diction in which such laws have force; and are to be regarded as governing such transactions by foreign judges.1 is by itself cient. § 86. There can be no question that the distinction between personal and real statutes was founded on the necessity Distinction of the case. Men are migratory, yet, divided as they bit are into nations and communities, they must each be impressed by the law to which they are subject with certain characteristics which they carry with them wherever they go. It would be absurd as well as unjust to say of a traveller who is here to-day and gone to-morrow, "We will overhaul all his past life and that of his ancestors; we will not regard him as legitimate unless legitimate according to our laws, or married unless married according to the form we prescribe." To a certain extent, therefore, we must regard laws determining personal status as ubiquitous; and this quality of ubiquity we must also concede to laws affecting such property as is naturally attached to the owner's person. On the other hand, we cannot, from the nature of things, regard property whose situation is necessarily in one state as in any way subject to the laws of another state. The distinction, therefore, between statutes real and statutes personal is satisfactory as far as it goes, but it does not go far enough. For to say that personal laws are those which go with the person into foreign jurisdictions, where he may be temporarily residing, settles nothing, because we then need to know what are the laws which assign this personal quality, and what is the permanency of the personal quality assigned; and for this purpose further definitions are required. So, also, mixed statutes, if liberally 1 The French Court of Cassation adopts the old distinction between statutes real and personal. "Le statut est personnel lorsqu'il rêgle, directement et principalement, la capacité ou l'incapacité des personnes pour contracter: il est réel, lorsqu'il a principalement pour objet la prohibition de disposer d'une espèce particulière de biens et leur conservation." Brocher, Droit int. privé (1878), p. 180. To the same effect is cited Demolombe, i. Nos. 75 et seq.; Dalloz, v. Loi, Nos. 386 et seq. A remarkable ruling was made by the same court, in 1872, when determining the status of certain Israelite inhabitants of Algeria who did not claim, under the statute of July 14, 1865, the quality of French citizens. These Israelites, it was held, were to be considered "comme soumis à la loi française quant aux statuts réels, et à la loi mosaique pour les statuts personnels." Dalloz, 72, 1, 313; Fiore, Op. cit. App. p. 631. construed, would absorb the other two, and the doctrine, so far as concerned statutes mixed and statutes real, would contain two contradictory opposites. At the same time, it is important here. to record this distinction, not merely as a part of the history of the law, but as explanatory of many propositions of the old writers that would otherwise be obscure.1 National necessary criterion. § 87. Two conflicting theories, as we have already seen, present themselves to us in solving the question as to what ity not the is the personal law by which we are individually bound. These theories are, Nationality and Domicil. In one sense, undoubtedly, we must hold to both. In a great number of cases a man's nationality is that of his domicil, and in such cases the law of his nationality must necessarily be his personal law, Political status, also, is necessarily conditioned and limited by nationality. On the other hand, to recapitulate, there are serious objections to taking nationality as ubiquitously determining civil status. These objections are as follows: (1.) Nationality as a test is impracticable in all federative empires, in which (as with Great Britain, Germany, and the United States) there is one nationality with a plurality of component states each with its distinctive jurisprudence. To say that a person whose status is in litigation is a subject of Great Britain, or of Germany, or of the United States, would settle nothing, for 1 As authors which give this distinction a sort of customary force, see Thibaut, Pandecten, § 38; Kierulff, pp. 75-82. For a discussion of the law as to statutes real and personal, see an article by Laurent, in Revue de droit international (1869), vol. i. p. 244. Judge Story says, speaking of the Roman jurists: "By the personality of laws, foreign jurists generally meant all laws which concern the condition, state, and capacity of persons; by the reality of laws, all laws which concern property or things; quae ad rem spectant. Whenever they wish to express that the operation of a law is universal, they compendiously announce that it is a personal statute; and whenever, on the other hand, they wish to express that its operation is confined to the country of its origin, they simply declare it to be a real statute." Confl. of Laws, § 16. More properly personal laws are those which attach to the subject, wherever he may be. Real laws are those which attach to things, and are limited by the jurisdictions in which these things exist. Judge Story, in a note to the above passage, says: "Mr. Livermore, in his dissertation, used the words personality and reality; Mr. Henry, in his work, the words personalty and realty. I have preferred the former, as least likely to lead to mistakes, as personalty' in our law is confined to personal estate, and 'realty' to real estate." neither Great Britain, nor Germany, nor the United States, have a system of status ubiquitous with allegiance.1 (2.) Nationality, as we have seen, involves many complex questions (e. g. in federative states, and in cases of double allegiance) which are apt to arise in the very issues in which personal capacity is litigated.2 (3.) Domicil, and not nationality, had until recently the almost unbroken assent of international jurists, and is now the only criterion which it is possible for jurists of all countries to adopt. It will be easy for Italy and Belgium to give up nationality for domicil; it will be impossible for Great Britain, Germany, and the United States, without introducing a centralization of jurisprudence inconsistent with liberty and good government, to give up domicil for nationality. (4.) Domicil can be changed far less arbitrarily and capriciously than nationality.3 of status not re quired by increase of § 88. It may be said that the increased facilities of modern travel make it still more important that personal status Ubiquity should be ubiquitous. It is easier now to travel round the world than it was in the Middle Ages to go from London to Alexandria. There are more passengers travel. now on a single ocean steamer than in the Middle Ages would cross the British Channel in a whole year for purposes of trade. It took Charles V. twice as long to transport troops from Flan 1 See supra, §§ 7, 8, 34. 2 Supra, §§ 10, 10 a, 11, 34. of statutes prescribing that movable succession shall be governed by the See fully discussion supra, §§ 7, law of the state of which the decedent 8, 34. That a committee of the Institute of International Law, at its session at Oxford, in 1880, should have determined in favor of nationality as a criterion is undoubtedly a fact to be gravely considered. There was, however, no representation from the United States on this committee; and Mr. Westlake, in a paper subsequently published (October, 1880), considers the change at present impracticable, so far as Great Britain is concerned. He proposes to lessen the conflict, in cases of succession, by the adoption is a citizen, "except so far as it may still be necessary to refer to domicil in consequence of the coexistence of different civil laws in one state," an exception which, in federative countries, is as large as the rule. He also proposes that domicil for succession should not be acquired until after a residence of one year, accompanied by the deposit of a written declaration of desire for such domicil. That a nationality cannot be adopted as the criterion of personal capacity is conceded by Mr. Westlake. See 6 South. Law Rev. 697. ders to Germany as it took the English government, in 1878, to transport troops from India to Europe. In old times a journey from one state to another was a great event. The habits and dress of nations were so different that a traveller had to make careful preparation to adapt himself to the country he expected to visit, and even when he was not betrayed by his dress and manner, he was betrayed by his tongue. Not only, in the insulation of those times, did each nation have its language, but each neighborhood had its dialect, so that a stranger could at once be detected. Then, again, strangers dropped in but occasionally, and when they came they excited curiosity; whereas now, in the United States, whole communities are made up of strangers having too much to do to be surprised at each other. The consequence is that many of the notes which in old time marked foreigners are not now discernible. In many cases we have no means of determining whether a particular person is of foreign birth, or, if he be of foreign birth, whether he has been naturalized. And the masses of population which emigration throws upon us would require us, if we recognize foreign status, to admit it, not as a rare and insignificant exception, but as a principle dominating the land. So far, therefore, from the increase of travel prompting to a more general recognition of personal law, it prompts to a non-recognition of that law unless coincident with the law of the state. Gliding as men now do without sign from land to land, coming in dense masses so as to often form communities by themselves; to concede to them the personal status of their home, and particularly to concede to them the personal status of their nationality, would not merely destroy business confidence by making it difficult for us to know whom to trust, but would establish, in numerous sections, a foreign uncongenial jurisprudence. In some states domicil is convertible § 89. In states, however, with a homogenous jurisprudence, we must remember that domicil is convertible with nationality, and that in such states allegiance to a common sovereign brings with it uniformity of personal tionality. capacity. capacity. In such cases domiciliary law may be regarded as impressed, not by the law of nations, but by the law of the particular state. And in this respect the theory of na with na tionality brings us back to the old view that "domicil" is the creature not of tribe but of territory.1 Ubiquity law. § 90. Yet, whatever might be regarded as the source of personal law, whether traceable to tribe, or territory, or allegiance; to personal law, as establishing more or less absolutely personal status, extra-territoriality was by the old jurists every where assigned. "If I admit a foreigner on my shores," so a sovereign is supposed to necessarily argue, "I receive him as he comes, with the status of his domicil inwrought." "Statuta in personas directa quaeque certam iis qualitatem affigunt, transeunt cum personis extra territorium statuentium, ut persona ubique sit uniformis ejusque unus status." 2 ference as to what personal capacity consists in. § 91. But however harmonious were these jurists in assigning ubiquity to personal law, they were far from harmoniz- Their difing in their ideas of what constitutes the personal capacity which is to be thus ubiquitous. By some it is held that where a statute of domicil confers, abridges, or destroys capacity, whether this capacity be generally for the possession of rights, or specially for the exercise of business, then such statute attaches to the subject wherever he may go, and is to be regarded as conclusive by all foreign courts.3 Argentræus, feeling that however comprehensive such a classification might be, in practice it is often inconvenient, if not impossible (e. g. when a foreign noble claims prerogatives for which 1 As exponents of this view, see Mascardus, in his Conclusiones ad generalem statutorum interpretationem, Conc. 6, No. 14, Frank. 1609; also Baldus. Ubaldus, in his Comment. in Codicem, L. i. C. de S. T. Nos. 58, 78. As Germans inclining to nationality, see Eichhorn, § 35; Schäffner, § 33; Heffter, § 38. The last-named eminent jurist, however, concedes to a foreign sovereign the right to establish an absolute and unvarying status for all residents, the law of personal domicil only obtaining in default of such enactment. See, also, Mittermaier, § 31; Merlin, Rép. Testament, Lect. 1, § 5, art. i.; Rodenburg, i. 3, §§ 4-6; Bouhier, ch. 24, Nos. 1, 9; Boulle nois, i. p. 48; Huber, de Conflict. Lib. i. tit. 3; Savigny, viii. p. 134; Wächter, ii. p. 172. 2 Stockmanns, Decisiones Brabantinæ, 1665, Dec. 125, No. 8. This view has been frequently expressed under the general doctrine of the indelibility of nationality, by English judges when treating of domicil. See, also, Christianæus, vol. ii. Dec. 3, No. 3. 3 Boullenois, i. p. 26; Merlin, Rép. Test. Lect. i. § 5; Rodenburg, i. 3, §§ 4-6; ii. 1; Bouhier, ch. 24, Nos. 1-19; Mevius, in Jus. Lub. proleg. qu. 4, § 25. 4 Nos. 16-18. 135 |