Nor judi ration of § 107 a. By the jurisprudence of several European states, the courts, after due proof that a person has been unheard cial decla- of for a designated period, are authorized to enter a judeath. dicial declaration of death. Fiore, after noticing the conflicting peculiarities of local legislations in this relation, argues that to avoid the contradictions that would arise from the application of the lex rei sitae, the proper course is to apply the personal law of the person supposed to be dead. Every sovereign, he insists, has the right to protect the interests of his subjects and their families, even in respect to the goods they possess in a foreign land, in all cases when such action would not encroach on the rights of the territorial sovereign. But in case of a person judicially declared to be dead turning out to be alive, no foreign decree of death should be regarded as operative. And in any view, such decree is only entitled to the force attached to letters of administration in our own courts, which may be collaterally impeached.2 Nor at 3. Attainder and Infamy. § 108. Here we enter on a subject of greater difficulty. It was natural for the older jurists, shackled as they were by tainder and the fiction of the union of Christendom under the Roinfamy. man imperial crown, to hold that the disabilities produced in one land by conviction of an infamous crime would be enforced in all other lands. Even by writers of the present day, when this fiction is exploded, the doctrine of the international recognition of infamy is accepted. But, so far as England is concerned, while her shores have been the refuge of multitudes of persons who have been attainted and consigned to infamy by their respective sovereigns, there is no case recorded where such disabilities have been enforced by English courts.5 ligious orders is generally recognized in Europe. Savigny, viii. § 365; Bar, § 48; Fœlix, i. p. 198; Brocher, p. 353. Would any one pretend that such incapacity would be recognized as limiting such persons when travelling in the United States? 8 Burgundus, iii. 12; Bouhier, ch. 24, No. 134; Boullenois, ii. p. 19. Mittermaier, § 30; Thöl, Einleitung, § 78; Bar, § 49. 5 See Westlake (1857), art. 403: "By attainder for treason or for felony, the blood of the person so at 1 Fiore, Op. cit. § 77. Infra, § 133. tainted is so corrupted as to be ren2 Whart. on Ev. § 1278. dered no longer inheritable." Black. As to the United States, Judge Story properly remarks,1 that "an American court would deem them (such incapacities) as purely local, and incapable of being enforced here. Even the conviction of a crime in a foreign country, which makes the party infamous there, and incapable of being a witness in their own courts, has been held not to produce a like effect here. The capacity or incapacity of any persons to do acts in their own country would, under such circumstances, be judged by their own laws; but not their capacity or incapacity to do the like acts in any foreign territory where different laws prevail." And, as a general rule, it is fully settled that penal laws have no extra-territorial effect.2 The question of the effect of a foreign conviction upon the admissibility of a witness will be discussed under its appropriate head.3 4. Distinctions of Creed or Caste. tinctions § 109. So far as concerns England and the United States, this question does not admit of discussion. No foreign Nor disdistinctions, arising from either creed or caste, are of creed viewed, in either of these countries, as having any ex- or caste. tra-territorial force. On the continent of Europe the same rule Com. b. ii. c. 15. The idea is local. "Was not thy father, Richard, Earl of For treason executed in our late king's days? And by his treason stand'st not thou at- Part I. Hen. VI. act vi. sc. 4. Of a similar character is the civil death of the French and Russian codes. See supra, § 107. A person to whom such disability has attached at his domicil is relieved from this disability when he places himself under another sovereignty. Wächter, vol. ii. p. 172; Bar, § 51; contra, Schäffner, § 35. And the reason is, (1.) that these are penal laws, which for- is now universally applied to incapacities on account of creed.1 So far as concerns the privileges of nobility, however, very minute distinctions are made by the older jurists. It is enough now to say that, in a country which recognizes the nobility as a distinct caste, the privileges of this caste will be at least tacitly assigned to foreign nobles.2 Artificial on negotiable paper do not follow the person. 5. Incapacity as to Negotiable Paper. § 110. The right to make negotiable paper has been subject, in Germany, to various limitations. In some states it limitations has been viewed as a prerogative, to be limited to certain favored classes,3 in the same way as in England and the United States the issue of bank notes is limited to certain chartered institutions. In other states, whole classes, such as farmers, nobles, traders below a certain limit, are prohibited from the exercise of this function. Were this to be regarded, as it is sometimes claimed to be, as a protective measure, it might be subject, on the principle above stated, to 1 Bar, § 50; Savigny, pp. 36, 160. As to disabilities attached to ecclesiastics, see supra, § 107. 2 Thöl, § 78; J. Voet, 1, 5, § 3: "A l'egard des étrangers de race leur noblesse est un droit de sang qui les suit partout." Duplessis, ii. p. 456; Boullenois, i. p. 67; Bouhier, ch. 24, No. 134. The subdistinction between the "Erbadel" (nobles by birth) and the "Briefadel" (nobles by creation), momentous as it is in German social life, is now generally agreed to be out of the range of judicial cognizance. 3 According to the Prussian law, for instance, which was in force down to 1849, the right to enter into such contracts was confined to (a.) Rittergut besitzer (owners of manorial estates); (b.) Domänenpächter (lessees of demesne lands); (c.) licensed merchants or traders; and (d.) those having granted to them by their personal judge the special right to make such paper. All others, embracing the vast majority of the population, were pro hibited from making such contracts. It is true that by the Wechselordnung of February 1, 1849 (Preussische Gesetzsammlung 1849, p. 51), these prohibitions were removed by a general legislative act. Traces of them, however, based on the principle that the making of commercial paper is too powerful an engine to place in any but intelligent and experienced hands, still linger in the jurisprudence of other lands; and the question, therefore, may still emerge, how far a person, who by the law of his domicil is thus restricted, is capable of binding himself in those countries where such restrictions do not exist; and how far, on the other hand, a person, who by his domicil is free in this respect, is restricted in countries where these limitations are in force. An article on the capacity of women in Germany to bind themselves by commercial paper will be found in the Revue de droit int. for 1879, p. 147. the law of domicil, and the restriction might follow the person. But it can hardly be regarded as protective. In the first place, it bears on its face the mark of the old medieval system of guilds, which are confessedly institutions of local policy, and have no extra-territorial effect. In the second place, the parties thus restricted are left at liberty to embarrass their estates by business expedients equally hazardous; and they cannot be considered, therefore, in any sense, as the wards of the local law. And thirdly, no persons are to be considered as, by the law of nations, subject to tutelage, except those who bear on their face notice sufficient to put persons dealing with them on inquiry, which is not the case with the persons in question. Hence these restrictions do not bind domiciled subjects of such laws out of their home territory. In this conclusion, though not in this course of reasoning, coincide the great body of modern European jurists.1 Savigny, on the other hand, lends his great name to the opposite view. He declares that, by the common law of Europe, the capacity of the maker of such paper is to be determined by the place of his domicil, no matter what may be the territory in which he may contract. He urges that though difficulties may spring up from this view, these difficulties are more apparent than real, for the reason that law is only meant for the provident; that no provident business man buys or indorses paper without first acquainting himself with the responsibility of the leading names attached to it; and that it is better for business in general that such caution should be required and stimulated by the law. But, as will be in a moment seen, this view is in practice abandoned. Not merely are these restrictions no longer recognized by the great commercial powers of Christendom, but they would be held, where they are still retained by minor states, as of no extra-territorial force.2 § 111. A distinction is made by the same high authority between a positive prohibition by a particular country of all forms of commercial paper, and a limitation by a particular country of the right to execute such paper to particular persons, as was for 1 Massé, No. 64; Pardessus, No. treatise on Das Wechselrecht, in Holt1483; Oppenheimer, p. 404; Bar, § zendorff's Encyclopädie, Leipzic, 55, p. 182. 2 See Dr. Endemann's excellent 1870. Lex fori may in such cases prevail, but not to enforce for eign restriction. merly the case in Prussia. In the first country, that in which all commercial paper whatsoever is prohibited, - it is maintained that no action whatever against any one lies on such paper, because this is a matter of procedure in which the law of the forum controls. This is not because the liability of the party is extinguished, but because, in that particular locality, it cannot be enforced. In the second case, however, that in which the law restricts the right to draw bills to certain parties,— persons who, in their own domicil are entitled to draw bills, may be sued on such bills in the country where the restriction exists, for in such cases, as has been seen, the law of the domicil obtains. But, as has been stated, these questions have been put to rest, so far as concerns Germany, by the Allgemeine Deutsche Wechselordnung (General Law of Negotiable Paper), now in force in all the German states. This closes, in fact, the claims of such restrictions even to any international recognition. "It would be intolerable," very justly speaks Bar,2" if a person residing in a land where no such restrictions are known were permitted to escape liability on bills drawn by him by appealing to restrictions of this class in his domicil." Such would unquestionably be the view of English or American courts, should they be called upon to adjudicate this point.3 fants determined primarily by their personal law. 6. Infancy. § 112. On the principles already stated, an infant, as an inGuardian- fant, is entitled to the protection, in a foreign land, of ship of in his domiciliary law. Two reasons combine to require this. In the first place, as a child, he is the ward of Christendom. On his face he shows this and makes this claim. In the second place, he is a traveller. If he be with his guardians, it is a gross infraction of natural law to deal with him without their privity and consent. If separated from them, the proper office of humanity is to return him to their care, or, at all events, to obtain for him the protection of the proper local court. His age is notice to all parties that the 1 Savigny, viii. p. 149. 2 § 55, p. 183. The general law as to commercial paper will be considered under a future head, §§ 447-452. See, also, Goldschmidt, Handbuch des Handelrechts, Erlangen, 1864, p. 454. |