. and 1 Vict. 3 and 4 Vict. c. 65 3 and 4 Vict. c. 105 5 and 6 Vict. c. 36 6 and 7 Vict. c. 82 7 and 8 Vict. 0. 12 12 and 13 Vict. c. 68 14 and 15 Vict. 0. 99 15 and 16 Vict. c. 12 16 and 17 Vict. c. 70 17 and 18 Vict. u. 34 17 and 18 Vict. c. 104 19 and 20 Vict, c, 19 and 20 Vict, c, 19 and 20 Vict, c, 21 and 22 Vict, o 22 and 23 Vict, c 22 and 23 Vict, c 23 and 24 Vict, c 24 Vict. 0. 10 24 Vict. c. 11 24 and 25 Vict, 25 and 26 Vict. c. 25 and 26 Vict. c. 31 and 32 Vict. 0. 31 and 32 Vict, c, 31 and 32 Vict, e, 33 Vict, c. 14 33 and 34 Vict. c. 33 and 34 Vict, c, 38 and 39 Vict. c. 12 39 and 40 Vict. c. 80 45 and 46 Vict. 0. 61 79 96 113 56 20 63 33 26 c. 114 63 68 54 61 101 52 93 characteristics and legal status 701 et s 859, 1044, PAOE 29 510 217, 533 281 289, 290 290, 560 672 257 1112, 1128 295 et seq. 296 . 297-301 300, 301 913 . 1034 . 1034 362, 375 1078, 1100 859 855 814 939 855 590 812. 764 362, 363, 375 856, 868 764, 765 333 858 '.q., 711, 713, 719 1045, 1047, 1048 364 857 839 858 105, 915 . 1048 725, 939 101, 105, 915 813, 814,816 716, 719, 725 765 90, 94, 905, 944 375 817 127, 147, 172, 173, 180 331 764 735 672, 673, 674, 678, 691 et seq. 101, 723, ii6o INDEX RE RUM. Statute — continued. 46 and 47 Vict. c. 52 46 and 47 Vict, o. 57 48 and 49 Vict. c. 74 49 and 50 Vict. c. 33 50 and 51 Viot. c. 28 52 and 53 Viot. c. 41 52 and 53 Viot. c. 45 53 and 54 Vict. o. 32 53 and 54 Vict. c. 47 54 and 55 Vict. c. 29 54 and 55 Vict. o. 74 Statute of Merton Statute Theory — origin of meaning of development of Stobbe Stoppage m troMsWa in bankruptcy Story Student, domicile of Succession, sec also Testament — tax on foreigners' .... law of, will interpret facts inferring birth law of, will regulate declarator of death or disappearance so, too, in Scotland ..... rules for determining quality of succession, whether moveable or . 1024, 1025, 1034, 1049 770, 774, 778, 783, 789 858 752, 763 et seq. 783, 787, 788, 791 332 594 186 362, 375 292 362, 375 440 21, 25 26 28 et seq. 59 532 1031 46 113 24 291 291, 292 292 immoveable 506, 507 law of, will be law of domicile (nationality) or law of situs according as succession is universal or particular law of sUus of property must to some extent regulate succession incidence of debts on personal or real succession . nationality will give the personal law in questions of successions between spouses presumptions as to survivance civil death not recognised in foreign country capacity to take by, what law will rule . rights of heredes legitimi .... contracts as to . entering on, and renunciation of . consequences of acceptance of . executor, powers of {see also Executor) distribution of succession, subject to law of succession succession by the Crown .... appointment of curator for hereditas jacens jurisdiction in case of . Succession Duty, see Taxation — Sujets mixtes ..... 87, 792 et seq. 798 et seq. 802, .803, 836, 812 804 804 805 805 806 et seq. 826 et seq. 833 833 et seq. 835 836 840 et seq. 913, 844 925 192 Taxation — of foreigners' succession ..... principles for taxation of foreigners may be double ...... personal taxation, principle of domicile should regulate income from land taxable at situs land tax and taxes on specific articles should be levied in the sitics stamp duties, principles for levying .... 24 245 et seq. 246 247 248 249 250 et seq. INDEX RE RUM. II6I Taxation — coniinued. succession duties, principles for regulating probate duty in England .... succession duties, distinctions taken in England . legacy duty, in England .... of juristic persons, principles of . in England ..... of coupons . .... principle of, adopted for Germany of foreigners and foreign companies in Great Britain Telegram, contracts concluded by means of Territorial Waters ..... English Act of 1876 .... right of maritime State not a complete right but right of police and jurisdiction no jurisdiction over acts done wholly within foreign ship compulsory pilotage, salvage, collisions, etc., within voluntary jurisdiction within right of property in, law of Scotland Testament — capacity to make ..... law of Scotland and England form of, by what law regulated ..... form of, for British subjects, regulated by Lord Kingsdown's Act not available for person who has ceased to be British subject holograph execution of French limitations on rule locus regit actum on board ship in territorial waters distinction between form and substance of what rule shall determine validity of bequests law of Mortmain . election under a . application of Thellusson Act competency of entails and substitutions condition in restraint of marriage application of collation exclusion of Iwredes legitimi by construction of . meaning of "majority " in construction of terms by Scots Court construction of terms by English Court powers of executors nominate powers of trustees under . revocation of . . ■ Thellusson Act, application of internationally Thibaut . . • • Things, law of, is lex rei sitce exclusively law of . law of situation will determine whether things are moveable or immoveable Thirlage . . • • ■ Titius . . • • ■ Trade-mark— right in, must be conceded to foreigners trade-mark and trade-name 252 . 232, TWte, 260 252, noU, 255, 260 . 255, 260, 261 255, 256 256, note 256 258 259 280 1059 et seq. . 1060 . 1061 1063-1065 . 1064 . 1066 . 1066 1068, 1069 810 ei seq. 813 813 et seq. . 814, 816 et seq. 814, 816 817, 818 818 . 1066 819 820 et seq. 822 823 824, 826 824, 825 825 826 826 et seq. 828 829 830 831 831 832 832 824, 826 48 483 et seq. 505 534 49 216, 783 775 et seq. seat of trading establishment is the test of what country a trade-mark belongs to 777, 784 to enjoy protection here, foreign trade-mark must be such as can be registered here ''77, 778 iudee must be guided by his own law as to characteristics of . . 778, 779 •■ ^ 2e Il62 JNDEX SERUM. Trade-mark — i this not so now by British law nature of protection given . definition of infringement . British law upon . change in British law by statute of 1883 Trade-name, see Trade-mark — protection for goods marked with British law upon . Trading domicile . in bankruptcy in questions of trade-mark in qnestions of prescription Translation, see Copyright. Treasure-trove ...... Treaties — science of private international law independent of danger of . . . , . . . . dealing with questions of private international law, how to be regarded suggestion for, in the matter of execution of foreign judgments . in matters of bankruptcy ...... Tribunaux mixles ........ Trust- powers of trustees, by what court determined by what court trustees supervised ..... Turbatio sanguinis ....... United States, system of personal laws in ... . Velleianum', Senatusconsultum ...... Venia cetatis, see Minor. Vested rights — theory of . true meaning of theory Viability, what law will determine conditions of Vindication, of moveables, by what law ruled Voet, P. . Voet, J. . . . . Wachter . Weiss Westlake . Wharton . Wheaton . Widow, see Husband and Wife. Women, incapacity of ...... . Will, see Testament. Witnesses, see Procedure — number and qualifications of testamentary, determined by lex loci actus 790 780, 781 781, 782 787, 789 et seq. 790 786 787, 789 et seq. 120, 121 . 1023 777, 784 623 510 , 10 83 109, 110 980 et seq. 1050 et seq. ■ 970 832, 938 832, 938 • 350 20 336 49 . 80 , 82 , 291 51d et seq. , 38 • 39 52 6< seq. • 75 . 61 , 61 46 330 867 Printed at The Ecinbusqh Pbess, 9