Political conditions in Italy, Belgium, and France favoring unification dences at home and of foreign personal laws. § 7. The establishment of Belgium and of Italy as independent states was vindicated on the ground that the Belgian and Italian nationalities were homogeneous, and were, in respect to language and history, distinct from the states to which they had been subjected. Belgium, it was of jurispru- argued, has little in common with Holland, Italy little in common with Austria; on the other hand, the Belrecognition gian people, and the Italian people, form nationalities complete in themselves; and on the ground of this solidarity should have restored. to them the territories to which they are bound by community of national tradition, national pride, and national aspirations. It would have been inconsistent with this position to have said, "While we are one nationality, we claim to have several jurisprudences." A nation, so under such conditions it is urged, must have not only its distinctive jurisprudence, but it must have but one jurisprudence controlling all its subjects, for were it otherwise it could not set up its claim to solidarity. On the other hand, as it claims to have a distinctive jurisprudence for itself, it must concede a distinctive jurisprudence to the subjects of other states who may visit its shores. The consequences of this position have been very important. (1.) Nationality, and not domicil, is regarded as the test of capacity. If domicil were the test of capacity, lish Naturalization Act of 1870 con- resumption of original allegiance. The "repatriation" provided for by the convention must be on the "application" of the party concerned. See, also, debate in House of Commons on expatriation, U. S. Diplom. Corr. 1868, pt. i. p. 176. As to involuntary revival of domicil, see infra, §§ 59, 60. As to revival of original disabilities, §§ 75-78. By recent naturalization treaties, residence for two years in the country of nativity is regarded as evidence of an intention to abandon the country of naturalization. U. S. Foreign Relations, 1873-4, vol. ii. 1189. The conditions of naturalization are discussed infra, §§ 10-14. then, instead of the jurisprudence of a state being uniform throughout its whole population, there would be as many jurisprudences as there are customary local laws. This, however, must be abolished, not merely as an unnecessary inconvenience, but as inconsistent with the claim to unity, on which alone national independence can be based. (2.) The rights claimed for the home nationality must be conceded to foreign nationalities. Hence, the second distinctive characteristic of the Italian school, as it is now called, but which is represented with great ability in Belgium and France, is the doctrine of the ubiquity of national status. The personal capacity impressed on a man by his nation is to be recognized as accompanying him wherever he may go.1 1 Belgium sought a separation from Holland on the ground that the Belgian and the Dutch nationalities were so distinct that the one could not with justice be subordinated to the other; and this distinctiveness of nationality was appealed to by Thiers, by Guizot, and by Lord Palmerston, to sustain the armed intervention by England and France, by which the independence of Belgium was to be secured. It was on the ground that the several Italian states were of one nationality, and should therefore be united under a common government, that Cavour based the hostile action of Sardinia, by which Italy was forcibly wrested from Austria; and the solidarity of nationalities was the maxim on which Louis Napoleon lent his aid to Sardinia, and under which the new kingdom of Italy was finally established. Laurent touches the spring of the Italian advocacy of nationality, when he says that if Savigny had lived to see the unification of Germany, nationality and not domicil would have been the test he would have applied for the determination of status; and there can be no question that the tendency of a homogeneous nation with a uniform jurisprudence is not only to set up its own national law as determining the status of its subjects when travelling abroad, but to seek to determine the status of foreigners visiting its shores solely by their national law. Nor are either Belgium or Italy likely to feel any business embarrassments from the adoption of this test. Their shores are not thronged by masses of emigrants from countries holding antagonistic jurisprudences. Foreigners visiting Belgium and Italy are mostly tourists, coming in small parties, for short periods, not for business but for pleasure, and giving notice to all who deal with them of the nationality to which they belong. The case is widely different with the United States. Vast multitudes from Europe, Africa, and Asia, representing every stage of civilization, are poured on our shores. Emigrants from Europe in most cases come with the intention of accepting our nationality; but there have been marked exceptions in which the members of German religious communities have occupied entire townships with the intention of preserving their German nationality. The large population that we receive from China persistently maintains its nationality. No Chinese would, even if he could, Political conditions in the United States fa § 8. The political system which emerged in the United States from the late civil war and its attendant reconstruction is, as was well stated by Chief Justice Chase, that of an indestructible union of indestructible states. An eminent Belgian jurist1 has imputed this apparently incongruous union of unity and of particularism to feudal traditions; but it is more properly both the necessity. of our political position, and the great safeguard of our liberties. It has been truly said that the Constitution voring uni ty in inter national re lations and particular ism in inter-state relations. become a naturalized citizen of the United States (infra, § 12); there is no Chinese who does not hope to return to China; and even when a Chinese dies in America his bones are to be returned to his home from what he and his people consider an alien land. Yet how would it be possible for us, in receiving this race on our shores, to receive them as stamped with the immunities and incapacities of their nationality? No Chinese, by Chinese law, who has a father, can, unless emancipated, make a contract without his father's consent. Are we to hold void all contracts made with Chinese who have fathers? No Chinese wife, it is held in China, has any civil rights as against her husband. Are we to treat Chinese women as under this subjection? Marriage, in China, is not monogamous. Are we to permit Chinese in this country to have a plurality of wives? In China property ascends to parents. Are we in this way to distribute the estate of a Chinese who dies in this country? It is possible to hold that Chinese, when they settle among us permanently, are domiciled among us, and thus to subject them to our laws; but it would not be possible to hold that they are naturalized among us when they have never been and cannot be naturalized. And beside there is a radical distinction in origin between our political institutions and those of Belgium and Italy. The revolt of Belgium rested on the principle that an independent nationality should possess an independent territory; and so was it with Italy. The revolt of the North American colonies rested on the principle that an independent territory should have an independent nationality. But while unity of jurisprudence is an essential element of the Belgian and Italian conception of nationality, to our conception of nationality a union of states with diverse jurisprudences is, as we will presently see, in like manner essential. In a notice of Montesquieu, at the close of a series of sketches of the older publicists in the appendix to the first edition of this work, I said: "Each independent state whose polity is that of constitutional liberty, subjects to its particular laws all persons and things in its territory. It may admit, as is the case with succession, and with certain phases of obligations, a foreign law as ruling a litigated case; but this is only a voluntary concession, granted because the exclusion of such foreign law would work greater injuries to the business and juridical interests of the state than would its adoption. And in no case will such state recognize the international validity of any foreign law, either creating personal disabilities beyond those 1 Laurent, Le droit civil int. 1880. of the United States is not the creature of political speculations, but is the condition of political necessities. The same criticism may be applied, so far as the questions now before us are concerned, to the reconstruction measures which followed the war. The Union has been consolidated as indestructible; but the States have been again recognized as indestructible. Amendments have been made abolishing slavery, and legislation has ensued rendering nugatory state laws discriminating against the African race; but this very legislation, on the principle expressio unius est exclusio alterius, adds an additional sanction to the constitutional principle that all rights not expressly granted to the federal government are reserved to the states. Hence it is that we have, in almost all questions that arise in private international law, as many jurisprudences as we have states. Were this the proper place for such a task, it might be readily shown which the law of nature establishes, or disturbing those great principles as to marriage and family which Christianity has inaugurated, and on which the welfare of civilized society depends. Nor can this be justly regarded as selfish. It tends, no doubt, to national aggrandizement. But it does more than this. It affords an inviolable asylum to those principles of personal equality and family integrity which Christian liberal governments hold in trust for all mankind." The italicized portions of the above I desire to qualify. The admission of foreign law, within the limitations above stated, is not a mere "concession," or courtesy" on our part. When a contract is executed under a foreign law, such foreign law, by the rules of our own common law, is part of the contract, and is to be applied, not as a matter of concession, but as a right. The same rule is to be applied to the adoption, in cases of succession, of the law of the last domicil of the deceased. But foreign incapacities imposed by a foreign law we will not enforce, even when the party on whom the incapac 66 ity is to be imposed, while resident 66 that this combination of unity in federal jurisprudence with particularism in state jurisprudence is far more conducive both to liberty and to stability than would be the destruction of our state governments, and the submission of our whole population to a common ubiquitous jurisprudence, and to a government in which would be vested the exclusive control of matters state as well as federal. No federal legislature, it might well be argued, would have time, capacity, and information enough for such a task. No administration, depending on popular election, could be burdened with such a load of patronage without risk of occasional popular convulsion and the certainty of permanent political corruption. No jurisprudence could be constructed which would be equally adapted to all sections of a territory so vast, and populated by people with diverse traditions and diverse customary laws. All this might well be said in response to the charges of feudalism made by our Italian and Belgian critics; and it might be added, that in the long run a system combining imperialism in matters national with particularism as to state jurisprudence is likely to be both more liberal and more stable than one in which absolute power is vested in a single central government. This question, however, is beyond the limits of our present study. It is sufficient at present to say that we must continue to take domicil and not nationality as the standard of personal law for the following reasons: (1.) Nationality leaves the question still open in the United States, and in the British and German empires, where there are several territorial jurisprudences established under the same national head. To the United States this union of sovereign jurisprudences under a federal nationality is established by the most solemn constitutional enactments, as well as by the result of the late civil war. Each state of the North American Union has its own distinctive law of legitimacy, of marriage, of divorce, of succession, of guardianship, whether for infants, lunatics, or spendthrifts. Each state, in matters within its orbit, is supreme, so far as concerns foreign states, in respect to judgments rendered by its courts. Each state is supreme in its control over business transactions within its borders, provided by its legislation it does not impair the obligation of contracts. It is true that the federal government alone is competent to establish a bankrupt law, but |