of descent, the lex rei sitae, at least as to real estate, in cases of intestacy, would be held to prevail. As to movables, we encounter the same disputes as exist in reference to the legitimation. By Fiore, it is held, in consistency with the scheme of nationality maintained by him in common with recent Italian and French jurists, that the law of nationality must prevail. The law of the nationality of the adoptor is to decide in all that concerns his relations to the adopted person; the law of the nationality of the adopted person is to decide in all that concerns the relations of the latter to his own family. According to the view maintained in the prior pages as to status, the law of domicil, and not the law of nationality, is to determine. In the United States, where the legislations of particular states differ so widely in this connection, to take the test of nationality would be impracticable. Each of the states is part of one nationality; no state is a distinct nation. Each state, however, has its special legislation as to civil status; and domicil, therefore, must determine what particular legislation is to apply. In this country, therefore, the law of the domicil of the parties must determine the validity of the adoption. If both parties are domiciled in the state of the adoption, then the adoption should be held extra-territorially valid, at least in all states which accept the policy of adoption, or to whose jurisprudence adoption is not repugnant. But no state can declare that a person not its domiciled subject shall be the adopted child of another person. Both the adoptor and the adopted must be personally subject to the laws of the state by whom the adoption is enacted. But when those conditions exist, then an adoption so effected will be regarded by states with cognate jurisprudences as placing the adopted child in the same position as if he were a legitimate child of the adopting parent.4 1 See supra, §§ 242-3. 2 Op. cit. § 153. 3 See Foster v. Waterman, 125 Mass. 125. 4 In Ross v. Ross, 129 Mass. , the question was whether a child adopted, with the sanction of a judicial decree, and with the consent of his father, by another person, in Pennsylvania, where the parties, at the time of the adoption, had their domicil, under statutes substantially similar to those of Massachusetts, and which give a child so adopted the same rights of succession and inheritance as legitimate offspring in the estate of the person adopting him, is entitled, after the adopting parent and the adopted Adoption by Indian tribes. § 252. Adoption in a North American Indian tribe, according to our legislation,1 involves a change of political allegiance and of personal law as well as of family relations. The person adopted loses full citizenship in the United States, and in the particular state in which he previously resided, and becomes nationalized in the tribe of his adoption. He no longer is taxable by either federal or state authorities, nor is he liable to suit, in either federal or state court, by other members of his tribe. He may be indicted, it is true, in state or territorial courts for crimes committed by him on persons not of his tribe; but for offences against members of his tribe he is only justiciable before the tribal authorities. So far as concerns his domestic relations, he is governed, not by territorial, but by tribal law. When living within the tribal reservation he is not indictable for polygamy, should he have two wives; though it would be otherwise should he leave the reservation and undertake to carry his two wives with him into non-tribal life. In case of his contracting in the tribe a marriage not monogamous, this marriage, though valid in the tribe, would be considered invalid by state or federal courts. He inherits, after adoption, in accordance with tribal law; but in those tribes (forming a great majority) in which succession is only through women, only through the adoptive mother or the adoptive sister. In short, while he retains his subjection to the territorial government (state or federal, as the case may be), in all that relates to transactions outside of the tribe; so far as concerns transactions within the tribe, his allegiance is to the tribe, and he is governed exclusively by tribal law. In addition to this, he becomes a member of the family by which he is specially adopted.* child have removed their domicil into Massachusetts, to inherit the real estate of such parent in Massachusetts upon his dying intestate. This question was decided in the affirmative by the court, Gray, C. J., giving its opinion, portions of which have been cited supra, § 241. 1 Supra, § 9. 2 Supra, § 130. S. v. Ragsdale, Hemp. 497; 2 Op. 4 The special mode of adoption in families is given in Hunter's Memoirs of Captivity among the Indian Tribes, London, 1823, pp. 13 et seq., Phil., 1823, p. 235, and in John Tanner's Narrative of Captivity, N. Y. 1830, p. 30. In Schoolcraft's great work on the History, Condition, and Prospects 8 U. S. v. Rogers, 4 How. 571; U. of the Indian Tribes, published by Congress in 1851 (5 vols.), under the III. PATERNAL POWER. 1. As to Person. § 253. By the advocates of the ubiquity of status it is maintained that a father's prerogatives follow him wherever Paternal he goes, unless their exercise is forbidden by the spe- person reg titles, Manners and Customs, and Tribal Organization, will be found the practice of various tribes in this relation. In this work numerous instances of adoption of white children into Indian families are given, such adoption bringing with it the duties and privileges attached to such families. The history of our Indian legislation is given with great accuracy and fulness by Colonel Otis, in a book called the Indian Question, N. Y. Sheldon & Co. 1878, and the complications arising from our recognition of Indian adoption are noticed, p. 141. The conclusion reached by this able writer, that we should sweep away the tribal organizations, and subject the Indians to territorial law, is open, however, to serious objections. Waiving the question of our right to destroy, under the Constitution, tribal sovereignty, it will be a task exceedingly difficult to frame a code to which Indians can be properly subjected. It is admitted, and properly, by Colonel Otis, that the codes of civilized states will not answer for this purpose. But how can we form a special code for Indians without conflicting with the fourteenth and fifteenth amendments? And if we could, would not a less stringent moral system (e. g. as to marriage) established by us among Indians, give the sanction of government to this system throughout the whole land? power over come unalterably attached to their customs, and seldom abandon them." He adds: "I have known two instances of white persons, who had arrived at manhood, leaving their connections and civilized habits, assuming the Indian's, and fulfilling all his duties. These, however, happened among the Cherokees." There are several cases reported by the Moravians of white persons, adopted in infancy in Indian tribes, and afterwards recovered by their friends, who resolutely returned to the tribes of their adoption. Madame Montour's case, detailed in the Pennsylvania Magazine for 1880, is an illustration of the determination with which tribal life, when adopted, will be clung to. Madame Montour, according to the statement of Conrad Weiser, as given by Schoolcraft, was of French parentage, and voluntarily accepted an Indian adoption. On Indian usages in this respect see McCoy's Hist. Bapt. Ind. Miss. (1840); Friends' Efforts to civilize Indians (1866-7); Shea's History of Catholic Missions (1875); on tribal government, Bancroft's Native Races of the Pacific States (1876), vol. v. Index, tit. Government; on the treaties of tribal organization, Moneypenny, Our Indian Wards (1880), pp. 92–150. By leaving his tribe, an Indian loses his Indian domicil and nationality. Kenyon, ex parte, 5 Dill. 385. Otherwise Indian domicil controls. Davis v. Davis, 1 Abb. N. C. 640. See 15 Am. Law Rev. 21. ulated by place of residence. cial policy of states which he visits. The domicil which thus gives the law is that, according to high authority, of the father at the time of the birth of the child. But this rule cannot be accepted as binding.2 The power, for instance, given to parents in Germany and Switzerland, of interfering with their children's marriages, is one that cannot be tolerated in England or the United States.3 On several occasions have the municipal authorities in New York been compelled to intervene to prevent the use of arbitrary paternal power by Italian parents; and the same interference has been found necessary in San Francisco in respect to the Chinese. And any attempt on the part of a parent to illegally imprison or chastise a child becomes an offence against the particular country in which it takes place, and will be dealt with by the lex loci. On the other hand, there have been German and Scotch jurists who have professed to be staggered at the license the English common law gives to husband and father in the line of physical chastisement.5 Father's right to custody governed by local law. § 254. The question of a father's right to the custody and education of his children is usually raised in England and in the United States either by a writ of habeas corpus, or by an application to the local court having chancery guardianship over infants. In such cases local policy determines how far, and under what terms, a foreign father is 1 Savigny, viii. 380; Phillimore, iv. 351. Compare Dr. Behrend's discussion of the Law of Family, in Holtzendorff's Encyclopædie, Leipzig, 1870, p. 400. though it is true that the parental authority over such a child is recognized, the authority so recognized is only that which exists by the law of England. If, by the law of the country to which the parties belonged, the See Sherwood v. Ray, 1 Moore P. authority of the father was much more C. 398. extensive and arbitrary than in this 4 See cases in Whart. Crim. Law, country, is it supposed that a father 2 See supra, § 116. 8th ed. §§ 631, 1563. would be permitted here to transgress 5 Fergusson on Mar. & Div. 399; the power which the law of this country Wächter, § 23. Supra, § 116. Lord Cottenham thus discusses this point: "It was urged that the court must recognize the authority of a foreign tutor and curator, because it recognizes the authority of the parent of a foreign child. This illustration proves directly the reverse; for al354 allows? If not, then the law of this country regulates the authority of the parent of a foreign child living in England by the laws of England, and not by the laws of the country to which the child belongs." Johnstone v. Beattie, 10 Cl. & Fin. 114. See, as to qualifications of this case, infra, § 261. entitled to such custody. An interesting question arises under foreign laws, providing that the sons of mixed marriages are to be brought up in the religion of the father; the daughters in the religion of the mother. It will not be pretended that a law so distinctively local in its policy would be enforced extra-territorially. The question of a father's right to change a child's domicil has been already discussed.3 The question of a foreign father's right to guardianship will be hereafter noticed.1 2. As to Property. child's dependent § 255. As a general rule, the right of the father to the property and earnings of the child is to be governed, so far as Father's concerns the modern common Roman law, by the law right to of the father's actual domicil.5 By the present French movables Civil Code the same rule is established." Judge Story on law of gives at length the views of the older European jurists, domicil. which, expressed before the theory of domicil had taken positive shape, were indistinct and conflicting. He declares his own view as follows: "The common law" (i. e. that of England) "has avoided all these difficulties by a simple and uniform test. It declares that the law of the situs shall exclusively govern in regard to all rights, interests, and titles, in and to immovable property." But as to movables the English rule is that the law of the father's domicil is to determine.9 § 256. By those who claim that the law of domicil defines the See Bouhier, ch. 24, No. 47. 7 §§ 456, 457. 8 § 463. 9 In Gambier v. Gambier (1835), 7 Sim. 263, it was virtually ruled that parental power over the child's movables is determined by the domicil of the child at the time. Phillimore, iv. 354; Westlake (1880), § 8. Hellman, in re, L. R. 2 Eq. 363, apparently contra, Mr. Westlake thinks may be explained on grounds of judicial discretion. But see supra, §§ 102, 118; infra, § 268. As to father's right to guardianship, see infra, § 263. |