Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February M, «893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE 30H00L By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library K 7040.W52 1859 3 1924 021 990 704 Cornell University Library The original of tiiis bool< 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/cu31924021990704 TEEATISE \xiMt Mtxmfwml THE CONFLICT OF LAWS, WITH PRINCIPAL REFERENCE TO ITS PRACTICE IN THE ENGLISH AND OTHER COGNATE SYSTEMS OF JURISPRUDENCE, AND NUMEKOUS REFERENCES TO AMERICAN AUTHORITIES, BY JOHN ^ESTLAKE, OP LINCOLN'S INN, ESQ., BARBISTER-AT-LAW, AND FELLOW OP TEINITI COLLEGE, CAMBRIDGE. PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW BOOKSELLERS AND PUBLISHERS, No. 535 CHESTNUT STKEET. 185 9. Bobb, Pile & M'Blroy, Pr'a Xodga Street, Philada, CONTENTS. The pages referred to are those between brackets [ ]. Chap. I. — Definition of the Subject ..... 1 II. — National Character. 1. History of the Doctrine of Allegiance in England and France ...... 5 2. Present State of the Doctrine of National Character 15 III. — Domicile ....... 28 IV. — Immovables. 1. Introduction 2. Jurisdiction 3. Principle of Lex Situs 4. Extent of Lex Situs as to Things and Rights connected with Immovables .... 5. Incidents to the Property in Immovables 6. Forms required for the Transfer of Immovables by the Owner ...... 7. Capacity of the Owner to transfer Immovables 8. Transfer of Immovables, and Creation of Rights in them, by Force of Law 9. Effect and Evidence of the Contract of Sale . V. — Jurisdiction on Obligations . . ' . 1. History and Principles 2. English Doctrines .... 3. Extraterritoriality .... VI. — Principles op the International Obligation op Law. 1. Theories of the Reality and Personality of Statutes, and of the Comity of Nations 2. Principles of the Law common to the Parties, and of the Law of the Defendant 3. Various Modern Systems VII. — International Law op Obligations. 1. Formal Requisites of Obligations 2. Material Contents of Obligations 3. Transfer of Obligations 62 56 62 67 69 71 77 78 85 88 89 104 114 122 131 147 159 170 225 4. Extinction of Obligations . . . 229 iv ■WESTLAKE ON PRIVATE INTERNATIONAL LAW. Chap.— VIII.— Movables . . . . . .243 IX. — Bankroptcy and Insolvency . . . 262 X. — Movable Successions. 1. Jurisdiction as to the Movable Property of a Deceased Person ...... 279 2. Succession to Movables by Destination of Law . 299 3. Validity of Wills of Movables . . . 304 4. Construction and Operation of Wills of Movables . 310 XI. — Marriage. 1. Constitution of the Marriage .... 315 2. Divorce ...... 330 3. Pecuniary Effects of the Marriage . . . 352 XII. — FoREtGN Judgments against the Person . . 361 Xin. — Status . . . . . . .379 XIV. — Procedure ...... 390 IsDEX ......... 395 PREFACE. The following work treats of private international jurisprudence, but regarded as a department of English law; and on the subject so defined it undertakes to furnish the profession with a volume at once compen- dious and useful. Such an undertaking imposed both positive and negative duties. First in the former class I reckon the duty of taking as groundwork the English decisions, and not the writings of foreign jurists, though using the latter freely for collateral and subordinate purposes. Such a course implies no disrespect to the great foreign lawyers who have created this portion of juristic science, but is made necessary by the binding authority of precedents among us, from the moment at least that enough of those precedents has accumulated to cover the field; and that this time has arrivefl is shown by the number of English cases here collected, whatever be the merit of any particular deduction I have made from them. I hope indeed that our cases, though I have some- times been obliged to dissent from them, will appear from the present work to contain on the whole a connected and reasonable system of private international jurisprudence. Next, if it be not a part of the same duty, was that of suiting the order of treatment to the common classifications of English law. Per- sonal relations occupy in our jurisprudence so small a space as com- pared with pecuniary, and our subdivision of the latter into those of real and personal property is so unlike the common subdivision into the relations of property and obligation, that to have set out from the law and jurisdiction affecting the person as such, or to have developed the international law of property in one chapter, would have vastly increased the^diflSculty of founding a connected system on the English deeisions, besides perhaps bewildering the English student. Indeed, in the arrano-ement, I have mainly considered the order in which a student vi WBSTLAKB ON PRIVATE INTERNATIONAL LAW. reading the work as a whole had best be introduced to its topics ; and have therefore not shrunk from letting principles be first seen in par- ticular applications, or from any other course which seemed to carry him on most naturally from the knowledge with which he may be pre- sumed to start. The practising lawyer is more likely to refer to the book than to peruse it, and I trust the index may be found copious enough to guide him readily to what he may require. The negative duties of my undertaking— were not to treat ex professo of topics which neither illustrate principles nor enter into English prac- tice, although their importance in foreign legal systems may have caused them to occupy a more or less prominent place in other trea- tises ; and to observe strictly the limits of my subject. Thus, for example, the rights of aliens in England, and the questions which have been raised on our statutes of copyright as to works composed and pub- lished abroad, belong to English law as speaking for itself, and not as adopting international maxims : while the occasional acts of sovereign states, as distinguished from their regular laws, and the laws of war, with the modifications introduced into them by treaties, though often in question in private causes, must be discussed on public international principles. Criminal jurisprudence also does not fall within the ^ope of private law : and my subject, within its own limits, is vast enough. Lincoln's Txn, November Wth, 1858. LIST OF CASES CITED. The pages referred to are those between brackets [ ]. Abraham v. Dubois 170 Abrahams v. Skinner 167 Acebal v. Levy 165, 166 Acklam, Doe v. 23, 27 Adair, Anstruther v. 357 Adam, Ee 24 Adams, Forbes v. 357 Advocate-General, Thomson v. 27, 303 Albion Insurance Co. v. Mills 178 Alivon V. Furnival 264, 365, 375 Allan, Phillips v. 240 Allen V. Anderson 75 T. Kemble 212, 213 Allison V. Catley 345 'Alves V. Hodgson 163 American Life Insurance and Trust Co., Mumford v. 209 Anderson, Allen v. 75 V. Gaunter 288 V. Drake 220 , Laneuville v. 46 Andrews v. His Creditors 276 Angell, Pellecat v. 184, 187 Anglesea, Phipps v. 76 Angus V. Angus 60 Anon., 9 Mod. 66 302 , 2 P. W. 75 136 Anstruther v. Adair 357 T. Ohalmer 311 Arayo v. Currell 198, 201 Archbold, Harvey y. 193 Archer v. Preston ^ 59 Ardaseer Cursetjee v. Perozeboy« 140 Arglasse v. Muschamp 59 Arkwright, Doe v. 27 Arnold v. Arnold 303 Arnott V. Eedfern 217,374 Arthur v. Hughes 288 Athlone Peerage 13, 22 Atkins V. Smith 290 Atkinson v. Blake 107 Att.-Geu. V. Beatson 303 V. Bouwens 303 V. Cockerell 303 V. Dimond 303 Att.-Gen. v. Hope 303 V. Jackson or Forbes 303 V. Lepine 259 V. Mill 69 V. Stewart 138 Aubery, Provost, &c. of Edin- burgh V. 259 Audley, Chetham v. 292 Aves, Commonwealth v. 183 Aymar v. Sheldon 212 Bacon's case 11, 12, 22 Bain v. Whitehaven and Furness Junction Railway Co. 392 Baker, Johnstone v. 68 Baldwin v. Gray 197, 208 ■ — , Lewis V. Ill Balfour v. Scott 71-, 300 Ballantine v. Golding 237 Ballister v. Hamilton 217 Baltica, The 38 BaltiEiore, Penn v. 59 Bank of Augusta v. Earle 209 Australasia v. Harding 375, 376 V. Nias 372, 373, 375, 376 England, City ofBerne v. 117 , De la Chau- mette v. 226 Rochester v. Gray 210 ■ United States, Merchants' Bank v. 259 Bannister, Moodi« V. 110 Barber, Cockerell v. 292, 312 V. Root 335 Barclay, Taylor v. 185 , Thompson V. 185 Bard v. Poole 209 Barker V. Damer 106 Barney v. Newcomb 226 Baron de Bode's case 394 Barrett v. Barrett 228 Barry, Brodie v. 68, 75, 302 Bartlett v. Smith 169 viii ■WBSTLAKB ON PRIVATE INTE EN ATIONAL LAW. Bartlett, TerrittT. 206 Eassford, Kentucky V. 177 Baxter, Jernagan v. 288 Byley v. Edwards 101p376, 377 Bazett V. Meyer 188 , Simeon v. 188 Bearcroft, Compton v. 326 Beatson, Att.-Gen. v. 303 Beattie, Johnstone v. 384, 385 Beauchamp v. Huntley 114 Beavan v. Hastings 289 Beazley, Conway v. 341, 345 Beckford v. Kemble 59, 114 Becquet v. M'Carthy 369 Begrez, Fisher v. 116 Behrens v. Sieyeking 377 Belisario, Lindo v. 144 Bell, Harmer v. 260 , Tyler t. 288 Bellamont, Connor V. *192 Bellamy, Bodily r. 192 Bempde v. Johnstone 31, 48 Benatar v. Smith 69 Benedict, The 47 Benham v. Mornington 162, 393 Bennison v. Jewison - 169 Bent V. Young 59, 111 Bentley v. Northouse 227 , Scott T. 387 Bernal v. Bernal 311, 313 Bernard, Fryer v. 59 Berne, City of v. Bank of England 117 Bernes, Stanley v. 37, 307 Bertram V. Duhamel 218 Bevan, Scott V. 218 Bickley, Brodie v. 289 Bifield V. Taylor 161 Biggs V. Lawrence 184 Bingham, Ommaney T. 43, 310 Bircham, Currie v. 287 Bire v. Moreau 170 Birtwhistle v. Vardill 79, 389 Blake, Atkinson y. 107 Blakeman, Hovey v. 292 Blakes, Exp. 271 Bland, Robinson v. 179, 181 Blankard t. Galdy 136 Bligh, Obicini v. 363, 364, 369 Boardman, Taylor v. 257 Bodily V. Bellamy 192 Bohm V. Campbell 168 Bohtlink v. Schneider 395 Bold Buccleugh, The 260 Bond V.Graham 288 Bonneval, De, 1 . De Bonneval 36, 45, 280 Book, Dalkeith v. 86 Booth V. Leycester 376 Boucher v. Lawson 186 Boucier v. Lanusse 358 Boulanger, Talleyrand v. 391 Bourke v. Ricketts 303 Bouwens, Att.-Gen. t. 303 Bowaman v. Reeve 302 Bowler, Dundas v. Bowles V. Orr Braidwood, Cowan t. 367, Brampton, Inhabitants of, King v. Braynard v. Marshall Bremer v. Freeman 33, 37, 42, Brettilot v. Sandos Brickwood t. Miller Bridport, Nelson v. 70, 75, Bridge, Montgomery v. Brightwell, Wallis v. Bristow T. Sequeville 163, British Linen Co. v. Drummond Brodbelt, Raymond v. Brodie v. Barry 68, 75, T. Bickley Brook ¥. Brook Brooks, Thayer v. Brown v. Gracey , Leroux v. , Potter T. T. Smith , Smith y. 67, 27, 37, J of 119, Bruce, Re Bruce v. Bruce Bruck, Hamelin T. Brunswick, Duke of, v. Kinj Hanover Bryans v. Dunseth Buccleugh V. Hoare Buchanan v. Rucker , Smith T. Bnnbury v. Bunbury 60, Burgess, Kent t. Burn V. Cole V. Farrar Burnham, Stearns v. Burrows v. Jemino (Jamereau) 212, Burslem, Lopez t. Burton, Exp. 237, , Egginton v. V. Fisher Bushby v. Munday Butler Y. Freeman , Harper t. Bryan v. Bryan Cadell T. Grant Cairns, Denston v. Caldwell v. Vanvlissengen Callandar v. Dittrich Callender, Wynne t. Calvin's case Cambioso r. Maffet Campbell, Bohm v. • T. Dent , Duncan v. V. French T. Graham , Meiklan v. 291 V. Steiner 234, Canham, Gold v. Cannan, Duncan v. Carr v. Shaw 75 374 368 145 238 121 391 273 394 216 312 164 235 303 302 289 328 224 393 161 237 43 182 303 300 168 120 232 69 369 240 114 324 280 145 228 377 392 240 no 47 113 324 223 358 259 220 377 179 9 177 168 215 357 356 312 296 235 372 357 227 LIST OF CASES CITED. IX Carroll, Guinness v. 375 Carronlron Co. v.Maclaren 50, 110, 111 Carteret v. Petty 59 , Toller T. 59 Cash V. Kennlon 219 Catherwood, James V. 163,164 Catley, Allison v. 345 Caunter, Anderson v. 288 Cavau V. Stewart 369 Cazalet, Newman v. 196 Chalmer, Anstruther v. 311 Champante, Ranelagh V. 192 Chandler V. Chandler 351 , Fiskv. 258 Chapman v. Robertson, 194 Chapel, Talmago v. 286 Chetham v. Audley 292 Chevalier, Exp., re Vanzeller 274 Chilton, Heathfield v. 116 Clarke v. Ormonde 60, 114 Clegg V. Levy, 163, 395 Clugas T. Penaluna 184 Cochrane, Forbes v. 182 Cockerell, Att.-Gen. v. 303 V. Barber 293, 312 V. Dickens 61, 271, 272 395 Cocks V. Purday Cole, Burn v. Collier v. Rivas Columbian Government v. Roths^ child Colston, Quarrier v. Colville v. Lander Commissioners, &c. v. Devereux Commonwealth t. Aves Compton V. Bearcroft Connelly v. Connelly Connor v. Bellamont Consequa v. Panning Conway, Case of Countess de V. Beazley Stapleton v. 280 36 Cook V. Gregson V. Litchfield Coon, Nat v. Cooper T. Waldegrave Cope ¥. Doherty Coppin V. Coppin Corbett, Donnelly v. Corbin, Fernandez v. Cosio V. De Bernales Cotesworth, Exp., re Vanzeller Cottingham, Neale v. Cottington's case Cowan V. Braidwood Coxe, Mackey v. Craig, Douglas v. Craigie T. Lewin Cranstown v. Johnston Creditors, His, t. Andrews , Saul T. Cridland, Exp. Crowe V. Del Rio Cruikshank v. Robarts 118 179 40 27 183 326 334 192 217 22 341, 345 192, 194 292, 293 211 308 216, 220 223, 260 74 239 107 387 274 264 372, 378 367, 368 286 393 38, 42 59, 60 276 353 275 111 378 Cunningham v. Gainer 75 Curling v. Thornton 306 , Thornton v. 311 Currell, Arayo v. 198, 201 Currie v. Bircham 287 , Rothschild v. 211, 212 Curtis, Greenwood v. 182 T. Hutton 69 Cust V. Goring 69 Cuthbert, Royal Bank of Scot- land, V. 60, 240, 264 Da Costa, Sylva v. 384 Dalhousie v. M'Douall 43, 388 Dalkeith t. Book 86 Dalrymple v. Dalrymple 326 Damer, Barker t. 106 Daniel v. Lucre 285, 286 Danell, Moore v. 307 Dash, Graves v. Davidson v. Hastings Davies, Selkrig v. Davis's heirs. Gale v. V. Hole 221 108 60, 262, 264, 277 353 107 297, 299 387 394 Daws V. Head De Bernales, Cosio v. De Bode's, Baron, case De Bonneval v. De Bonneval 36, 45, 280 Decaix, M'Carthy v. 340 De Conway, Case of Countess 22 De la Chaumette v. Bank of Eng- land 226 De la Vega V. Vianna 146,391 Delegal v. Naylor 218 Del Rio, Crowe v. Ill Denston v. Cairna 220 Dent, Campbell v. 215 , Regina v. 395 Depau V. Humphreys 194 Deponthieu, Jollet v. 264 De Rottenham, Murray v. 241 De Roven, Diipleix v. 365 D'Evereux, Macnamara v. 185 Devereux, Commissioners, &c. v. 27 De Wall, Case of representatives of Count 22 Dewar v. Span 193 Dewhurst, Price v. 279, 310, 374 De Wolf ¥. Johnson 179, 194 De Wutz V. Hendricks 185 De Zichy Ferraris v. Hertford 306, 307 Dibbs V. Goren 110 Dickens, Cockerell v. 61, 271, 272 Dimond, Att.-Gen. v. 303 Dittrick, Callandar v. 377 Dixon v. Dixon's executors 353 Dobree, Exp. 266 Doe T. Acklam 23, 27 V. Arkwright 27 v. Jones 11, 12 T. Mulcaster 27 Doherty, Cope v. 223, 260 Dolores, The Nostra Signora de los 146 261 WESTLAKE ON PRIVATE INTBKNATION AL LAW. Dolphin, Robins v. Don V. Lippmanu 176, 233 Don's estate, Re Donegall, Houlditch v. Donegani T. Donegani Donnelly t. Corbett Donovan, Page t. Doolittle V. Lewis Dormer, Williams v. Dorsey v. Dorsey Douglas V. Craig V. Forest , Munroe v. Doulson V. Matthews Dowdale's case Drake, Anderson v. , Saunders T. Druce, Heimers t. Drummond's case 345 235, 372 389 311, 365, 372 24 239 306 286, 310 42 341 393 367, 369 38, 40, 42 105 290 220 312 372, 374 • 24 37 , British Linen Co. v. 235 ■ — V. Drummond 68, 302 Dubois, Abraham v. 170 Dues V. Smith 356 Duhamel, Bertram T. 218 , Steadman v. 170 Dumergue, Valine v. 370 Dumfries, The 146, 260 Duncan v. Campbell 357 V. Cannan 357 Dundas, Bowler v. 75 V. Dundas 75 Dungannon v. Hackett 192 Dunlop, Innes v. 225 Dunsany, Wilson v. 295 Dunseth, Bryans v. 232 Dupleix V. De Roven 365 Durant, Lamb v. 251 Dutch Rhenish Railway Company, SudlowT. HI, 197 Eades, Hughes v. 110 Eagar, Naylor V. 377 Earle, Bank of Augusta v. 209 East India Co., Ekins T. 216, 218, 222 , Harvey v. 192 , Mayor of Lyons V. 138, 142, 260 ■ — ■ , Skinner v. 105 Edinburg, Provost, &c.of, v.Aubery 259 Edwards, Bayley v. V. Ronald Eenrom, The Egginton v. Burton Eiffe, Lamond v. Ekins V. East India Co. Ellefsen, Imlay v. Elliott V. Minto Ellis V. Loyd Emery v. Hill Ennis v. Smith Este V. Smyth ISustace, Kildare v. Ewer, Walpole v. Ewin, Re 101, 216, 324,357, 376, 377 240, 241 186 110 107 218, 222 377, 391 68, 302 192 259 394 358 59 196 303 Fabrigas, Mostyn v. Fairlie, Freeman v. , Logan V. , Lowe V. Fanning, Consequa y, Farrar, Burn v. Fell, Gardiner v. Fenton, Reynolds v. Ferguson v. Flower V. Mahon Fergusson v. Fyffe Fernandez v. Corbin Fisher v. Begrez , Burton v. , Scribner v. Fisk v. Chandler Fitch v. Weber Fitzjames, Melan v. Flack V. Holm Fletcher, Lever v. , Planch^ y. Flower, Ferguson v. , Tourton v. Folliott y. Ogden Forbes y. Adams , Att.-Gen. v. V. Cochrane • y. Forbes Forrest, Douglas v. Foster v. Vassall Foubert y. Turst Fowler y. Richards Francis v. Rucker Frankland v. M'Gusty Freeman, Bremer y. , Butler y. V. Fairlie Fremont, Gibbs v. French, Campbell y. Fryer v. Bernard Furnival, Alivon v. FyfFe, Ferguson y. 105, 106 292 288, 303 288 217' 145 141, 142 368 208 369 193, 235 107 116 47 239 258 24 391 391 186 187 208 279 386 257 303 182 38, 42, 43, 46 367, 369 60 357, 358 288 222 375 33, 37, 42, 121 324 292 221 356 59 264,365, 375 193, 235 371, 141, Gage y. Stafford Gainer, Cunningham v. Galbraith v. Neville Galdy, Blankard v. Gale V. Davis's heirs Gambler v. Gambler Garcia del Rio, Jones v. Garcias, Ricardo v. Gardiner y. Fell Gardner, Journeay v. Garetty, Winchelsea Garnet, Pierson y. Garnett, M'Cormick v. , Stewart v. Garvan, Roach y. Geddes, Exp., re Mowat Geils V. Geils General Steam Navigation Co. v. Guillou 146, 367, 377 Genesee Mutual Insurance Co., Western y. 206 395 75 372 136 353 387 185 376 142 ' 241 302 312 356, 393 312 326, 378 264, 277 345, 351 LIST OP CASES CITED. XI Genesee Mutaal Insurance Co. v. Westman Gibbes, M'Blair v. Gibbons, Molony v. G-ibbs V. Fremont Gilchrist's -case Giovanetti v. Orsini Girolamo, Tlie Glyn, Queen of Portugal v. Gold V. Canham Goldiag, Ballantine v. Goldsmid, Exp. Goodnow, HydeT. Goold, Richards v. Goren, Dibbs v. Goring, Gust v. Gould, Smith t. Gout V. Zimmermann Gracey, Brown v. Graham, Bond v. , Campbell y. ■ — — , Milne v. 68, Grant, Cadell v. T. Healey V. M'Lachlia 207 228 368 221 37 322 146 118 372 237 274 206 161 ■ 110 69 393 44 393 288 312 227 259 217 244 221 187, 208 210 182 292, 293 193 Graves V. Dash Gray, Baldwin v. , Bank of Rochester Y. Greenwood v. Curtis Gregson, Cook v. Guillebert, Exp. re Tyre Guillou, General Steam Navigation Co. V. 146, 367, 377 Guinness v. Carroll 375 Gurney, Harrison V. 60,114 Gwyn, Nichol v. 107 Haekett, Dungannon V. 3 92 Hackwood v. Lockerby 107 Hall V. Odher 364, 376 , White V. 60 Hamelin v. Bruck 168 Hamilton, Ballister v. 217 Hankey, Tatnall v. 309 Hanover, King of, Duke of Bruns- wick v. 119, 120 Hanson v. Walker 293 Hare v. Nasmyth 280, 306 Harding, Bank of Australasia v. 375, 376 Harford v. Morris Harmer v. Bell Harper v. Butler Harris, Spratt v. Harrison v. Gurney Hartley, Tulloch v, Harvey v. Archbold V, East India Co, Hastings, Beavan v. , Davidson v. Hay, Sidaway v. Head, Dawes v. Healey, Grant v. Heath v. Samson 326 260 228 291 60, 114 59, 392 193 192 289 108 240, 241 297, 299 217 37, 45 Heathfield v. Chilton Heinrick, Millar v. Henderson v. Henderson 364, Hendricks, De Wiitz v. Hendrie, Oliphant v. Henley v. Soper Hepburn v. Toledano Herbert v. Herbert , Jerningham v. Heriz v. Riera Hemes, Pollard v. Hertford, De Zichy Ferraris v. Hibbard, Peck v. Hibernian Mine Co., Smith v. Higgins, Lacon v. Hill, Emery v. Hitchcock V. Hunter Hodfe, Buccleugh v. , Pike V. Hodgson, Alves v. Hog V. Lashley 300, 310, Holdsworth v. Hunter Hole, Davis v. Holme, Flack v. Holman v. Johnson Holmes v. Rensen Hooe, Mahorner v. Hope, Att.-Gen. v. V. Hope Horseman, Newland v. Houlditch V. Donegall 361, Honstoun, Re Hovey v. Blakeman Huber v. Steiner Huet V. Le Mesurier Hughes, Arthur v. V. Eades Hullet V. King of Spain , King of Spain v. Hume, Whicker v. Humphreys, Depau v. Hunter, Hitchcock v. , Holdsworth v. , Philips V. 145, 243, ■ V. Potts 145, Huntley, Beaucham v. Huthwaite v. Phaire Hutton, Curtis v. Hyde v. Goodnow Iha V. Rae Imlay v. EUefsen Indian Chief, The Inglis V. Usherwood Innes v. Dunlop V. Mitchell , Sandilands v. 116 395 366,372, 373, 376 185 259 366 220 324, 328 68 177 227 306, 307 220, 238 110 324, 394 259 107 69 59 163 356, 360 168 107 391 184 271 314 303 184 376 365, 372 384 292 146, 235 383 288 110 117, 118 118 37, 45 194 107 168 265, 267, 371 265, 267 114 284, 286 69 206 304 377, 391 40 256 225 296,374 288 Jacks V. Nichols 194, 220 Jackson, (or Forbes,) Att.-Gen. v. 303 V. Petrie 59 , Wynne v. 163 WESTLAKE ON PRIVATE INTERNATIONAL LAW. Jamerau, Burrows t. 212, 311 James v. Catherwood 163, 164 Jaaverin, Middleton t. 324 Jauncy v. Sealy 287 Jeffery v. M'Taggart 225, 390 Jemino, (Jamereau,) Burrows v. 212, Jenkins, Thuret T. 251, 255 Jephson v. Riera 27, 84 Jernegan v. Baxter 288 Jerningham v. Herbert 68 Jewison, Bennison v. 169 Johnson, De Wolf T. 179,194 , Holman v. 184 V. Telford 75 Johnston, Cranstown v. 59, 60 Johnstone v. Baker 68 V. Beattie 384, 385 , Bempde V. 3P, 48 Jollet V. Deponthieu 264 Jones, Doe v. 11, 12 T. Garcia del Rio 185 Jonge Klassina, The 41 Journeayv. Gardner 241 Kelly, Swift v. 324 Kemble, Allen t. 212, 213 , Beckford v. 59, Kenniou, Cash v. Kent V. Burgess Kentucky v. Bassford Kildare v. Eustace King V. Inhabitants of Brampton King of Hanover, Duke of Bruns- wick ¥. 119, King of Spain v. HuUet , Hullet V. 117, V. Machado Two Sicilies v. WiUcox Kingston, Case of Duchess of Kohn, Splitberger v. 114 219 324 177 59 145 120 118 118 117 393 306 227 Lacon v. Higgins 324, 394 Liimb v. Durant 251 Lamond v. Eiffe 107 Lane v. Nichols 192 Laneuville, Anderson v. 46 Lanfear v. Sumner 251 Lansdowne v. Lansdowne 76 Lanusse, Boucier v. 358 Larchin t. Willan 107 Larpent ¥. Sindry 280 Lashley, Hog v. 300, 310, 356, 360 Lauder, Colville v. 40 Lautour v. Teesdale 140 Lawrence, Biggs v. 184 Lawson, Boucher v. 186 Leavitt, Richardson r. 259 Le Chevalier v. Lynch 272 Le Feuvre v. Sullivan 241 Le Mesnrier, Huetv. 383 Lenox v. Un. Ins. Co. 196 Le Page, Ostell v. 37G, 377 Lepine, Att.-Gen. v. 259 Leroux v. Brown 161 Lever v. Fletcher 186 Levett's case 338 Levy, Acebal v. 165 166 , Clegg T. 163 395 Lewin, Craige v. 38, 42 Lewis V. Baldwin 111 , Doolittle T. 286 310 T. Owen 240 Leycester, Booth v. 376 Lindo V. Belisario 144 Lindsay, Tovey v. 337 344 346 Lippmanu, Don v. 176, 233 235 372 Litchfield, Cook v. ' 211 Lockerby, Hackwood v. 107 Lodge V. Phelps 225 226 Logan V. Fairlie 288 303 LoUey's case 339 Lopez V. Burslem 392 Louisiana State Insurance Co., Shiff V. 196 Lowe v. Fairlie 288 185 Loyd, Ellis v. 192 Lucre, Daniel v. 285 286 Ludlow V. Van Rensselaer 163 Lynch, Le Chevalier v. 272 V. M'Kenny 241 Lyons, Mayor of, v. East India Co. 138, 142, 230 M'Blair v. Gibbes 228 M'Carthy, Becquet v. 369 V. Decaix 340 ll'Cormick v. Garnett 356 393 JIacdonald's case 10 M'Douall, Dalhousie v. 43 388 M'Farland, Stephens v. 3ST M'Gregor v. Lowe 185 M'Gusty, Frankland v. 3 1 5 Machado, King of Spain v. 117 M'Intyre v. Parks 179 184 M^Kenny, Lynch v. 241 Mackenzie's goods 280 Mackey v. Coxe 2SD M'Kowu, Malpica v. 198, 200 201 M'Lachlin, Grant v. 244 Maclarea, Oarron Iron Co. v. 50,110 ,111 V. Stainton 50, 110 112 M'Leau v. Meek 289 M'Leod, Rose r. 240 V. Scbultze 393 Macmaster, Pedder v. 237 Macnamara v. D'Evereus 185 Macpherson v. Macpherson 311 M'Taggart, Jeffery v. 225 390 Madrazo v. Willes 182 Maffet, Cambioso v. 17T Mahon, Ferguson v. 369 Mahorner v. Hoo« 314 Malcolm v. Martin 303 Male V. Roberts 383 Malpica v. McKown 198, 200 201 Maltass v. Maltass 44 LIST OF CASES CITED. XIU Manning, Case of Maria Maraver's goods Marsli V. Putnam Marshall, Brayuard v. Martin, Maleolm v. V. Martin T. Nicolls Massie t. Watts Matthews, Doulson v. Maule T. Murray- Maxwell, Smith V. May, Wliarton v. Mayo, Pecks t. Meek, M'Lean v. Meeus v. Thellusson Meiklan v. Campbell Melan v. Fitzjames Melville, Preston v. Merchant's Bank v. Bank of United States Meyer, Bazett v. Meynell, Moore v. Middleton v. Janverin Mill, Att.-Gen. v. Millar v. Heinrich Miller, Brickwood v. Jlills, Albion Insurance Co. v. , Pattison v. Milne t. Graham V. Moreton Minet v. Vulliamy Mingay, Snaith t. Minto, Elliott v. 68, Mitchell, Inues v. 296, Moisson, Quelin v. Molony v. Gibbons Montgomery v. Bridge Moodie v. Bannister Moore t. Darell - — ^— V. Meynell, Moreau, Bir6 v. Moreton, Milne v. Mornington, Benham T. 162, Morris, Harford v. , Thatcher v. Mostyn v. Pabrigas 10-5, .Mottichund, Ruckmaboye v. Mowat, Re, exp. Geddes 264, Mulcaster, Doe T. Mnmford v. American Life Ins. and Trust Co. , Norrjs v. 22 280 241 238 303 58 372 51 105 376 324 114 221 289 370 291, 296 391 287, 291 259 188 108 324 69 395 273 178 178 227 258 259 167 302 374 237 368 216 110 307 108 170 258 393 326 229 106 236 277 27 Munday, Bushby v. Munro v. Munro T. Saunders Munroe v. Douglass Murray v. De Rottenham , Maule V. Muschamp, Arglasse v. Nasmyth, Hare t. Nat v. Coon Naylor, Delegal v. V. Bagar 209 251 113 36, 39, 388 83, 388 37,38, 40, 42 241 376 59 280, 306 308 218 377 Neale v. Cottingham 264 Nelson, The 200 V. Bridport 70,75,394 , Orcutt V. 205 Nesbitt, Scott v. 85 Neville, Galbraith v. 371, 372 Newcomb, Barney T. 226 Newland v. Horseman 376 Newman v. Cazalet 196 Nias, Bank of Australasia v. 372, 373, 375,376 Nichoiv. Gwyn 107 Nichols, Jacks v. 192 , Lane v. 194, 220 Nichols, Martin v. 372 , Smith T. 376 Nickerson, Pope v. 200, 201 Norris v. Mumford 251 North, Silver Lake Bank v. 209 Northouse, Bentley v. 227 Nostra Signora de los Dolores, The 146, 261 Novelli V. Rossi 374, 376, 377 Obicini v. Bligh O'Callaghan v. Thomond Odber, Hall v. Ogdeu, Folliott v. Oliphant V. Hendrie Olivier v. Townes Ommaney v. Bingham Orcutt v.- Nelson V. Orms Ormonde, Clarke v. Orms, Orcutt v. Orr, Bowles v. Orsini, Giovanetti v. Ory V. Winter Ostell V. Le Page Otto Lewis, Exp. Owen, Lewis v. Oxholm, Wolff V. Page V. Donovan Pannell v. Tayler Parks, M'Intyre v. Patrick v. Sheddea •, Shedden v. 363, 364, 369 225 364, 376 386 259 128, 251, 252 43, 310 205 283 60, 114 283 374 322 226 376, 377 384 249 399 306 108 179, 184 365 «3, 388 178 365, 374 220, 238 221 237 184, 187 184 Pattison v. Mills Paul V. Roy Peck V. Hibbard Pecks V. Mayo Pedder v. Macmaster Pellecat v. Angell Penaluna, Clugas v. Peun V. Baltimore 59 Pennant v. Simpson 217 Perozeboye, Ardaseer Cursetjee v. 14fl Pertreis v. Tondear 145 P«trie, Jackson v. 59 Pettv, Carteret v. 59 Phaire, Huthwaite v. 284, 286 Phelps, Lodge V. 225,226 Philips v. Hunter 145,243, 265,267,371 xiv WESTLAKE ON PRIVATE INTERNATIONAL LAW. Phillips T. Allan Phippg v. Anglesea Picton's case Piersou v. Garnett Pike v. Hoare Pipon V. Pipon Planche T Fletcher Plummer v. Woodburne Pollard, Exp. V. Berries Poole, Bard v. 200, 240 T6 394 312 59 279, 299 187 376 58 227 209 201 114 118 118 301 237 265, 267 • 196 185, 193 241 59 287, 291 279, 310, 374 145, Pope v. Nickerson Portarlington v. Soulby Portugal, Queen of, v. Glyn Rothschild t. Potinger t. Wightman Potter V. Brown Potts, Hunter v. Power T. Whitmore Powles, Thompson v. Prentiss v. Savage Preston, Archer v. V. Melville Price V. Dewhurst Professional Life Assurance Co. Sheehy v. 364, 368 Provost, &c., of Edinburgh v. Aubery 259 Purday, Cocks v. 395 Putnam, Marsh v. 241 •Quarrier v. Colston 179 Queen of Portugal v. Glyn 118 , Rothschilds y. 118 Quelin v. Moisson 237 Rae, Iha v. 304 Rafael V. Verelst 105 Ramsey v. Stevenson 259 Ranelagh v. Champante 192 Raymond v. Brodbelt 303 Read's goods 280 Read, Waymell v. 184 Redfern, Arnott v. 217, 374 Reeve, Bowaman v. 302 Regina v. Dent 395 Reid, Struther v. 264 Reimers v. Druce 372 374 Remsen, Holmes T. 271 Reynolds v. Penton 368 Ricardo v. Garcias 3 '76 Richards, Fowler v. 288 V. Goold 68, 161 Richardson v. Leavitt 259 Rickard, Sharpies v. 168 Ricketts, Bourke v. 303 Riera, Heriz v. 177 , Jephson v. 27, 84 Rivaz, Collier v. 36 Roach V. Garvan 326, 378 Robarts, Cruikshank v. 378 Roberdeau v. Rous 59 Roberts, Male v. 383 , Tickner v. 210 Robertson, Chapman y. Robins v. Dolphin , Sadler v. Robinson v. Bland Robatham v. Robotham Ronald, Edwards v. Root, Barber v. Rose V. M'Leod V. Ross , Whyte V. Ross, Rose v. , Solomons v. Rossi, Novelli v. 194 345 364 179, 181 351 240, 241 335 240 83, 388 284, 286 83. 388 ■ 264 374, 376, 377 283, Rothschild, Colombian Govern- ment V. • — V. Currie 211, V. Queen of Portugal 118 212 118 59 338 374 Rous, Roberdeau v. Rowland's case Roy, Paul v. 365 Royal Bank of Scotland v. Cuth- bert 60, 240, 264 Rucker, Exp. 67 , Buchanan v. 369 , Francis v. 222 Ruckmaboye v. Mottichund 236 Ruding v. Smith 144, 326 Russell V. Smyth 364 Ryan v. Ryan 334 , Whitmore v. 109 Sadler v. Robins St. Giorgio, Weatherby v. Samson, Heath v. Sandilands v. Junes Sandos, Brettilot v. Saul V. His Creditors Saunders v. Drake Munro v. 83, 71 364 291 37, 45 288 391 353 312 388 241 356 So 196 395 393 300 387 218 Savage, Prentiss v Sawer v. Shute Sayers v. Whitfield Schmidt v. United Insurance Co. Schneider, Bohtlink v. Schultze, M'Leod V. Scott, Balfour v. V. Bentley T. Bevan V. Nesbitt Scribner v. Fisher Scrimshire V. Scrimshire Sealey, Jauncy v. Selkrig v. Davies 60, 262, 264, 277 Sequeville, Bristow v. 163, 164 Sharp V. Taylor 187, 228 Sharpies v. Rickard 168 Shaw, Carr v. 227 v. Staughton 286 Shedden v. Patrick 83, 388 Patrick v. 365 239 324, 378 287 Sheehy v. Professional Life Assur- ance Co. 364, 368 Sheldon, Aymar v. 212 Shiff v. Louisiana State Ins. Co. 196 LIST OF CASES CITED, Shrimpton, Watts v. 358 Shute, Saweriv. 356 Sidaway v. Hay 240, 241 Sieveking, Behreus v. 311 Sill T. Worswick 145, 245, 265, 266, 267 Silver Lake Bank v. North 209 Simeon v. Bazett- 188 Simpson, Pennant v. 211 Simson, Wilkinson v. 69 Sinclair v. Sinclair 3T8 Sindry, Larpent v. 280 Skiff y. Solace 257 Skinner, Abrahams v. T. East India Co. Smith, Goods of James , Atkins V. , Bartlett v. , Benatar v. v. Brown , Brown v. T. Buchanan , Dues V. , Ennis v. v. Gould V. Hibernian Mine Co. T. Maxwell T. NicoUs , Ruding V. 16'7 105 44 290 169 69 67, 82 43 240 356 394 393 110 324 376 144, 326 167 257 264 Snaith v. Mingay Solace, Skiff v. Solomons T. Ross Somerville v. Somerville 34, 44, 45, 301 Smyth, Estev. 324,357,358 , Russell V. 364 Soulby, Portarlington t. 114 Soper, Henley v. 366 Spain, King of, v. HuUet 118 , HuUet V. 117, 118 V. Machado 117 Span, Dewar v. 193 Splitberger v. Kohn 227 Spratt T. Harris 291 Stacy V. Thrasher 289 Stafford, Gage v. 395 Stainton, Maclaren v. 50, 110, 112 Stanley T. Bernes 37,307 Standsfield,"Waterhouse v. 69 Stapleton v. Conway 192, 194 Staughton, Shaw v. 286 Steadman V. Duhamel 170 Stearns T. Burnham 228 Stein's case 60, 264, 273, 354 Stein T. Valkenhuysen 107 Steiner, Campbell v. 234, 235 , Huber v. 146, 235 Stephens v. M'Farlaud 387 Stevenson, Ramsey v. 259 Stewart, Att.-Geu. v. 138 , Cavan v. 369 V. Garnett 312 Stodder, Whiston v. 256 Strathmore Peerage 83, 388 Struther v. Reid 264 Sudlow v. Dutch Rhenish Railway Company 111, 197 Sullivan, Le Feuvre v. 241 Sumner, Lanfear v. 251 Sussex Peerage 325, 330, 394, 395 Swift V. Kelly 324 Sylva V. Da Costa 384 187, 185, Talleyrand v. Boulauger Talmage v. Chapel Tarleton v. Tarleton Tatnall v. Hankey Tayler, Pannell v. Taylor v. Barclay , Bifield V. V. Boardman , Sharp V. Teesdaie, Lautour v. Telford, Johnson v. Territt v. Bartlett Tewsh's case Tewsh, Utterton v. Thatcher v. Morris Thayer v. Brooks Thellusson, Meeus v. Thomond, O'Callaghan v. Thompson v. Barclay V. Powles , Vidal V. , Zipcey v. Thomson v. Advocate-General 27 V. Thomson , Tates V. Thorne v. Watkins Thornton v. Curling , Curling v. Thrasher, Stacy v. Thuret v. Jenkins Tickner v. Roberts Toledano, Hepburn v. Toller V. Carteret Tondear, Pertreis v. Tourton v. Flower Tovey v. Lindsay Townes, Olivier v. Trail, Twyford v. Trimbey v. Vignier Trevelyan's case Trotter v. Trotter Trye, Re, exp. Guillebert TuUoch V. Hartley Turst, Foubert v. Tyler v. Bell Two Sicilies, King of, v. Willcox Twyford v. Trail 391 286 371 309 108 185 161 257 228 140 75 206 338 345 229 224 370 225 185 193 164 259 303 228 313, 392 299 311 306 289 251, 255 210 220 59 145 279 337, 344, 346 128, 251, 252 288 227 338 311, 313 193 59, 392 357, 358 288 393 288 United Insurance Co., Lenox v. 196 , Schmidt v. 196 ITsherwood, Inglis v. 256 Utterton v. Tewsh 345 Valkenhuysen, Stein v. 107 Valine V. Dumergae 370 Van Rensselaer, Ludlow V. 163 svi WESTLAKB ON PRIVATE INTERNATIONAL LAW. Vanvlissengen, Caldwell v. 222 Vanzeller, Re, exp. Chevalier 2Y4 , Exp. Cotesworth 274 v. Vanzeller 197 Vardill, Birtwhistle T. 19, 389 Vassal], Foster v. 60 Vega, De la, v. Vianna 146 Verelst, Rafael v. 105 Vernon, The 146 Vianna, De la Vega V. 146,391 Vidal v. Thompson 164 Vignier, Trimbey T. 227 Vulliamy, Minet T. 259 Waldegrave, Cooper v. 216, 220 Walker, Hanson v. 293 V. Witter 365, 371 Wall, Case of representatives of Count de 22 Wallis V. Brightwell 312 Walpole V. Ewer 196 Warrender v. Warrender 232, 328, 337, 341, 346 Waterhouse v. Stansfield 69 Watkins, Thorne v. 299 Watts, Massie v. 57 V. Shrimpton 358 Way V. Tally 106 Waymell v. Read 184 Weatherby v. St. Giorgio 291 Weber, Fitch v. 24 Western v. Genesee Mutual Insu- rance Go. 206 Westman, Genesee Mutual Insu- rance Co. V. 207 Wharton v. May 114 Whicker v. Hume 37, 45 Whiston V. Stodder 256 White V. Hall 60 Whitehaven and Furness Junction Railway Co., Bain v. 392 Whitfield, Sayers v. 85 Whitmore, Power v. 196 V. Ryan 109 Whyte V. Rose 283, 284, 286 Wightman, Potinger v. 301 Wilkinson v. Simson 69 Willan, Larchin v. 107 Willcox, King of Two Sicilies v. 393 Willes, Madrazo v. 182 Williams v. Dormer 42 — ^ V. WilHams 357 Wilson V. Dunsany 295 Winchelsea v. Garetty 302 Winter, Ory v. 226 Witter, Walker v. 365, 371 Woodburne, Plummer v. 376 Wolff V. Oxholm 390 Worswick, Sill v. 145, 245, 265, 266, 267 Wright's Trust, Re 301, 388 Wynne v. Callander 179 V. Jackson 163 Yally, Way v. 106 Yates V. Thomson 313,392 Young, Bent v. 59, 111 Zimmermann, Gout v. 44 Zipcey v. Thompson 259 ZoUverein, The 146, 260 PRIYATE INTERNATIONAL LAW. CHAPTER I. DEPI'NITION OF THE STJBJECT. 1. Private International Law is that department of private jurispru- dence which determines before the courts of what nation each suit should be brought, and by the law of what nation it should be decided. It may be farther defined by its differences from the departments which respec- tively border on it — private municipal and public international law. 2. Public international law respects disputes between states, which acknowledge no human superior, and it is consequently not judicially administered : indeed it is therefore a great question whether it deserves the name of law in any other than a figurative sense. Private inter- national law respects the disputes between private persons, or at least, if a government be a party, it is then only when such government is considered as a private body in respect of its pecuniary rights ; and the cases to which it applies come before ordinary tribunals. The name of the subject is derived from those instances in which the parties, as members of different states, acknowledge no common human superior ; and we shall have to consider whether any, and what, prin- ciples of law, strictly so called, are applicable to such parties. But the subject includes also many questions arising between members of *the same state, and which are classed with the properly interna- |-^„-, tional ones from the similarity of the reasoning employed on tfiem. L J 3. Municipal law contemplates no exception to the jurisdiction but such as would carry the cause to another court of the same state ; but cases arise where the jurisdiction of the court is questioned, because that of the state is questioned, either over the person of a party generally, or in reference to the matter in dispute. Again, if the jurisdiction be granted, still a municipal law is sometimes invoked foreign to that com- monly administered by the court. For example, I become at my home a surety, and, relying on the law there existing, which we will suppose, allows me to require that the principal debtor be first proceeded against, I omit to stipulate expressly for that privilege ; then, through change of domicile or some other cause, being sued in a country where the general law does not provide that privilege for sureties, I say it would be unjust January, 1859 2 18 WBSTLAKE ON PEIVATB INTERNATIONAL LAW. that I should lose my advantage. Or again, if T marry where marriage is only a civil contraot, it may interest public morals no less than myself that my marriage should still be held valid, notwithstanding my removal to a country where a religious ceremony would have been necessary to it. In both these instances, the foreign law is invoked on account of facts which occurred beyond the jurisdiction, and such foreign facts may occur as well in the mutual dealings of members of the same state as in those of members of different states ; whence flows the result already mentioned, that many disputes between fellow-citizens are, from the similarity of the reasoning, included in private international jurispru- dence. 4. Private international law, then, regulates private rights as depend- ent on a diversity of municipal laws and jurisdictions, applicable, or conceivably applicable, to the persons, facts or things in dispute : where- r*q-i fore it is also *called The Conflict of Laws. Public international L J law often, and only, refers to municipal laws as furnishing analogies or principles : the conflict of laws treats them as of force in their own character, and its problem is to ascertain the principles on which any municipal law can, as such, be of force between members of different nations, or where extra-territorial facts or things are in dispute ; and to point out which municipal law must, on those principles, be applied in every particular case. These principles, too, must necessarily be arrived at by considerations external to all the several municipal laws which in any case may complete ; but, since this department of jurisprudence is administered by judges commissioned by human superiors, it follows that if the law of any state has expressly defined the limits of its own appli- cability, the judges of that state will be bound by such definition, how- ever incorrect in principle it may appear to them to be. It is only where the municipal law is silent as to its own limits, that the jurisprudence which is the subject of this Treatise admits of judicial enforcement. 5. The preliminary questions of this subject are two. First, how must it be determined of what n^ion each person is a member ? what are the rules concerning national character ? But then many nations include separate jurisdictions administering different laws, as the British, in which the several colonies and portions of the United Kingdom have each its own law ;^ and these diversities, no less than national ones, must occasion the conflict of laws : therefore, secondly, how are the members of such a nation permanently related to its several subdivisions ? by what rules is each citizen's domicile to be ascertained? -With these questions I shall therefore begin. They will determine the facts as to the -several persons, with whose rights, when they have been classed by nationality and domi- P^ . cile, we shall afterwards have to deal. There may of course be *dif- L J ferent domiciles within the empire of the same law, as within Eng- land or within Scotland ; but these will not give rise to international questions. Also the member of one nation may be domiciled in the ter- ritory of another, and it will be a point for us, whether and how that affects private international rights ; so that for this application also our investigation of the rules concerning domicile will have been indispen- sable. NATIONAL CHAKACTEE. 19 6. These preliminary questions disposed of, we shall have to consider the principles on which persons are amenable to municipal laws and jurisdictions, and to apply those principles to the determination of par- ticular cases. ^CHAl'TEK II. [*5] NATIONAL CHARACTER. 1. History of the Doctrine of Allegiance in England and France, 5. 2. Present State of the Doctrine of National Character, 15. 7. There are no rules of quite universal acceptance by which states are guided in claiming or rejecting persons as their members. The leading feature in the disagreement which exists on this subject has been the contest between the feudal and Eoman principles, of which the former, subordinating all other relations to those of the soil, made alle- giance to depend on the place of birth, while the latter applied to citi- zenship the general rule that children follow the condition of their parents. The feudal principle has progressively given. away, but retains so much influence in England and some other countries, while in all it has so much the character of a groundwork into which the modifications arising from the other principle have been introduced, that the histo- rical method is best suited for describing the doctrines now current in different states. 1. History of the Doctrine of Allegiance in England and France. 8. The medieval doctrine of allegiance had two sources, corresponding to the two sections of the population over which the Frankish and other barbarian ' kings reigned. *The first of these was the military r-^f>-. oath of fidelity to the Roman emperor, which was ultimately im- L J posed on the provincials as well as the citizens, and which the' Prankish kings, conceiving themselves to inherit the rights of the empire over its subjects, occasionally exacted from the cities, since it was in them that the bulk of their Roman subjects dwelt.' The second, and far more important source, as it concerned the king's relation to his own Teutonic people, existed in the habit common to all the German tribes, by which a chief was surrounded by warriors who had voluntarily attached themselves to him, who were his men, and who were under- stood to owe him fidelity and allegiance in return for the benefits which he conferred upon them. These benefits at first might be limited to a bench at his table, and the gift of horses and arms, but, when the patrons acquired territorial wealth through the conquest* of the empire, the name came to be appropriated to the gifts of land, which were 20 WESTLAKE ON PRIVATE INTERNATIONAL LAW. known as benefices, and afterwards as fiefs. Then, as it became continu- ally more difficult for an independent allodial proprietor to maintain himself in the midst of the general violence and confusion, the habit of thus commending one's-self to a lord extended until all society had been brought under the feudal form. In this simple form, however, the chain of commendation was extended from the highest to the lowest through the intermediate links of the mesne lords, and a direct personal relation was far from existing between the kings and the whole pro- prietary, still less between them and the whole population. But the kings naturally sought to avail themselves of the tie which appeared to be most efficacious in the society around them, and sometimes encou- raged, sometimes commanded, their subjects generally to incur towards them immediately the personal obligations of allegiance, ^t whatever T-i^'j-i period, and with whatever variation of details *this took place in L J any one Teutonic state, the character of the innovation was iden- tical in them all, and I shall therefore cite the clearest description of it, that given by Guizot for the case of Charlemagne ; premising that whether from the personal weakness of his successors, or from the difB- culties which surrounded them, his scheme had in France no permanent eifect. 9. " Ainsi se formait pen h, peu cette hierarchic des propri^tes et des personnes qui devait devenir la fe6dalit6 ; ainsi, par la division pro- gressive des benefices s'etendait de jour en jour cette sSrie de vassaux et d'arrifere-vassaux, lies les uns aux autres par des obligations sem- blables, et toujours comprises dans cette condition de la fidflite qui toit le titre meme de leur possession. Bien que, dans leur enchaine- ment graduel et d'interm6diaire en interm^diaire, ces obligations ratta- chassent au tr6ne la plupart des benefices, et qu'ainsi le monarque, eut des droits, directs au indirects, a la fidflit6 du plus grand nombre des b&^ficiers, cependant, dans une soci^te violente et grossiere, une rela- tion si lointaine 6tait n^cessairement bien peu puissante, etl'unite sociale ou monarchique qui en devait r&ulter ne pouvait etre r^elle. Les liens fondfis sur des rapports prochains et personnels ^taient seuls efficaces ; seuls ils correspondaient aux anciennes habitudes des Barbares; et de mSme que le compagnon ne connaissait gu^re autrefois que le chef de sa bande, de meme le vassal ne tenait vraiment qu';\ son propre seig- neur. Charlemagne s'efForga de rattacher plus immMiatement tous ses sujets a sa personne et h, son pouvoir II entreprit de tra- verser la hierarchic f^odale qui se constituait, d'entrer en communica- tion directe avec tous les hommes libres, et de faire prodominer la relation du roi au citoyen sur celle du seigneur au vassal. La fidelito, qui jusque-lJi n'avait ii& qu'une obligation personnelle contractee envere r *o-| le chef auquel chaque homme libre *s'etait attache et dont il avait L -I regu quelque avantage, devint, par les ordres de Charlemagne, une obligation publique inipos^e -a tout homme libre envers le roi, qu'il en tint, ou non, quelque benefice m(5diat ou imm^diat, et r^clamde au nom de la seule royaut^ Un tel systfeme affi'anchissait ^vi- demment la royaut^ de toutes les relations feodales, fondait son empire hors de la hierarchic des personnes ou des terres, et la rendait partout NATIONAL CHARACTER. 21 pr&ente, partout puissante, h, titre de pouvoir public et par son propre droit."(a) 10. Such was the system of allegiance in general : I must now ask attention to its history in England in particular. It is stated by Brom- ton/6) that King Edmund the elder ordered all men to swear fidelity to him, and though nothing of the sort appears in the extant collection of his laws, it is not in itself improbable, since the Anglo-Saxon monarchs from Egbert imitated the Carlovingian system in many particulars. But it is certain that no such oa|h was in fact generally enforced by the Anglo-Saxon kings, and the first real establishment in England of the doctrine of a personal fidelity due to the king as such must be referred to the Conqueror. 1. In the beginning of his reign he com- pelled the principal inhabitants of Exeter to take an oath to himself, which they, though not refusing him as king, had declined as not due from them.(c) 2. In the document known as the car/a de quibusdam staiuiis, referred by Guizot to the year 1071, he imposed on all free- holders the oath of fidelity to himself.((i) This oath was actually sworn in 1086, by "all ^landholders of any account throughout Eng- p^^q-, land. "(e) 3. Charlemagne had left open the comparative force L J of the obligations which were to be incurred to him and to the yassal's lord ; Edmund is said by Bromton to have placed them on a par, but the oath imposed by William was one of fidelity to him « against all other men."(/) The example was followed by Frederic Barbarossa, who at the diet of Koncaglia, in 1158, enacted that in every oath of fidelity from a vassal to his lord the emperor should be excepted by name; and a similar reservation in favor of the king appears from Glan- ville to have already at the same period become the common law of England.((/) 11. By the total result of these innovations, for every piece of ground in the kingdom, whether within or without a borough, there was some one compellable to incur the personal obligations of fealty towards the king, nor does there appear any trace of fealty due to the king on other grounds than those connected with the soil. There was, therefore, a natural tendency to regard allegiance as something geographical, and the term itself came to be used in a geographical sense, persons being expressed as born within or without the king's allegiance when little more was meant than that they were born within or without the realm :(A.) (a) Guizot, Ess. sur I'Hist. de France, 8feme ^dit. p. 105-107. (6) Cap. 859, quoted in Allen's Inquiry into the Rise and Growth of the Royal Prerogative in England, p. 65, edit, of 1849. (c) Ordericus Vitalis, 1. 4, apud Allen, p. 10. (d) Leg. Will. Conq. iii. 2, in Anc. Laws and Inst, of England, vol. i., p. 490 ; Guizot, Essais sur I'Hist. de France, p. 2T5, note. Freeholders is, for the Con- queror's reign, the most correct translation of liberi homines: villani, bordarii, ^c, are excluded as well as servi. See Ellis's Int. to Domesday Book, vol. i., p. 63, et seq. («) Saxon Chronicle, sub anu. (/) Saxon Chron. ubi supra. (^) L. 9, c. 1. (h) It is no real exception to such a geographical sense, that the children of ambassadors born abroad are said to have been by the old common law born within the allegiance ; for an ambassador's house is reputed part of his sovereign's realm, and the 25 Edw. 3, st. 2, presently to be quoted, shows that the same exception was not made in favor of children whose parents served the Icing abroad in any other 22 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. P ^, „ -. and men were thus predisposed to resolve *by the same test those L J questions which still had to be asked, concerning the persons who under the system, so far as we have now traced its development, had not yet been called upon to place themselves in a direct relation with- the king. And these questions were chiefly two : who, if taken in arms against the king, must be treated as an enemy and not as a traitor ? and in whom is there such an incapacity for the personal obligation of allegiance towards the King of England, that he cannot acquire here land which would entail that obligatiop ? Under the presumption that every one must be personally bound to some one sovereign, it was necessary that these questions should receive coincident answers, which again, in accordance with the tendency noticed, were made to depend on the acci- dent of birth within or without the so-called "allegiance." 12. "With regard to the former branch of this simple rule, that which would impose the duty of allegiance on all those born inter quatuor maria, we cannot believe that it was ever so strictly carried out, as that if a son was born in England to a foreign merchant, such son, on being afterwards taken in arms — a case, one would imagine, of no infrequent occurrence — should have been hung, drawn and quartered as a traitor. But it is not within our province to inquire what mitigations of the doc- trine prevailed in criminal practice : to this day, not only are all per- sons born within the United Kingdom ipso facto entitled to all the civil privileges conferred by the British character, but our law holds that they cannot divest themselves of that character by any act of theirs. T;') r*11 1 *^^- It remains to trace the relaxation of the severe rule L J which excluded from the same privileges the children of Eng- lishmen born abroad. A perfectly logical doubt had arisen whether the king's child born abroad could inherit the crown, for if allegiance to a foreign prince were entailed by mere birth in his dominions, then surely one who owed such allegiance could not be a fit sovereign for Eng- land. This was met by the illogical statute 25 Edw. 3, st. 2, which, after removing by a declaration the doubt as to the heir of the crown, enacted, that "all children inheritors which from thenceforth should be born without the allegiance of the king, whose fathers and mothers at the time of their birth should be in the faith and allegiance of the King of England, should have and enjoy the same benefit and advantage, to have and bear inheritance within the same allegiance, as other inheri- tors ; so always that the mothers of such children should pass the sea by the license and will of their husbands."(/i;) Lord Kenyon thought that capacity. The children, however, of the king's enemies, born within any portion of the realm of which their parents might be in hostile occupation, were not re- puted born within the allegiance. See Calvin's case, 7 Coke, 18, a. (i) Mntas or Angus Macdonald was born in the United Kingdom, but had lived in France from his early infancy, and came over in the affair of 1745 with a French commission. He was taken, and found guilty of treason, but pardoned on condition of leaving the kingdom, and continuing abroad during his life. Lee, C. J., informed the jury that " the only fact they had to try was whether he was a native of Great Britain ? If so, he must be found guilty." The principle obviously extends to the son of foreign parents born within the realm. 18 State Trials, 857. {k) Sect. 5. NATIONAL CHARACTER. 23 tliis statute was meant to confer the complete English nationality, and not merely the right of inheritance •.(T) it seems to me, upon the old au- thorities, not to have been so interpreted ; but the point is now of no importance. With regard to the children upon whom the rights, such as they were, were conferred, the necessity of the mother's original alle- giance was very properly abolished by a dictum in Bacon's case, where it was said that the wife, though foreign by birth, "is sub potestate viri, and g'ttastunder the allegiance of our kiag."(m) Still the *pri- i-:|--|9 -, vilege was limited to the first generation, but then came the L ^ J clause, 7 Anne, c. 5, s. 3, which enacted, that the children of all natural- born subjects, born out of the queen's allegiance, should be taken to be natural-born subjects to all intents, constructions, and purposes. These words, fairly construed, would have accomplished every reasonable purpose. The children of a British mother and alien father would have been ex- cluded by the reason of Bacon's case, as by the marriage she would lose the character of a natural-born subject; and the child who came under this clause, being naturalized for all purposes, would be so for the purpose amongst others, of transmitting the British character to his issue, and so on for ever, until in some manner that character had been forfeited by a per- son who would otherwise form a link of the chain. But by a narrow spirit of construction, something less than justice has been done to the expres- sions of this statute. It is not indeed to be regretted, considering the doubts which might have been raised, that the st. 4 Geo. 2, c. 21, s. 1, should have clearly established that there is no transmissive power in the mother, by declaring that the children, born out of the allegiance, oi fathers who at the time of the birth of such children are natural-born subjects, are by 7 Anne, natural-born subjects to all intents, construc- tions, and purposes. (n) But the st. 13 Geo. 3, c. 21, s. 1, after a recital that naturalization had not been extended beyond the children of those born within the realm, extends it to the children of persons falling within the previous statute. 14. Thus stands the matter on the statute-book. The 13 *Geo. r;f:iq-, 3, still professedly naturalizes those within it " to all intents, L J constructions and purposes:'' but as its recital is a parliamentary con- struction of the same words in 7 Anne and 4 Geo. 2, it is a question whether we are not bound by it to consider as excluded "the intent, construction and purpose" of standing as a natural-born subject in a second application of the game statute 13 Geo. 3, to their issue. If this be so, an(I the wives of successive English gentlemen, grandfather, father and son, should happen to present their husbands with heirs at Paris or Naples, no very improbable contingency, the third such foreign-born heir {I) i T. R. 308, in Doe v. Jones. (m) Cro. Ch. 602. This was correct in principle, but if the statute had meant it, there would have been no need to specify the allegiance of both parents. In- deed, the common law exception in favor of ambassadors' children is said to have required that their mothers should also be English. Coke, ubi supra. (n) The doubt was raised, even in spite of this statute, as to the foreign-born son of an alien father and English mother, but quashed without difficulty ; Doe v. Jones, 4 T. R. 300. The incapacity to inherit, which provoked to the attempt, has since been removed by st. 7 & 8 Vict. c. 66, s. 3. 24 WESTLAKE ON PRIVATE INTEKNATIONAL LAW. will find himself one morning not a British subject. He will probably not think proper to take up the foreign nationality, which in many coun- tries he might claim from the accident of his birth, and hence will require the interference of parliament to save him from the consequences of bearing caput lupinum. -It is said that of the most eminent lawyers in the country, five gave an opinion for, and five against, the right of one whose grandfather had been born out of the British dominions to inherit land.(o\ In my own opinion a court ought, in such a case, to admit the claimant in accordance with the plain words of the statutes, disregarding their restriction by an implied statutory construction : and in doing so, it would be countenanced by a decision of the Irish House of Lords. Godart de Ginckell, created Earl of Athlone in 1692, spent the latter part of his life on the continent, and it does not appear that any of his posterity had ever set foot on British soil; but in 1795, one who was the fifth in descent from him was admitted to sit in the Irish parliament r*i-n ^^ seventh earl.(p) The statutes must, therefore, *have been L J construed as not limiting to the first generation the power of transmitting nationality, but the decision may be open to remark on another ground. For though our parliament can confer the British character on one born abroad who may be willing to accept it, yet it can neither force the inconvenience of a double nationality on one who was never within its jurisdiction, and who chooses the citizenship of his native land, nor can it be presumed to have meant in any case to bestow the privileges without demanding the duties of a British subject. Now it is hardly possible but that some ancestor of the claiming earl must have so acted as to establish his Dutch character, and, if so, he must have lost his power of transmitting a British nationality at the same time with that nationality itself. I shall return to this point in Art. 24. 15. I have already mentioned that the great idea of Charlemagne, by which a direct personal tie should connect every subject with the mo- narch, took no permanent effect in France : and so little were the inferior landholders penetrated with the conception of an allegiance to their suzerain overriding that to their mesne lord, that even the establishments of St. Lewis are silent on the part which the vassal should take in a con- test between his successive superiors. It was indeed in France that the feudal system arose out of the practice of personal commendation, but if France was the most feudal country of feudal times, it wa^ because that system there retained the least of its origin, and was most emphatically a graduated subordination of lands, denuded of all personal ties except those which resulted from immediate juxtaposition in the scale of owner- ship. When thus the bond was so feeble between the king and the ultimate occupant of the soil, we do not wonder at finding that the duty of allegiance to the king was not held to arise necessarily and ipso facto r^iK-i i^om birth within the kingdom. But other causes also con- L J curred in *this result. For early in the middle ages the re- (o) Report of Committee of House of Commons on Laws relatino- to Aliens (1843,) sub fin. {p) Report, &c., ubi supra ; and Lodge's Peerage of Ireland, by Archdall, vol. ii., p. 15T. ' -^ NATIONAL CHAEACTBR. 25 vived study of the Roman law had taught men upon the continent to regard citizenship as a benefit to be conferred and not as a burden to be im- posed, and the pride of a high-spi»ited people led them to look upon their nationality as a privilege, and on allegiance to their king as an honor. Yet the feudal principle, on which the relations of persons were governed by those of land, was so influential that birth within the king- dom was held to confer on the foreigner's son an inchoate right to the French character, though one which might be disclaimed. The dis- claimer, if not express, was to be inferred from the language and conduct of the person, but if neither from word nor deed could an intimation of his intention be derived, he was deemed to have tacitly accepted the allegiance of the King of France. Correspondingly, and pursuant to the Eoman principle that the freeman's child follows his father's condi- tion, the issue of French fathers born abroad were accepted as French if they adopted that character, but not claimed as such if they preferred the allegiance of their native 8011.(5) ^ 2. Present State of the Doctrine of National Character. 16. The option which, as we have seen, the French law has from an early period allowed to the child born in a country to which its father was alien, arose from the conflicting application to him of two principles, the feudal one of territorial allegiance, and the ancient one of an in- herited status, under either of which he was allowed to range himself. Indeed it would have been no way consonant to the mediaeval spirit, to hold that entire liberty of *choosing a nationality which was |-^.„-, taught in the last century by Vattel and other publicists. What L J the latter said on this matter, we need not here cite; but, subject to the choice they reserved to the adult, any remaining influence of the feudal principle was although rejected by them in determining the jjyima /aci'e nationality of the infant. Les enfants, says Vattel suivenl naturellement la condition de leurs pires, et I'onprhume de droit que chaque citoyen, en entrant dans la sociStS, rSserve d ses enfants le droit d'en ttre memlres Le lieu de la naissance ne fait rien A cela, et ne peut fournir de lui-mSme aucune raison d'oter d un enfant ce que la nature lui donne ; je dis de lui-mSme, car la loi civile ou politique peut en or- donner autrement pour des vues particuliires.M The supposed con- tract between the members of the state in favor of their children was derived from the philosophy current in Vattel's age. To us it will be more satisfactory to base the rule on the probability that the child will be educated in the mental and moral habits of his father's country, so that natural fitness points him out as a member of that rather than of any other state, as well as on the hardship of separating the destiny of the child from that of his family by giving him any other nationality than his father's. This understood, and repudiating also the free choice (q) Much information on the old French law of allegiance will be found in 2 Knapp, 315, et seq. (r) Droit des Gens, 1. 1, § 212, 215. 26 WESTLAKE ON PRIVATE INTERNATIONAL LAW. of natiouality, except in tlie case when tlie ancestral character competes with that sentiment which is always more or less inspired by one's native land, the following rule, based on that of Vattel, may be recommended as expressing the idea of modern publicists : Legitimate children, ■wher- ever horn, are regularly members of that state of which their fathers are memlers at the time of their hirth, but may choose, if they prefer it, the nationality of their place of birth. |- ^-j „ -, 17. This is the effect of the old French rule, except that *the L ' presumption was there in favor of the place of birth ; how far it is that of the English rule, as altered by statute, has been already dis- cussed. It is also the rule of the Code Napoleon, but with three excep- tions. (s) One, that in favor of a French origin the father's nationality at the time of conception is preferred to that at the birth ; that is, by the principle infans conceptus pro nato habetur quoties de ejus commodis agitur, every advantage which (Jie child could derive from being born to a French father will also be secured to him, if the father lost the French character within the 180 days preceding the birth, which in arti- cle 812 are fixed as the shortest period of gestation. Another, that the privilege of claiming the French character is extended to the child born out of France to a father who at any previous time was French. And the third, that whenever the French character is claimed^;) by one who does not combine the two circumstances of birth in the territory, and to a father who was French at least within the 1 80 days, the claim must be supported by a formal declaration, and an actual domicile in France : though, when so supported, it will relate to the birth for all those whose situation includes either of the two circumstances just named, and is only treated as a novel acquisition on the part of those born abroad from fathers who had lost the French character prior to the 180 days. But inasmuch as this jurisprudence permitted the establishment in France of foreign families who chose to remain foreign from generation to generation, in order to escape the conscription, the law of 12th Feb. 1851, provided that the child born in France, to a foreign father himself also born in r*lS T France, should be treated as French, *unless he repudiated that L J character within a year from attaining his majority.(!(') 18. The national character of illegitimate children is the subject of much difference. Since the condition of promiscuous issue was in the Ro- man law determined by the maxim partus ventrem sequitur, it might have been expected that the codes and authorities, which in the ordinary case support the Roman doctrine of a status inherited from the father, would here, to the same extent and with the same qualifications, adopt the na- tionality of the mother. And accordingly this is done by Heffter.(.r) But the 9th and 10th articles of the Code Napoleon, by omittino- to (s) See Code Civil, Art. 9, 10, with the decisions quoted in Rogron's notes. {t) As to the time for making this claim, see Code Civil, Art. 9, and Law of 22nd March, 1849. (u) See the report on this law in Dalloz, 1851. These families amounted to 'a tenth part of some frontier villages, and concealed their foreign character when any of the rights of citizenship were to be enjoyed. The lesson shows that some such exception is necessary to the rule above suggested. (x) Europiiische Volkerrecht, 3rd edit., p. 109. NATIONAL CHAEACTBR. 27 specify birth in matrimony, empower the French father to transmit bis nationality to his illegitimate, precisely as to bis legitimate children, wherever horn. This, however, does not proceed from ignoring alto- gether the distinction between legitimacy and illegitimacy in this mat- ter. It is rather an instance of the leaning, noticeable in the French laws, to every consideration which may extend their own nationality: and the maxim partus ventrem seqiiitur is allowed its usual course when that end would not be aifected by departing from it, so that the illegiti- mate child of a French mother by a foreign father is prima facie French, though, if the father acknowledge him, he may accept the paternal na- tionality by preference.(^) On the other hand, several treaties between Prussia and small German states absolutely assign the father's nation- ality to the issue whom he adopts, and some French writers have argued for the same rule.^z) In the United Kingdom, as it is only by r ^-iq -i *statute that any born without the realm have been admitted to L J the benefit of allegiance, the illegitimate children of British mothers born abroad must be excluded, for .no statute exists which can be con- strued in their favor. The illegitimate children of foreign mothers born here are of course British by their place of birth. 19. Foundlings of course belong everywhere to the country where they are found. 20. Change of the Nationality of Origin. — This involves two points, the acquisition of a new national character, and the loss of the old. The former, which is called naturalization, can only be accomplished by the supreme authority in the state which receives the alien into its member- ship. Nor, although the sanction of that authority has sometimes been given by general statutes passed in favor of all who should satisfy cer- tain conditions, is it usual to give it otherwise than by an express inter- vention of the government in the case of each person. Again, as well in such general statutes as in such particular grants, it is usual to reserve certain privileges of natural-born, which it is not thought fit to extend to naturalized subjects; and, from the number and nature of these re- servations, a question often arises how far the grant really confers the national character of the adopting state. The true answer to this ques- tion, however, does not in any degree depend on the reservations, since, whatever their extent, they will be, if naturalization is intended, analo- gous only to the disqualifications which in most countries are imposed for some purpose or other on some portion of the natural-born subjects. The matter really turns on whether the relation of sovereign and subject is meant to be established; and so, whatever the terms used, and how- ever various the privileges conferred, all the modes and degrees may be classed under the two heads of naturalization and denization, in the for- mer of which the adopting state permanently *aggregates the j- ^„„ -. alien to its body, intending thereby to acquire as firm a grasp on L J his allegiance as on that of a natural-born subject, and in the latter only the permission is contained to establish a domicile in the territory, to- gether with the grant of more or less limited rights. Thus the status {y) See Bogron's notes to Cod. Civ. art. 10. (z) Fa3lix, Droit Internatioiml Priv^, 2feme edit. p. 37. 28 WESTLAKE ON PEIVATB INT B BN ATION AL LAW. of a denizen corresponds to what in some countries is called the jus in- digenatus, and in Prance the enjoyment of the droits civils without the qualiU de Frangais ; and its original purport was no doubt to favor commerce, by giving to foreign merchants the protection and conve- niences of natives during their residence, and so far as might be re- quired by its motive. Hence also its importance has diminished in mo- dern times in proportion as, by the progress of humanity, the status of foreigners, as such, has improved. But the original purport of deniza- tion has not everywhere been so strictly followed out as to exclude poli- tical rights, as in England, for instance, denizens can vote, in respect of their tenements, in the election of members of parliament :(a) which I notice to show the student how completely he must in fact, whatever may be said as to the idea, eschew the notion of testing state-member- Ship by the rights enjoyed. The only question is, to which government is permanent subjection promised? 21. Such a general statute as before alluded to was that of 7 Anne, c. 5, for the naturalization of foreign protestants, which for this purpose remained in force only three years. At present naturalization is conferred in the United Kingdom by a certificate of the Home Secretary, under St. 7 & 8 Vict. c. 66, s. 8, and the oath of allegiance taken thereupon ; r *91 1 *^''^^ siiah. certificate is discretional, must except the capacity of L J becoming a member of the privy council or of either house of parliament, and may except any other rights and capacities. Before this act, an alien could only be individually naturalized by parliament. 22. That any one should be a member of two nations at once is inad- missible in principle, since a war between them would involve him in conflicting duties; and even in peace the notion would be incompatible with that absolute authority over subjects which, so far as any regular human interference is concerned, is contained in the idea of sove- reignty, whether vested in a monarch or in the body of a republic. Thus naturalization always intends the transfer of subjection. But the same person may easily be claimed by two nations, when the one has naturalized him and the other does not relinquish him, and indeed some of the states which most readily adopt foreigners are among those which claim most strongly the perpetual allegiance of their own sub- jects. The idea of allegiance as a personal tie sanctioned, or liable to be sanctioned, by an oath, necessarily involved its perpetuity, at least until dissolved by the mutual consent of the sovereign and subject; and this, which is expressed in the maxim nemo potest exuere patriam, is still both the British and American(6) doctrine. But the opposite idea (ffl) 2 Peckwell's Election Cases, 117; and Resolution of House of Commons, 22nd Dec. 1698, 12 Com. Journ. 367. Also in some of the United States of Ame- rica, the suffrage is conferred on persons who by the laws of the Union are still aliens, notwithstanding that, by the constitution, naturalization is reserved to the Union : Wheaton's Int. Law, 6th ed., p. 628. See below, Art. 26. (5) 2 Kent's Comm. 49. Secretary Webster's Argument in Thrasher's case, (Wheaton, p. 123, et seq.,) looks like a renunciation of allegiance, but Thrasher, as a resident, was bound not to conspire against the local government, besides that the attempt exuere patriam might forfeit his claim to protection against the sovereign of his choice. NATIONAL CHARACTER. 29 of a national character freely chosen by the person is expressed by the 17th article of the Code Napoleon, which declares the French character to be lost by naturalization in a foreign country, by accepting public employment from a foreign government without the sanction of the supreme authority in France, and by "every establishment made in a foreign country *sans esprit de retoiir," in which light, however, _ ^„„ _ it is expressly defined, no establishment for commercial purposes L J shall ever be regarded. Similar provisions exist in many continental states, and are carried farthest in Kussia, where the quality of a Rus- sian subject is lost by unauthorized residence abroad, by voluntary expatriation without the intention of return, and by disappearance ; the last being presumed of every person liable to the capitation-tax, who during ten years has not been, heard of at the place of his domicile. (c) Thus it must frequently happen that the Russian nationality is lost without acquiring any other. 23. If amigreement to sanction the change of nationality might have been expected in any case, that of a woman who marries a foreigner would have seemed the most likely. But there is none even there. The old English rule, which we have seen expressed by the dictum in Bacon's case, that the foreign wife is quasi under the allegiance, what- ever else it meant, gave her no rights while she remained abroad. (cZ) But by the st. 7 & 8 Vict. c. 66, s. 16, England has, in common with most continental countries, adopted the principle of the 12th article of the Code Napoleon, so that the foreign wife now acquires the British nationality of her husband ;(e) without, however, adopting the correla- tive principle of the 19th article, which turns over the French wife to the foreign nationality of her husband. Many cases may therefore be put in which the wife will be claimed at once by her husband's country and by that of her origin. 24. Any general rule for the change of nationality, could such be established, would obviate the difficulty foreshadowed in my remarks on the Athlone Peerage case, *and which at present stands thus: — r*2^ 1 A., an Englishman, emigrates to France or America, suppose, is L -J naturalized there, and his posterity continue to reside there. They will of course be French or American, but, unless the British government consents to their ancestor's expatriation, the same posterity must be treated as British at least to the second generation, and perhaps for- ever. The difficulty, however, may be got over in more ways than one. The most consistent, perhaps, with the principles of jurisprudence would be to hold that the acceptance of a foreign nationality at least incapaci- tates for transmitting the British to the issue, even if it leaves the ac- ceptor entangled for himself with the conflicting obligations of a double allegiance. And this may be argued with great force from the excep- tion, in St. 4 Geo. 2, c. 21, s. 2, of children whose fathers at the time (c) Revue EtrangJsre et Fran9aise, t. 3, p. 257. (d) Countess de Conway's case, 2 Knapp, 364 ; Case of Count de "Wall's Repre- sentatives, 6 Mo. P. C. 216. (e) And without the option of refusing iti Maria Manning's case, 2 C. & K. 887, 19 L. J. (N. S.) M. C. 1. 30 W.ESTLAKE ON PEIVATE INTERNATIONAL LAW. of tlieir birth would have been liable to the penalties of high treason or felony in case of their returning into the realm without the king's license, combined with the st. 3 James 1, c. 4, ss. 22, 23, whereby pro- mising obedience to any other prince, state or potentate was made high treason. Another method is to rest upon the remedial scope of the naturalization acts — and particularly on st. 13 Geo. 3, c. 21, s. 3, which appears to require that persons to be naturalized by that act shall reside within the realm, and take the oaths and make the declaration required by the st. 1 Geo. 1, c. 13(/) — so as to hold that to the foreigner within their provisions there is merely an opportunity afforded of ranging him- self under British allegiance by abandoning his native citizenship. The latter method would as well as the first, but not until the second generation, result in preventing the transmission of the privilege; for, r*9/tn ^y ^°^ ^' Acklam,(^') "the two *eharacters of subject and sub- L -• ject by birth must unite in the father," so that, if the character of subject is not imposed on the father against his will, the option will not be offered to his son. But the first method has against it the deci- sion of Sir James Wigram, in Fitch v. Weber,(A) where it was ably pressed by counsel; and the second is opposed by two rfi'c^a, neither however necessary to the case in which it was thrown out. One is that of the Lords of the Council in Drummond's case,(i) who asserted that the naturalization acts do really impose a double subjection, and com- mended to the mercy of the crown any foreign issue within them who might be taken in war : the other is that of Sir James Wigram, at the end of Fitch v. Weber,(A) where he said, that the qualification required by the 3d section of st. 13 Geo. 3, c. 21, did not apply to those whom he held to be ipso facto naturalized by the same act, — a dictum not very easy to reconcile with the words of the section itself. 25. We have next to consider the British empire as a collection of separate jurisdictions, governed by different laws, but united under one allegiance. Such an empire admits a variety of domiciles, but one na- tional character, and the conditions of that one character must be derived from the jurisprudence of the dominant territory : accordingly it has been twice laid down by the Privy Council that the British cha- racter of an inhabitant of a colony must be decided by the law of Eng- land, though the rights to which, as British or alien, he will be entitled, depend on that of the colony.(Z) Of course, in construing the law of England on national character, it is not now the realm of that name, r*25n ^^^ ^^^^ universal dominions of its sovereign, *to which the L -1 question of birth within or without the allegiance must be re- ferred. Sometimes, to promote the settlement of colonies, the parent state confers the benefits of naturalization on aliens who emigrate to them : but this is no exception to the rule, for it is still by the law of the supreme government that the status of such emigrants is determined. Has, however, a new view been introduced by the st. 10 & 11 Yict. (/) Receiving tlie sacrament is now rendered unnecessary by st. 6 Geo 4 c 67 (g) 2 Ba. & Cr. 119, 195. (A) 6 Ha. 51. ' ' • • (i) 2 Knapp, 295, 311-314. (i) 6 Hare, 65. (I) Donegani t. Donegani, 3 Knapp, 63 ; Re Adam, 1 Mo. P. C. 460. NATIONAL CHARACTER. 31 c. 83, which declares that the st. 7 & 8 Vict. c. 66, does not extend to the colonies, and validates all past and future colonial statutes for im- parting naturalization within the respective colonies ? The effect of this will probably be that of a naturalization unrestricted as to geogra- phical limits — for it is difficult to understand a restricted one : there can be but one answer to the question, what government must protect him and answer for his acts abroad — but accompanied by limited in- ternal disqualiiSications, as with regard to holding land situate in any other part of the empire than that in which he is naturalized. But I would not be understood to speak positively on the meaning of this act. 26. United States of America. — The American use of the term citizen is indistinct. A citizenship of a particular State is recognized, as well as one of the Union; E^nd the. term is sometimes used to express the en- joyment of full internal political rights, so as to be denied to persons of color, who even in many of the free States are not suffered to hold office or to vote for public officers. But it is only with the citizenship of the United States that we have in this place to do, and with that in the largest sense : for we are here considering the distribution of men be- tween nations which have a recognized standing by each other's side, and all public relations with foreign countries are reserved to the Union by its constitution ; wherefore a slave or a person of color, whatever his rights at home, is internationally a member of the body called the United States, *since that is the government under which he stands in ^ ^^„ -. relation to foreigners. L J Now, as the British law of allegiance and alienage depends entirely on principles which existed, or on statutes which were passed, before the independence of America, it might be thought to apply there also, except so far as subsequently modified by the legislation of that country. The allegiance due to the crown from Americans was transferred to the Union by the events of 1766-178B, and it was certainly one possible construc- tion of the situation that, in analogy to the continued validity of the ex- isting private law, the rules which previously governed the propagation of that allegiance to future generations remained applicable to the propa- gation of the subjection due to the Union. But, for some reason which I do not find explained, it seems to have been considered that this was the ease with such only of those rules as were drawn from our common and not from our statute law, the defects in which have since been sup- plied by a series of acts of Congress. ]?irst, then, every one is held to be a subject of the Union who is born within its jurisdiction. (m) And, secondly, persons born out of the same territory who are citizens, are the children of American ambassadors, in pursuance of the English common law doctrine ; and, under the acts of Congress of 1802, 1804, and 1855, persons whose fathers were citizens at the time of their birth, but so that " the rights of citizenship shall not descend to persons whose fathers never resided in the United States;" the children of naturalized fathers, who are minors at the time of their fathers' naturalization, if dwelling in the United States ; and such wives of citizens as, being free whites, are (m) 2 Kent's Comm. 39 ; Bouvier's Institutes of Amer. Law, 2nd ed., vol. i., p. 64. 32 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. P ^„_ -. not incapable of naturalization : *but the citizenship of the L -I widow and children is secured, if the father die after taking the preliminary steps to naturalization. (m) 27. Distribution of existing Populations in Cases of Cession. — When Great Britain cedes a country, or acknowledges the independence of a colony, the persons whose allegiance is discharged are strictly those who are domiciled within the ceded limits, but any who may choose to trans- fer their domicile for that purpose will be allowed to retain their British character.^o, p, g) This rule places the nationality of the infants of the territory in the power of their fathers, as it should do.(j) Also, since all the rules as to domicile apply, a mere temporary continuance in the territory, or return to it, will not conclusively decide against the choice of the British allegiance, (p, q) But the choice, from whatever posterior circumstances inferred, must be that which was made at the time of the treaty, no option to change it being afterwards allowed,(^) unless, as is often done, a term in which to make the option be stipulated in the treaty itself. This is strictly in accordance with the common practice among states. The inhabitants of the ceded territory are said to be collectively naturalized in their new country, and have there all the rights of natural- born subjects, by the mere force of the cession of the soil, without the necessity of anything being expressed concerning the people. (r) [*28] *CHAPTEE III. DOMICIIiE. 28. The distinctions of nationality which we have considered concern the relation between sovereign and subject, the former of which charac- ters may be filled by the body corporate of a republic as well as by a monarch. But a state exists also in relation to a certain territory, within which one duty of sovereignty is to establish a legal order, and for that purpose to exercise jurisdiction. It is true that this double relation to persons and to the soil is not essential to the existence of a State, since nomadic tribes are mere aggregates of persons having no fixed residence, or property in land, nations without territories : yet they have govern- ments and laws, and make war and peace. Feudalism on the contrary, confounding the conceptions of government and property, always tended (n) Kent, ubi supra, pp. 51-53; Bouvier, ubi supra, p. 65 : Wheaton's Int. Law 6th edit., p, 626. r > , , (o) Doe T. Acklam, 2 Ba. & Cr. 7V9. (p) Doe T. Mulcaster, 5 Ba. & Cr. 771; Doe v. Arkwright, 5 C. & P. 575. (q) Jephsou v. Riera, 3 Knapp, 130. In Re Bruce, 2 C. & J. 436, 2 Tyr. 475 the American nationality might therefore have been decided without going into Brace's own acts. But they were rightly gone into, because his domicile and not his nationality was the true question : Commissioners, &c., v. Devereux 13 Sim 14; Thomson v. Advocate-General, 13 Sim. 153, 12 CI. & F 1 ' (r) Wheaton, pp. 627, 631, 632. DOMICILE. Sa to know no permanent relations but those which were derived from the tenure of the soil. But for the full development of man the state must indispensably be grounded in both personal and territorial arrangements. He needs to be impelled and constrained by forces both physical and moral, both immediate and slow in their operation. The protection of his property and person, the maintenance of that general security which is necessary to the continuous efforts and large combinations whether of mental or of industrial activity, demand a force which must be territo- rial, because it must be always ready and on the spot. And political *society, which is the true sphere of human existence, depends p ^„q -. on ideas, the possession of which is not an accident of place. L J Neither the traveller, nor even the merchant who resides abroad, neces- sarily acquires foreign habits of mind, or loses those which birth and education have instilled into him; and the tendency of jurisprudence to assign him a citizenship independent of his casual abode or place of birth, does, as we have seen, but recognize the fact of his adaptation to one or other political society. Some of the most important aspects of the state may therefore be summed up in the aphorism, that it is related to the soil by the principle of what is now called order, and to persons by its political principle, on which order depends for its stability. And in this point of view, the industrial superiority of the modern to the ancient world may be compared with the greater prominence which, through the intermediate stage of feudalism, the territorial side of the idea of a state has. acquired, and of which we shall see examples in the modification of the rules of international law and jurisdiction. 29. The separate relations of the state to the soil and to persons have their meeting-point in the idea of domicile or home. For while the maintenance of order compels in a thousand cases the exercise of juris- diction over persons who are not generally the subjects of the sovereign before whose courts they are cited, in respect of the situation of pro- perty, or the place where sudden difficulties occur, there are many other purposes, having a peculiar connection with the person, for which juris- diction cannot properly be exercised but in a place with which the person has some permanent ties, and which yet cannot without an equal incon- venience be reserved for the tribunals of his own sovereign. I forbear at present to particularize, because we shall see that there has been, and still is, much difference as to the cases which should be referred *to either class. Farther, we shall have to consider whether this p ^o^v n relation of persons to their domicile does not extend itself be- L 1 yond jurisdiction, so as even to affect the choice of the laws which must in certain cases determine rights. In one case this is obviously so, that in which different laws prevail in different portions of the same nation, as happens with England and Scotland. For such differences of laws, both being those of the same sovereign, can have relation only to the courts in which they a. e administered; and the jurisdiction of those courts can only be founded on the situation of things, the place of occur- rence of events, and domicile, the last of which alone has a relation to persons ; so that between English and Scotch, the international effect of January, 1859. — 3 34 WESTLAKE ON PKIVATE INTERNATIONAL LAW. domicile must be the sum of those effects which between English and French would arise either from domicile or from national character. 30. Domicile then is the legal conception of residence, and the two words differ no otherwise than as in all sciences common words, on be- coming technical, are limited in meaning for the sake of precision. Such terms continue to hinge on the same central notion as in ordinary speech, but the circle of their application is more strictly defined : and if the language possesses another word originally synonymous, it is advantage- ous to use the one for the daily, the other for the scientific term ; the one for the general, the other for the particularized conception. Yet this must be so done as not to impair the sense of the fundamental same- ness, and thus, while we admit that residence is not domicile, unless ac- companied by the circumstances under which the law will recognize it, we must not forget that after all that which in domicile the law does recognize is simply residence. Now residence is a simple conception, which may serve to fix others, but which cannot be made plainer itself by any amount of verbiage ; wherefore no true definition of domicile is r*qi -1 possible, nor *would it be just to the Roman emperors to repre- L J sent them as having attempted one in that pathetic description of home so often and deservedly quoted. In eo loco singulos habere domicilium non anihigitur, ubi quis larem ac fortunarum suarum sum- man constituit, unde rursus non sit discessurus si nihil avocet, unde cum profectus est peregrinari -videtur, quo si rediit peregrinari jam, des- titit.{(i\ The modern attempts at defining domicile have not aimed at elucidating the meaning of the word, but at comprising in a formula all the conditions which the law demands for its recognition of the fact, and the most successful of them is, perhaps, that of Mr. Phillimore : — " a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. "(J) No such attempt, however, can be perfectly successful, because domicile is not inferred solely from the circumstances which surround the person at the moment, but, as we shall see, the law presumes a domicile of origin, and is occupied with the changes to which that, or any other subse- quently acquired, is subject. The nature of the case would admit of o.ur summing-up in a formula the conditions under which a change of domi- cile will be inferred, but the resulting proposition would be either too cumbrous or too defective for utility. 31. Domicile is important as well in municipal as in international law. Thus, the jurisdiction of local courts, the right to exercise the suffrage r *32 1 "'^ °''^^' political privileges, *the liability to serve offices or pay L -1 personal taxes, the right to relief under poor-laws, and many (a) Code, 10, 39, T. The idea of residence' is also well brought out by Lord Loughborough in Bempde v. Johnstone, 3 Ves. jun. 202 : "domicile is the place where a man would be, if there were no particular circumstance to determine his position at the moment to some other place." The whole of this judgment is worthy of study for its principles; see, in p. 201, the statement that, "domicile is more a question of fact than of law," — thus marking the broad distinction be- tween domicile and national character; the latter of which, as it implies the duty of allegiance, must always be a question of law. (b) Law of Dom., p. 13. DOMICILE. 35 other points, are made in different countries to turn more or less on resi- dence. Now the law of any country may prescribe certain conditions for the recognition of residence for those purposes, and even different ones for different purposes, but no such internal regulation can of its own nature, without an express enactment to that effect, bind the courts of such country as to the conditions under which they shall recognize resi- dence in international questions ; for wherever domicile is a necessary element in selecting the municipal law by which rights are to be deter- mined, the question would be begged if a particular municipal law were selected to determine domicile. In this subject, therefore, we are thrown back upon the simple idea of home or residence, and can only refer to general jurisprudence for the considerations which may give it precision : but municipal laws, which, for any purpose, give the preference to any particular indication of a permanent establishment, are often cited in argument by way of analogy. Their weight, when so cited, must be in exact proportion to the probability that the legislator intended residence alone, unmixed with any other qualification, as the ground of the right or duty conferred or imposed. If it be clear that residence alone, and simply as such, was in his purview, any provision as to the circumstances under which it shall be presumed, will be tantamount to an opinion on domicile of high, but, if the municipal law do not relate to jurisdiction, not necessarily of binding authority. If it do relate to jurisdiction, its effect may be to determine conclusively one of the elements of fact on which the decision of the international case depends. 32. But what if the law of any country, as that of Prance does, forbids foreigners to establish a domicile *without the sanction of the j- ^^o -, government ?(c) So far as such a law presents an impediment L J to the de facto establishment of a domicile, no difficulty arises : but if, as is also the case in France, foreigners are habitually permitted to be- come actually resident without obtaining the formal sanction, then such actual residence completely satisfies the idea of domicile as presented in this chapter, which is that of the home in fact, while how it may operate on the rights and obligations of the person, or on the effects of his acts, will have to be considered in connection with the principles of private international law hereafter to be discussed. 33. We have now to review such rules for ascertaining domicile as have a sufficient foundation in reason and authority. Kule I. — Every one receives at birth a domicile of origin, which ad- heres until another is acquired : and so, throughout life, each successive domicile can only be lost by the acquisition of a new one. With regard to the great mass of mankind in civilized countries, this rule is but the simple expression of a fact. The only persons for whom it has not this character are those who, as the gipsies, or as certain out- casts from society, wander with no attachment to place, past or present ; since even the soldier does not regard himself as having abandoned his home, because his duty obliges him to pass from land to land, and he therefore justly retains his original or his last domicile. For vagabonds, (c) Code Civil, Art. 13, on which see Merlin, Repertoire, Domicile, § XIII., and Bremer v. Freeman, 1 Deane, 192. 36 WESTLAKE ON PRIVATE INTERNATIONAL LAW. tte rule is indeed arbitrary, but universally received, and indispensable, since no one can be permitted to withdraw himself altogether from the obligations which depend on domicile. *34. But though clear in principle, a difficulty may arise in L -I applying the rule from a defect or equipoise of evidence. Thus, suppose a vagabond whose parentage and place of birth are totally un- known, so that no domicile of origin can be assigned him. Practically, such a person could hardly come under the law of domicile for any other purpose than that of jurisdiction, which would probably be exercised over him without scruple by any court within the territory of which he might be found. Or, take the case put by Lord Alvanley. " A man born no one knows where, or having had a domicile that he has com- pletely abandoned, might acquire in the same or different countries two domiciles at the same instant, and occupy both under exactly the same circumstances; both country houses, for instance, bought at the same time. It can hardly be said, that of which he took possession first is to prevail. "(rf) This is the case of plural domiciles for the same purpose, which must be distinguished from that, before mentioned as possibly occurring in municipal law, of the use of the word domicile to denote equally places of which each has a significance only for some special purpose. Its conditions are the non-existence, or complete abandonment of a previous home, the visible intention of an establishment somewhere, and a perfect balance of indications as to the place of that establishment. If it should arise in practice, we should necessarily, for some purposes, be driven to considerations independent of domicile, as Lord Alvanley, in the case of the man imagined by him, remarks, that for the distribu- tion of his property on his death, " ex necessitate the lex loci rei sitae must prevail :" though there may be other purposes, as that of founding jurisdiction over the person, for which either domicile might be available as such. i- ^„, -. *35. Rule II. — The domicile of origin is generally that v-hich L -1. the father has at the time of hirth. It is the mother's, if the child he posthumous, or illegitimate and unachnoidedged : if the parents are unhnown, it is the place of hirth, or that where the child is found. This rule is also universally received, and expresses the ordinary facts of an infant's home. When an illegitimate child is acknowledged and adopted, there appears to be no reason why in law, as in fact, its home should not be its father's. M. Foelix arrives at this conclusion by extend- ing to domicile the corresponding rule which we have seen holds between some countries as to national character, but the cases seem to be open to somewhat different considerations. 36. Rule III. — The domicile of the unmarried infant, hoy or girl, follows through all its changes that of the parent from ivhom it derived its domicile of origin. It also follows that of the mother or guardian after the father's death, and that of the guardian after the death of hoth parents. The latter part of this rule has been the subject of much controversy, (rf) 5 Ves. 791. DOMICILE. 37 as it has been thought that neither the mother nor the guardian ought to gain an advantage, in case of the child's death under age, by having removed its domicile to a country where the rules of succession are more advantageous to them. The impropriety of such advantage in any case will be discussed in speaking of the rules of succession. Supposing it established, which on the authorities it is very far from being, we should have to say that the succession of a fatherless minor is to be governed by the laws of that domicile which it had at its father's death; but as the proper abode of such a child is with its mother or guardian, we should only be falsifying the meaning of the word domicile did we deny the rule above stated. 37. Rule IV Men and unmarried women, being of age, ^ ^q„ ^ *and men who have married, though under age, change their L ' domiciles hy changing their residence animo et facto. (e) It results from the preceding rules that to every one, on his becoming sui juris, a domicile is attributed by law. We now come to the mode in which, starting thence, the subsequent changes of domicile are traced. It is clear that the married minor must be treated as sui juris in respect of domicile, since on his marriage he actually founds an establishment separate from the parental home. For the rest, residence is neither changed by an unexecuted intention, nor by an absence during which the sentiments of home have not been transferred. 38. Rule V. — The requisite animus manendi is an intention of resid- ing in the new locality. From the necessity of the intention to reside, it follows that the mere being in the new locality, for however long a continuance, will not of itself be suflScient. But whether a certain length of continuance may not constitute so strong a presumption of such intention that the law will not allow it to be rebutted, is a question occasionally discussed among the tokens from which the animus manendi is inferred. A Scotch domicile has been retained, by an absence of the animus manendi, during an eight years' habitation in London. (/) Next, as the intention must be to reside, it will not be satisfied by a sojourn adopted for a limited or temporary purpose, with the design of returning on its accomplishment. This is strikingly illustrated by the case of political refugees, whose hope of a restoration, however distant its probability, is considered to preserve to them their native domicile, (^r) It must not be understood, however, that *the acquisition of a ^ ,,„_ -. domicile will be prevented by the vague thought of return or L J removal,(A) for a true residence may aim at a terminable object, so that its duration be long and indefinite. An unhappy instance was once fur- nished by attendance on a chancery suit : a better is that of the mer- chant in a foreign port, or the officer in foreign service, who hopes to U) De Bonneval v. De Bonneval, 1 Curt. 864. (/) Munro v. Munro, T CI. & P. 842. (g) De Bonneval v. De Bonneval, 1 Curt. 856. But the refugee acquires a do- micile by remaining after his restoration has become possible, Collier v. Eivaz, 2 Curt. 858 ; or even during his exile, by forming an attachment to its locality, Heath t. Samson, 14 Beav. 441. (A) Stanley v. Bernes, 3 Hagg. 438, 465. 38 WESTLAKE ON PRIVATE INTERNATIONAL LAW. enjoy at home tlie fortune he will have made abroad. (i) Thus an Eng- lish domicile would not be lost by the intention of spending a year or ■two in Italy for the sake of health,(/i;) though if the necessity of a warm climate should cause one to remove his establishment to Naples, it would not be preserved by the indefinite hope of returning at some future period with a renovated constitution. 39. Rule VI. — The requisite factum is a complete transit to the new locality. As an animus manendi IB unintelligible unless it refer to some certain spot, the recent domicile must necessarily be retained, notwithstanding all appearance of its abandonment, as long as the person wanders from place to place, unresolved where to fix his abode ;(Z) a case which must be distinguished from that above noticed, in which a regular course of life has been again adopted, but there is an equipoise of evidence as to its principal centre. (m) The same reason however do not apply to one who dies on a journey or voyage, having caused every thing to be pre- pared for a permanent residence in the place of his destination, and r *oc n *the rule which makes him a domiciled inhabitant of the district L '^ J which he has quitted was probably founded on the convenience of avoiding inquiries into the motive of an unfinished journey. The rule itself, however, is not so certain as might be desired, owing no doubt to the infrequency of cases which might call for a decision on it. It is maintained by Pothier, who says that la volonti de transferer notre domicile dans un autre lieu doit itre justijiee. JElle n' est pas Equivoque lorsque c' est un hin^fice, une charge, ou un autre eniploi non amovible, qui nous y appelle. En ce cas, d6s que nous y sommes arrivfe nous y acquerons domicile et nous perdons l'ancien.{n\ It is also implied in what is said in Craigie v. Lewin, that, to consolidate the new domicile, when the transit is once complete, "length of time is not important : one day will be sufficient, provided the animus exists. (o) On the other hand, Sir John Leach, in stating the general rule, that " a domicile can- not be lost by mere abandonment," added the qualification, " unless the party die in itinere towards an intended domicile '■"(p) and Dr. Lush- ington said, in the case of the Baltica, " I have considered all the autho- rities on this subject, and I think the fair result is, with respect to a mercantile national character, that the party becomes clothed with a new character from the period when he first takes steps, animo removendi, to abandon his former domicile, and animo manendi, to acquire a new one. "(2) But this refers to a trade domicile in war, and the incomplete transitus was in the particular case to a country the character of which («') Bruce v. Bruce, 2 Bos. & Pul. 229, note. (k) Whicker v. Hume, (Gilchrist's case,) 13 Beav. 366, 398. (l) Bremer v. Freeman, 1 Deaue, 212. (m) Tlie rule of the Digest ou this point was different, but is now definitively- rejected. It was, si quis domicilio relicto naviget vel iter facial, gvmrens quo se con- ferat atqve ubi constituat, hunc puto sine domicilio esse: 50, 1, 21, 2. See Storv, Conflict of Laws, s. 47. It was the case of Jtunroe v. Douglas, 5 Madd. 379. («) Introduction Gfinerale aux Coutumes, s. 15. (0) 3 Curt. 448. Uno solo die constituitur domicilium, si de voluntaie appareat. (p) In Munroe v. Douglas, 5 Madd. 405 : and cited with approbation in Forbes V. Forbes, Kay, 354. [q) Spinks, 267. DOMICILE. 39 the person could claim by descent, both of which circumstances, as it will appear by the next *article, weaken the opinion as an autho- ,- ^„q -. rity for a general proposition on domicile : and the numerous L J authorities which declare that a former domicile is only lost by the ac- quisition of a new, and that the latter event can only happen by an acquisition in fact,(?') must, when they express no exception to their doctrine, be held to support the rule stated at the head of this paragraph, which is its necessary consequence. 40. Rule VII. — Except, perhaps, thai the domicile of origin is re- gained in transitu, so that in its favor the only requisite factum is a complete abandonment of the late dom,icile. This exception, supposing the previous rule established, is commonly, though somewhat improperly, cited by the phrase " native allegiance easily reverts ;" and its chief application has been in the prize courts. The liability of private property to warlike capture at sea has always depended not merely on the nationality, but also on the domicile of the owner : or it may be said that, for this purpose, domicile is the criterion of nationality. The motive doubtless, lay in the assumption that the benefit of trade mainly accrues to that country from the ports of which it is carried on : whence only an actually subsisting residence for com- mercial objects could afford protection to the owner's property as against his nationality, for, when such residence was discontinued, nothing re- mained to take the case out of the general principle which exposed enemy's property, as such, to capture. With these considerations were combined the respect paid to the place of birth by the feudal principle of allegiance, and the recognized *rule of international law, that r-iftn -, a state to which allegiance has been transferred has not the right L J to protect the citizen against his former government, if by his voluntary act he again places himself within its power. All this might have been expressed by a proper provision for the cases in which domicile should or should not be the decisive consideration, without admitting irregu- larities in the rules by which domicile is itself determined ; but the other method has been taken, and the exception above stated, which may sometimes have an anomalous effect on private rights, which are not within the reasons for it, is laid down by Story,(s) and supported by the Scotch case of Colville v. Lauder.(<) But I do not find any English authority for the exception, farther than for the purposes of the Court of Admiralty ;(m) and Sir John Leach, in the judgment already cited, expressly denies that, when another domicile is quitted, there is any dif- ference between the resumption of that of origin, and the acquisition of a third. (x) This, however, is of the less weight, because he holds the new domicile to be gained in either case in itinere, and because the (r) It would be unsatisfactory to cite a string of authorities, of no one of which it can be predicated with certainty that the generality of its language was meant to exclude an exception which there was no occasion to notice : but I may refer to Lord Cottenham's words in Munro v. Munro, 7 CI. & F. 877 — "the domicile of origin must prevail, unless it be proved that the party has acquired another by residence." (>) Conflict of Laws, s. 48. {t) Morison, 14963, App., and 5 Madd. 384. (a) The Indian Chief, 3 C. Rob. 12 ; &c., &c. {x) 5 Madd. 404, 405. 40 WESTLAKE ON PRIVATE INTERNATIONAL LAW. instance before him did not need a decision on the point, for the indica- tions of Dr. Munroe's intention, from the time he left India, did not point particularly to any country. The subject of this article leads me farther to remark that the mer- cantile domicile which is influential in prize cases, and which does not fall within the scope of the present treatise, concerned as that is with private rights in time of peace, is subject to some other peculiar rules : as that one who has mercantile concerns in two countries is fixed with r *A1 1 ^^^ character of each in transactions originating *in them respec- L J tively ; and that, as the gist lies in the trade, which may be carried on without a counting-house, no fixed establishment, such as is commonly understood in domicile, is indispensable to it.(^) 41. Criteria of the animus manendi. "We have now reached the criteria by which the animus manendi, required for the acquisition of a new domicile, is ascertained in the various combinations which human life presents for the consideration of courts of justice. Two leading classes of cases will readily be distin- guished. In one, duty, business or pleasure attach a man to one or more spots difi'erent from his recent, and perhaps continuing domicile, from which, however, he has not entirely withdrawn himself. Against the latter, each of the connections so formed with other places must be separately weighed. Does any of them amount to a transference of the sentiments of home ? In the other, the recent domicile is completely abandoned, there is no doubt of the intention not to return to it, but though settled habits of life have been contracted elsewhere, they exhibit a nice balance of attachment to several places, among which it is di£5oult to select the new lar and the fortunarum summa. It will not be necessary continually to advert to the distinction, for in each class the same criteria must be sought, but we shall not demand their presence in equal strength. The cases where the attachment to be appreciated is weighed against the prestige of a residence not wholly quitted, will call for a stricter proof than we can obtain when, as the decision lies between localities otherwise equal, that one must prevail towards which the scale is inclined by however slight a weight of argument. The first place is due to those criteria which the law will not allow to be rebutted, because they spring from the duty of residence in a certain place. r*4.?n *^^' ■^'^'^ VIII. — The wife's dom,icile is that of her hus- L J band.(z'^ Only if she take proceedings for a divorce, her actually separate resi- dence will be noticed for the purpose of founding the jurisdiction, since the law which professes to grant her redress might otherwise stultify itself. And when a divorce has been decreed, be it even a mensa et thoro only, (a) or the husband has died, the wife regains the power of (y) The Jonge Klassiaa, 5 0. Rob. 297. m Bremer v. Freeman, 1 Deane, 212. (a) Williams v. Dormer, 2 Robertson, 505. DOMICILE. 41 changing lier domicile, but so that she retains the last matrimonial domicile until she has actually changed it animo et facto. 43. Rule IX. — The doinestic servant has his master's domicile. Domestic, that is, living in the house in his master's habitual service : so that this rule only states a fact. The particular circumstances of any other service must be taken into account as criteria of the animus manendi. The French code expressly includes in the rule workmen living in the house with their habitual employers.(6) 44. Rule X. — An office which requires residence confers a domicile in that "place where its holder is hoimd to reside. Thus ecclesiastics are domiciled at their cures. Thus a service with the East India Company, or other Indian government, which requires residence in India, creates an Indian domicile :(c) and when one who held such an employment returned to his previous home in Scotland, in hope " of not being called on to leave it again," the Indian domicile was nevertheless preserved by the constant liability to a recall. (c?) The case last mentioned, which *was one of an officer in the Indian r-^An -, army, may be generalized into the proposition, that by entering L J the permanent military service of any government, a domicile in the territory of that government is acquired, and is retained notwithstanding a cantonment at a foreign station j for such cantonment is subject throughout to the contingency of abrupt termination, and the only lasting attachment is to the employing country. The same is true of a naval service, when the officer has his dwelling on shore in the territory of the government he serves;(e) and, on principle, perhaps even without that circumstance, as the ships of a nation are equivalent to its soil. But if the employing nation include several jurisdictions, the native subject who enters its military or naval service retains, in general, the character of that subdivision to which he previously belonged ;(/) and this is the true meaning of what in a certain case appears to be said, namely, that naval employment cannot change the domicile. (gr\ In that case, the person was Scotch by origin, as well as by residence during the intervals he passed on shore, and could not lose that character by a service which was not English but British : had he entered a foreign navy, his Scotch domicile would doubtless have been lost. On the other hand, the British service did not restrain the power he would otherwise have had to transfer his domicile to England, and it was necessary to examine his acts during the intervals of duty, in order to ascertain whether he had exercised it. 45. This rule is adopted by the Codg Napoleon in a modified form only, to which also it was restrained in the *ancient jurisprudence p ^ . , -. of France : namely, that a change of domicile is caused neces- <- J (b) Code Civil, Art. 109. (c) Munroe v. Douglas, 5 Madd. 379 ; Forbes v. Forbes, Kay, 341. \d) Craigie v. Lewin, 3 Curt. 435. Only this liability must not be so remote as to amount practically rather to the option, without the intention, of returning, than to any real prospect of a compulsory return. Forbes v. Forbes, Kay, 359. (e) Ommaney v. Binghain, 5 Ves. Ih*!. if) Dalhousie v. M'Douall, 1 CI. & F. 817. {g) Brown v. Smith, 15 Beav. 444, 448 ; 21 L. J. N. S. Ch. 356. 42 WESTLAKE ON PRIVATE INTERNATIONAL LAW. sarily by the acceptance of an oflBce requiring residence, and conferred for an indefinite period and without power of revocation, but not, unless there be independent proof of an intention to transfer the domicile, by a temporary or revocable appointment.fA) It may however be ques- tioned how far the tenure of the office can be of importance. Military service is terminable by the employing government, but, as we have seen, changes the domicile, and, on principle, if a private motive for removal need not extend to the whole future life, but will transfer the domicile so only it have a long and indefinite scope, then an indefinite residence imposed by duty ought to have the same effect, notwithstanding the chance of the duty being terminated by a revocation of the appoint- ment. The case is quite distinct from that of military quarters in a country foreign to that of the service, which are not a residence even for the duration of the commission ; and it is to such quarters, or to cases falling under one of the two next articles, that most of the instances mentioned by the jurists in support of the doctrine here opposed refer. 46. If the office require an occasional, but not a constant residence, the domicile is not thereby transferred. This was adjudged in the case of Lord Somerville, with regard to the parliamentary duties in London imposed by his election as a representative peer of Scotland, (i) 47. Rule XI. — But ambassadors and consuls retain the domicile of the country which they represent or serve. (J) P 5^, c -. *The house of an ambassador is considered to be a part of his L J sovereign's territory. But as the same reason does not apply to the domicile of consuls, another ground must be sought for the rule ; and it is supplied by the duty of these classes of public servants to act for the interests, and remain identified with the feelings, of the state by which they are accredited. Accordingly, the doctrine is confined to the retention of the home domicile by such ministers when sent out. If a government choose to employ in such capacity the services of one already resident in the foreign country, a frequent case with consuls and not un- known for ambassadors,(A;) the domicile is not changed by the appoint- ment. 48. Rule XII. — Of criteria which are not peremptory, the place of the wife and family prevails over that of business or occasional retire- ment, the merchant's town house over his country housc,(l) the landed proprietor's country house over his town house,{l) and the place where the citizen exercises public functions over that where he does not possess them or neglects their exercise. These are about all the rules of comparison which can be laid down from English authorities, or which are applicable to English life. Some purely negative ones may be added, as that it is immaterial whether the (A) Code CiTil, Art. 106, 107 ; Pothier, ubi supra, 15 ; Merlia, R6p. Dom., ? III. See The Goods of James Smith, 2 Robertson, 332, where the language used tends the same way, but is not decisive. (t) Somerville v. Somerville, 5 Ves. 750; and see Phillimore on Dom., p. 62. (j) As to consuls: Maltass v. Maltass, 1 Robertson, 79 ; Gout v. Zimmermann 5 N. of 0. 445. ' (i) Heath v. Samson, 14 Beav. 441. n\ 5 Ves. 789. DOMICILE. 43 residence be in a house or in lodgings,(}?i) and that no description which a man can give of himself is of any force unless supported by facts ;(n\ nor indeed, where the facts leave a doubt between two spots, have our courts much valued declarations of preference,{o) or of an intention to return from the *one to the other of them.(p) Such declarations p ^.„ -. "are undoubtedly admissible evidence," but are not entitled to ^ -■ the first degree of consideration.(p) 49. But what if the rules of comparison thus furnished should, in some case to which several of them are applicable, lead to opposite re- sults ? Is it possible to establish a scale of precedency among these rules themselves ? There is no more instructive instance of the mode of deal- ing with such cases than that of Forbes v. Porbes,(g) where the rule preferring the landed proprietor's country house to his town house came into conflict with that preferring the place of the wife and family to those where the wife, whenever she went thither, " was a traveller and visitor only ;"(r) and where also the force of the former rule itself was consider- ably weakened by the evident insufficiency of the country house for the fortune of the testator, while his town establishment was suitable to his rank. Sir W. P. Wood held the residence of the wife and family to be decisive, and used language from which it may be inferred that in ordi- nary cases it would prevail over every other consideration ; though " if some particular state of health required the wife to reside in a warm cli- mate not agreeable to her husband, or the like, so that he was obliged to visit his wife away from home, he might still be domiciled at a resi- dence of his own apart from her." But, had General Forbes not been a married man, the Vice-Ohancellor would have attached no weight to the insufficiency of a country residence, which in the general's own judg- ment appeared to be a sufficient mansion for himself and his successors. (s) 50. Another passage from the same judgment is worth *citing. y^Aj-i <' If a party select two residences, in one of which he can reside L J all the year, whilst in the other his health will not permit to do so ; and he must from the first be aware that, should his health fail him, his days must be passed where alone he can constantly reside j there is an addi- tional reason for concluding that he regards such place from the first as that which must be his home, a conclusion greatly fortified by his chief establishment being from the first fixed there." 51. Study at a university or other place of learning does not indicate an intention to trr.nsfer thither the domicile. Kather, as its probable duration is short, it implies the absence of such an intention. But if an academic life were adopted when the period of study was concluded, the case would be different, with which view the Koman law allowed the student to retain his former domicile for ten years, though we should now look more at the facts than at any fixed limit of time.(i) 52. Rule XIII. — An enforced sojourn does not change the domicile. (m) Whicker v. Hume, 13 Beav. 395, 401. (n) Whicker v. Hume, 13 Beav. 400. (o) Somerville v. Somerville, 5 Ves. 750 ; De Bonneval v. De Bonneval, 1 Curt. 856. (p) Anderson v. Laneuyille, 9 Mo. P. 0. 325, 335. (q) Kay, 341. (r) p. 366. (a) pp. 363-366. (i) Code, 10, 39, 2 ; The Benedict, Spinks, 314, 317. 44 WESTLAKE ON PRIVATE INTERNATIONAL LAW. The animus manendi which we have hitherto considered is either one freely adopted by a person sui juris, or at least, as in the case of a wife, one which results from duty, with which therefore the will is presuiped to coincide. But if one is compelled to remain at a place against or without his will, this is neither residence nor domicile. Thus it has been decided that an Irishman retained his original domicile notwith- standing that he died in prison in England, (m) and it appears to me that on the same principle a lunatic must retain the domicile which he had when he first lost his reason. In Lord Annandale's case, that domicile r*4.8 n ^'^^ ^'^ *^^ ^^'^^ country where he continued *during the lunacy, L ' so that the judge was enabled to discard the lunacy, from con- sideration without deciding on its effect ;(x) but I must confess that Mr. Phillimore believes that a*lunatic would acquire the domicile of the com- mittee of his person. (y) The latter is indeed the modern French rule, because the uniformity of law in France has deprived the domicile of its effect on the distribution of property on death ; but the old rule of that country, when its local customs varied as the laws of the component por- tions of the British empire do now, justly forbade the succession of a lunatic to be affected by any removal which might have taken place dur- ing the lunacy, and therefore without his will.(z) 53. Rule XIV. — Unless it be such as to exclude the prospect of return. " It is clear," says Mr. Phillimore, " in spite of two sentences passed during the time of the French revolution to the contrary, that the person banished for life {d6porti,\ whether for a civil or political offence, loses his original domicile. It cannot be doubted that the same sentence would be passed in England with respect to persons transported for life.'Yo.) The student should observe the difference between this case and that of the political refugee, whose residence is neither enforced, for he chooses the country of his sojourn, nor legally regarded as hopeless of return. (5) 54. Relation of Domicile to National Character. — " All those who are domiciled in the territory" are enumerated by Heffter among the proper subjects of a state, as distinguished from those who are only subjects for r *4.Q -\ certain ^purposes {suhditi secundum quid ;)(c) and similarly Mr. L -I Secretary Marcy, in his note on behalf of the American govern- ment in Koszta's case, lays down that " foreigners may and often do acquire a domicile in a country, even though they have entered it with the avowed intention not to become naturalized citizens, but to return to their native land at some remote and uncertain period ; and, whenever they acquire a domicile, international law at once impresses upon them the national character of the country of that domicile. It is a maxim of international law that domicile confers a national character : it does not allow any one who has a domicile to decline the national character thus conferred : it forces it upon him often very much against his will, and to his great («) Burton v. Fisher, 1 Milw. 183. {x) Bempde v. Johnstone, 3 Ves. 198. (y) On Domicile, p 55 (z) Code Civil, art. 108 ; Merlin, R6p. Dom. § V. No. IV. (a) Law of Dom., p. 89. (i) See above. Art. 38. (c) Europaische Volkerrecht, 3rd edit., p. 109. , DOMICILE. 45 detrimeut. International law looks only to the national character in de- termining what country has the right to protect."((i) Nevertheless it is certain that these doctrines are not generally admitted. Koszta's case did not need them, for not only had he taken the initiatory step towards naturalization in the United States, but the circumstances of his removal from Turkey had been such as distinctly to involve the consent of Austria to his expatriation. Neither do they appear needed by any motives of convenience. That indeed may require that the protection enjoyed in time of war by property embarked in commerce shall be founded on domi- cile ; or that a government which permits foreigners to reside in its ter- ritory should protect them, whether in peace or war, in the enjoyment of all rights springing out of their residence, and in the performance of all lawful acts in or originating from the territory; but scarcely that one whose avowed intention it was not to be naturalized should, on account of domicile, be treated as naturalized when beyond the territory, and in matters having no concern with *it. And, with regard to the j-^-^-. extent to which these doctrines are accepted, not to mention the L 1 British claim to perpetual allegiance, they go far beyond the French rule, which makes the loss of French nationality a consequence of a -foreign establishment adopted without intention of return, — a condition by no means necessary for the acquisition of a foreign domicile, and expressly repudiated by Mr. Secretary Marcy in the passage quoted, — and which also declares that a merely commercial establishment can never cause such loss of nationality. (e) If a free choice of national character be per- mitted to adults, which Vattel thought that natural justice required, the French rule would seem to be the best expression of that principle : the renunciation of the old country ought at least to be complete. 55. Domicile of a Corporation. — This is a notional conception intro- duced for purposes of jurisdiction and law, and named by analogy to the domicile which an individual has in fact. In the leading case of Ma- claren v. Stainton,(/) or Carron Iron Company v. Maclaren,(^) Sir John Romilly in the first instance, and Lord St. Leonard's on appeal, held that a company " may, for the purposes of jurisdiction, be deemed to have two domiciles. Its business is necessarily carried on by agents, .... and the places of business may, for the purposes of jurisdiction, properly be deemed the domicile." But Lords Cranworth and Brougham, on the appeal, whose judgment therefore prevailed, held that a domicile for jurisdiction was not created by the agency of one who " had no concern whatever in any way with the management or direction of the affairs of the company," though employed in selling its goods. It is evident that the decision cannot be drawn *from the meaning of the term p ^.^ .. domicile, but must turn on the juridical principles applicable to L J the duties of a body of persons acting through agents, so that the point must be deferred till these duties have been sifted from the international point of view. (d) Wheaton's Int. Law, 6th edit., p. 132. (e) Code Civil, Art. 17. See above. Art. 22. (/) 16 Bear. 279. (g) 5 H. L. Cases, 416. 46 WESTLAKE ON PRIVATE INTERNATIONAL LAW. [*52] ^CHAPTER IV. IMMOVABLES. 1. Introduction, .... 2. Jurisdiction, .... 3. Principle of Lex Situs, 4. Extent of Lex Situs as to Things and Rights connected with Immovables, 5. Incidents to the Property in Im- movables, . . ... 6. Forms required for the Trans- 52 56 62 67 69 fer of Immovables by the Owner, . . . 71 7. Capacity of the Owner to trans- fer Immovables, . . 77 8. Transfer of Immovables, and Creation of Rights in them, by Force of Law, . . 78 9. Effect and Evidence of the Con- tract of Sale, . . .85 1. Introduction. 56. We have next to consider the principles on which the persons, whom we have classed by national character and domicile, are amenable to municipal laws and jurisdictions, either generally, or in reference to particular subjects of action. Now, in jurisprudence, the origin of rights naturally precedes the mode of enforcing them, or, in other words, the civil code is prior to the code of procedure. This order was indeed long inverted in our law, for, from the absence in it of clear expositions of principle, as well as from the singular distribution of powers among various courts, there was hardly any other mode of ascertaining whether a right existed, than by enquiring exhaustively whether it could be pro- secuted under any of the known forms of remedy. Will trover lie ? will trespass on the case lie ? will chancery relieve ? But the reproach in r *'i^ ~\ *1i6stion is gradually being removed from us, as well by the L J improvement of the English law itself, as by that of the institu- tional treatises which contain its elements; and, similarly, writers on the conflict of laws now usually consider on what law tbe creation of a right depends, before treating of the appropriate jurisdiction for its enforce- ment. But such was by no means the course first taken, and it will be found that many of the doctrines on the selection of a law have been deduced from positions which had been previously held on the subject of jurisdiction. The maxim by which the passage was made from rules of jurisdiction to rules of law was, that every jurisdiction decided according to its own law, or, as it was expressed, paria sunt forum alicuhi sortiri et statutis ligari : si ibi forum, ergo et jus. Hence, if it could be de- termined to what jurisdiction any contention directly, or by the strict rule belonged, the law of that jurisdiction was to be applied if the matter arose incidentally, or by a permitted deviation from the strict rule, in any other forum : and hence again the whole mass of provisions contained in the Corpus Juris on the forum for each kind of action, and which in the empire of Justinian could not possibly have contemplated a diversity in the laws of those forums, became at once available for determining questions of the conflict of laws, when in the middle ages such diversi- ties arose. No doubt in the possibility of this last result lay one great IMMOVABLES. 47 temptation to the method itself, which was therefore partly occasioned by an overstrained reverence for the Roman law, and by a disposition to seek the solution of every difficulty in authority rather than in principle j yet the method was far from being wholly a mistaken one. 57. For, first, the departments of rights and remedies are not related to one another in private international law precisely in the same way as in municipal. In the latter, the authority of the soverign to command is assumed : *the question of right is merely of what he has com- p:).c^ -■ manded, and that of remedy merely of the method he has pre- L J scribed for redressing disobedience to his commands. But in the former, the authority of the sovereign is the important element in deciding both the law which, in any case, imposes a duty, and the jurisdiction in which redress for the non-performance of that duty must be sought. Thus, the grounds for asserting that title to immovable property must be made by the lex situs, and that immovable property can only be recovered in the forum situs, are so nearly similar, both propositions flowing from the territorial authority of sovereigns, that it is impossible to say which of them is logically prior to the other. 58. Secondly, a truth is embodied in the assumption that the munici- pal law to be chosen for a private international case is that of the juris- diction to which the matter originally and properly belonged. Thus, in the first case put in Art. 3, the privilege which I should have enjoyed if sued in my native jurisdiction, where I became surety, is justly treated as a right vested in me, and therefore to be respected in courts where the law of the sovereign who gave that right would not, as such, be of force. Or, putting the same point in a more general light, it is a prin- ciple of private international jurisprudence that rights which have once well accrued hy the law of the appropriate sovereign are treated as valid rights everywhere ; and by means of this principle cognizance is taken every day of extra-territorial facts, and of persons not generally subject to the jurisdiction, which facts and persons could not otherwise be brought within the competence of the court. But then, as such a right was never a reality unless there was a jurisdiction to enforce it, this principle sends us back to the jurisdiction to which the matter belonged in its inception, in order to ascertain the appropriate sovereign whose law applies to it. *59. And, thirdly, certain matters, which municipal laws r^itcK -i generally agree in grouping together for purposes of procedure, are L J in private international jurisprudence, on account of that general agree- ment, referred as a whole to the law of that jurisdiction to which they conventionally belong, although, if they were considered separately, the strict theory of sovereignty might refer them to different laws. This is in precise analogy to public international jurisprudence, in which a com- mon usage, existing among all the populations to whose intercourse the system is applied, is accepted as a sufficient foundation for some rules which do not necessarily flow from the theory of sovereignty. An exam- ple is furnished, in the private department, by a movable succession on death, which is entirely regulated by the law of the deceased's domicile, only because that is conventionally the jurisdiction for its distribution, though it may be difficult to show theoretically why the several chattels 48 WESTLAKE ON PRIVATE INTBKNATION AL LAW. whicli enter into it should not be distributed by the laws of their respec- tive actual situations. 60. On all these grounds it appears to me necessary to examine first the rules of private international jurisdiction, before coming to the choice of the municipal law by which the merits of each cause must be decided : and in both these examinations the questions relating to the property in the soil will naturally stand first, because they depend entirely on the territorial aspect of the idea of a modern state, which is far less intricate than its relation to persons. Farther, the same simple connection of im- movables with the theory of territorial sovereignty, both with regard to jurisdiction and law, furnishes the means of presenting their private in- ternational relations in one view, before entering on the other parts of the subject, as will be attempted in this chapter. r^SB"] *2. Jurudiction. 61. The right to the possession of land can only be tried in the courts of the situs. A trial elsewhere would be nugatory, as the officers of no other power could, without violating the national sovereignty, use force upon the spot to put or establish the successful litigant in possession. To a similar effect, each sovereign state is held internationally to have the eminent domain of its territory. This conception differs from the feudal one, in that it decides nothing as to the ultimate lordship of the soil between the sovereign person in the state, if any such there be, and his subjects, but asserts that as against foreigners the territorial sovereign enjoys the absolute ownership and disposal of the country. Whence it follows that only under his authority, or by his ministry, can possession be lawfully given or taken of any part of it. 62. The right of property in land can only be tried in the courts of the situs, for such property derives its only meaning and value from the right to possession. The Roman law, indeed, allowed the defendant to be sued at his domicile in rem, for the recovery of land situate in another province, as well as in personam : between the foruvi rei and that of the situs the plaintiff might choose. («) But that might well be in an empire subject to one supreme head, who could enforce throughout his domin- ions the process of any of his courts, and where the existence of an uni- form law obviated the inconvenience which would now result from decid- ing on titles dependent on a strange jurisprudence, so that an analogy for our present guidance can be drawn from thence. 63. The same propositions are true, and for the same reasons, of all |-^,„ , dismemberments of the property in land, *and the right to their L J enjoyment : as of servitudes ; rent-charges ; the property in the surface as severed from that in the subsoil, or vice versa; future estates, or particular ones limited in duration ; rights of mortgage, pledge, or lien; the equitable ownership as severed from the legal, or vice versa ; and if there be any other real right in any way falling short of the entire (a) Cod. 3, 19, 3. IMMOVABLES. 4^9 dominion of the soil. But the equitable ownership must be understood as here spoken of only so far as the decree of a foreign court may affect to bind it directly. That cannot in any sense be done ; but if a court, being competent in respect of the person or the obligation, enjoin a party to convey or deal with foreign land, it may be transferred or bound by his act done in obedience to such decree : and if there be a difference of opinion as to the competence, such as we shall hereafter see exists on many questions of personal international jurisdiction, it is of course the forum situs, and not that which pronounced the decree, which must decide whether the land is affected by the compulsory act. 64. In the mean time, as to the general principle of such compulsion, when such a special equity can be shown as would form a ground for compelling a party to convey or release English land, or any right therein, or for restraining him from asserting a title to such land or right, then the English chancery, if, according to its own rules, it have jurisdiction over his person, will similarly compel or restrain him as to land situate out of England, although a similar equity may not exist by the lex situs, provided only it be not absolutely excluded thereby. (6) Such an exer- cise of authority is, in fact, supplemental to the lex situs, and is grounded on the supposition that every law intends the rights which it confers to be used conscientiously, *of which, since the conscience is per- p^co-i sonal, the measure must be supplied, so long as the lex situs is L -1 silent, by that court which has personal jurisdiction ; while if the lex situs excludes the equity, then the right to hold the land free from it becomes one of the incidents of property, which, as we shall see, are decided for immovables by the law of their situation. This distinction, which is of essential importance, may be understood from the cases of Exp. Pollard(c) and Martin v. Martin, ((^) In the former, although the law of Scotland knows nothing of equitable mortgages, it was decided that the owner of a Scotch estate can be compelled in England to give effect to a pledge made by the deposit of its title-deeds : in the latter, that a pur- chaser's conscience is not affected by notice of an attempt made on valuable consideration to settle foreign lands, such attempt having been rendered ineffectual by the lex situs. There the law of Demerara, which gave the purchaser a good title notwithstanding notice, would have been absolutely contravened by holding him bound : but the Scotch law could not forbid the informal pledge of land by merely omitting to give a remedy in respect of it ; and indeed, precisely in the spirit of Exp. Pollard, the court remarked in Martin v. Martin that, while the land remained in the ownership of the intending settlor, it would probably have been ready to decree a sale, in order that the price might be settled on the trusts which had been destined for the land. 65. For the rest, the claim to affect foreign lands through the person of the party must be strictly limited to those cases in which the relief decreed can be entirely obtained through the party's personal obedience : if it went beyond that, the assumption would not only be presumptuous (J) A similar doctrine prevails in the United States : Massie v. Watts, 6 Oranch, 148. (c) Mont. & Oil. 239, 4 Dea. 27. , (d) 2 Russ. & My. 50Y. Jantjary, 1859. — i 50 WESTLAKE ON PKIVATE INTERNATIONAL LAW. r ^K,Q -I l>it ineffeetual. Thus, a bill will not lie for partition of lands t J ^beyond tbe jurisdiction,(e) or to settle their boundaries ;(/) nor can any equity be enforced by sequestration of such land :(gr) nor, again, will the court try any question which, like the validity of a will of foreign \anA,(h) does not involve a special equity between the parties, but is a general one affecting the land, and therefore solely dependent on the lex situs, on which law another tribunal than its own can only pronounce incidentally and not directly. 66. In pursuance of the proposition of Art. 64, thus explained and limited, the English chancery has, with regard to foreign lands, decreed an account of rents and profits between joint-tenants,(i) enforced specific performance of contracts for sale,(y) and agreements for the settlement of boundaries,(/i!) foreclosed mortgages, (Z) and expressed its readiness to assist in their redemption, (m) declared proprietors trustees,(») ordered reconveyances and releases of lands and interests in them fraudulently acquired,(o) entertained bills for discovery of rents, profits, and deeds, on r*rm *'^^ ground of fraud,(p) appointed receivers,(j) and restrained L -I by injunction the prosecution of suits commenced in the situs for the recovery of immovables. Tr) 67. The principles of this section show also that foreign land cannot be affected bj the administrative act of any court : as by the appoint- ment of assignees, syndics, curators, or administrators of the estate of any bankrupt, lunatic, infant, or deceased person. Such an appointment, though justified by the personal jurisdiction, and therefore valid for the other property of the individual, will be nugatory as to his foreign im- movables. Nor can the person be obliged to supply the defects of such (e) Carteret v. Petty, 2 Swans. 323, n. ; 2 Ch. Ca. 214; Roberdeau v. Kous, 1 Atk. 543. (/) Penn v. Baltimore, 1 Yes. 444, p. 447 ; which is rather to be followed than Tulloch V. Hartley, 1 Y. & C. C. C. 114. (g) When the English courts were held to have a superintendence over those of Ireland, sequestration of Irish land was consistently issued by the former: Ar- glasse V. Muschamp, 1 Vern. 135 ; Fryer v. Bernard, 2 P. W. 261. The latter case, however, supported by a dictum in 3 My. & Ke. 109, shows that colonial lands could not then, and that Irish lands cannot now, be sequestered here. {/)) Pike V. Hoare, 2 Eden, 182. (i) Carteret v. Petty, and Roberdeau v. Rous, ubi supra. (j) Archer v. Preston, cited in 1 Yern. 11 : and see dictum in Jackson v. Petrie, 10 Yes. 165. (k) Peuu V. Baltimore, ubi supra. (I) Toller t. Carteret, 2 Yern. 494. (m) Bent v. Young, 9 Sim. 180, 190 ; Beckford v. Kemble, 1 S. & St. 1. (n) Kildare v. Eustace, 1 Vern. 419. (o) Arglasse v. Muschamp, 1 Yern. 75; Cranstown v. Johnston, 3 Yes. 170; 5 Yes. 277, a remarkable case, as the sale set aside was a judicial one in the siiu^; Jackson v. Petrie, 10 Yes. 164. (j?) Angus T. Angus, West's Rep. tem. Hard. 23. (q) Harrison v. Gurney, 2 Jac. & Wal. 563 ; Clarke v. Ormonde, Jac. 108, 121. (rj Bunbury V. Bunbury, 1 Beav. 318. From Lord Hardwicke's language in Foster v. Yassall, 3 Atk. 589, and the argument in White v. Hall, 12 Yes. 322, it might be supposed that the jurisdiction asserted in this paragraph only applied to lands in colonies under English law. But that it is not so limited appears ex- pressly from Lord Alvanley's language in Cranstown v. Johnston, 3 Yes. 182 from which case White v. Hall is distinguished by the fact that the process of the local court had not been there abused, but there had been a decision of the local court on the very point. IMMOVABLES. 51 administrative act. In Stein's case,(s) indeed, in which the court of session held that the English statutes of bankruptcy, and a commission thereunder, did n(Jt operate on the bankrupt's heritable property in Scot- land, that tribunal took it for granted that they nevertheless imposed on him a legal obligation to execute the proper conveyances and do the ne- cessary acts for transferring it to his assignees. But in Selkrig v. Da- vies,(rt the House of Lords, on appeal from the same court, held that only a moral obligation to convey to the assignees was imposed, which might be justly enforced by withholding the bankrupt's certificate till he complied with it : and in a later case. Lord Wensleydale denied that *even the certificate can be properly withheld on this ground. (m) _ ^„^ -. There is a wide difference in principle between this case and that L J of Art. 64. Where there is a special equity affecting the person of an owner, in relation to his foreign land, and in favor of another person, the enforcement of such equity is a proper subject of personal jurisdiction. It falls expressly within the definition of Gains : in personam actio est, quotiens cum aliquo affinius qui nohis, vel ex contractu vel ex delicto obligatus est, id est, cum intendimus dare, facere, prcestare oportereJx) But that a sovereign should claim to affect foreign land generally, through the compulsory intervention of the owner, merely on the ground of such owner's status as fixed by his ordinary authority over him, does not differ perceptibly from a claim to affect it directly. 68. The foreign codes, jurists, and decided cases, agree generally with the English law in maintaining the exclusive claims of the situs to the jurisdiction concerning immovables. But though none would permit an action for the recovery of land to be brought in a foreign forum, there is, perhaps, not quite the same universal consent in denying that land may be affected by the administrative justice of such a forum. Thus Stock- mans asserts that a guardian, duly appointed by the personal judge of his ward, auctoritatem et administrationem suam extra territorium prmtoris, et in bona ubicunque locorum sita, exercet:(y\ and other writers are quoted to the same effect. It may, however, be doubted whether anything more is meant by these expressions than what is dis- tinctly said by John Voet : quod tamen ex comitate magis quam juris rigor e sustinetur ; cum in casu quo pupillus immohilia habet sita in eo loco qui non subest eideni magistratui supremo cui pupillus suhest ratione ^domicilii, magistratus loci in quo sita sunt immobilia rebus in suo j. ^„„ _ territorio existentibuspeculiarem posset tutorem dare.izS And so L "* -• Matthseus says that the guardian of an infant, or the curator of an estate ap- pointed for the benefit of creditors, nee tamen universorum negotiorum et bonorum administrationem consequitur, nisi cesset Judex ejus territorii in quoprcedia sita sunt; that though the latter silentio suo quodammodo ap- probare videatur curator em ajudice domicilii datum, vix tamen est ut curator ille prcedia alibi sita proscribere ac vendere possit sine speciali (s) Eoyal Bank of Scotland v. Outhbert, 1 Rose, 462. h) 2 Rose, 91 ; 2 Dow. 230, 246. (m) Cockerell v. Dickens, 3 Mo. P. C. 98, 134. (x) Inst. 4, 2. (y) Decis. 125, n. 6, p. 262 ; cited in Story, s. 497. (z) Ad Pand., lib. 26, tit. 5, s. 5. 5^ WBSTLAKB ON PRIVATE INTERNATIONAL LAW. jjermissw ejus judicis in cujus territorio sita sunt ; and that the same permission had best be obtained by the guardian, in case he desires to sell, for, though it was different in the Koman law, id hodie minus tutum essevidetur, quia hodie singiuloe provincice suam habent autonomiam.i^a) If at least Stockmans meant to go farther than this, he is contradicted by a great consent of jurists. (6) 3. Principle of the Lex SiTtrs. 69. Communis et recta senfentia est, says Huber, in rebus immobilibus servandum esse jus loci in quo bona sunt sita. I shall not heap up oth^r authorities to the same effect, because in the general proposition they would merely present an almost universal agreement of the jurists, while in particulars the same writers vary so much as to deprive their agree- ment in the general proposition of much of its value. This will be seen in the discussions we shall have to notice on the capacity of persons to convey laud or devise it, on the proper forms of conveyance and testa- mentary disposition, and on other points. r*RQn '^^- I* will tie more interesting and useful to examine *the L J reasons for the general proposition. The earliest notion, in ac- cordance with the scholastic doctrine of occult qualities, seems to have been that the territorial law impressed its own qualities on the land. Thus Hertius, who shows a rather antiquated attachment to the scholas- tic mode of treating private international law, writes : — rebus fertur lex cum, certam iisdem qualifatem, imprimit, vel in alienando, v. g, ut ne bona avita possint alienari, vel in acquirendo, e. g. ut dominium, rei im- mobilis venditce non aliter acquiratur nisi /acta /uerit judicial is resig- natioJc") But then the statute of the domicile impressed its own quali- ties on the person, and what was to be done if the two classes of quali- ties clashed ? For example : majority in A. is attained at 25, in B. at 21 ; can one domiciled in A. alienate land in B. at 23 ? Yes, says Her- tius, for a statute is personal which says one is a minor till 25, but con- cerns things if it says that a minor shall have no power of alienation. (if) Now, until some one will show that minority is something else than an abbreviated expression for a number of disabilities, of which that which respects alienation is one, this reasoning may be rendered thus, " that a personal statute uses words about persons, but the statutes which explain what those words mean are real." Such a method does not promise much, but it is perhaps as good as any which can be founded on the con- ception of statutes impressing qualities on persons and things. 71. Dumoulin and Huber, who are generally distinguished among the civilian jurists by preferring solid reasons drawn from the nature of things to formal ones depending on the words of statutes, or on their place in a systematic classification, here also strike out somewhat peculiar lines. Dumoulin, regarding, as usual with him, the Roman law as the (a) De Auctionibus, lib. 1, c. 7, n. 10. (b) See particularly BouUenois, Observation xxxix. quns. 2, 4. (c) De Coll. Leg., Sect. 4, § 6. {d) De Coll. Leg., Sect. 4, § 5. IMMOVABLES. 53 common law of Europe, and *modern statutes or customs as p ^„. -. merely introducing exceptions to it, seems naturally to have L J thought, if I may clothe his conclusions in the phraseology of an Eng- lish lawyer, that all such exceptions, whether founded on the law of the situation or of the domicile, jnust be strictly pursued. Thus, in the case put above, if the subject of A. has no curator, his disability is excep- tional, but the exception caused by the law of B. affects the land and is absolute, while that caused by the law of A. affects the person only while acting within the limits of A. — out of A. he can let his land situate in B., though in A. he could not execute the lease. But if a curator has been assigned him by the judge of his domicile, then his disability is an effect of the common law, and exists even when he attempts to act out of A.(e) Huber distinguishes between those provisions concerning land which the law of the situation does not permit even an owner sui juris to violate, such as an absolute prohibition of devise, or of selling the grow- ing corn apart from the soil, with which the law of the domicile can never interfere, and the rules of status, which must always be subject to the law of the domicile ; so that, in our instance, the subject of A. could not, wherever he might act, alienate his land in B., though the subject of B. who had attained twenty-three might alienate his land situate in A. This in truth is but an application by Huber of his principle that the fact of status must be referred to the domicile, but the incapacities attendant on the given status to the lex situs for immovable property, and to the lex loci actus aut contractus for other matters. (/) 72. It is evident that the above systems agree in this, that they are only applicable to a commonwealth of nations in which the law is derived from one uniform source, such *as the Roman law has been for p ^„f. -. the continent of Europe : where consequently little else varies L J than the forms of transfer, the age of majority, and, generally, the pro- visions on which the existence of status depends ; the modes and inci- dents of property, and those peculiarities of personal condition which constitute the meaning of any particular status, being pretty much the same everywhere. The feudal law of immovables is so different in all respects, whether we consider the estates or other modifications of en- joyment which it recognizes, the forms by which they may be created or transferred, or the effects of marriage, minority, or wardship, that if to a soil where it prevails we applied jurisprudence based on the Roman law, according to those international rules which as between the provinces of the latter would produce no inconvenience, we should only arrive at con- fusion, and often even at unintelligible results. To this cause, as well as to the intimate connection which feudalism established between the sovereignty of the territory and the lordship of the soil, we must attri- bute it that both in the British isles and in what are called the common law states of America, the doctrine that the lex stiMs governs immovables has always been carried out with a scrupulous consistency not easily to be found among the civilians who assent to the principle. But the excel- lent work of the late M. Foelix may be quoted in proof of the progress («) Conclusiones de Statutis, in Op. ed. 1581, 1 3, p. 556. (/) De Confl. Leg., s. 13, 13. 54 WESTLAKE ON PRIVATE INTERNATIONAL LAW. which a similar consistency now makes even on the continent of Europe, under the influence of sound theories of public international law ; while, considering the solidity of the reasons for it, it is much to be regretted that M. Demangeat, in editing the posthumous edition of that work, should have retrogaded in this respectY^) r *fifi 1 ^^' ^°® °^ these reasons may be drawn from the ^international L J principle of eminent domain above explained, from which it fol- ic ws that as no portion of the territory can be publicly alienated but with the assent of the sovereign expressed in a treaty, so also no foreigner can, as a prj^vate person, make title to any portion of the same district but with the assent of its sovereign expressed in his laws. Another reason may be found in the international principle which gives each sovereign the exclusive right to command within his territory ; inasmuch as the laws which originate proprietary rights are in fact commands restraining all men other than the proprietor from any acts which might interfere with the latter's enjoyment of the thing owned, and inasmuch as such acts of interference, if done at all, must be done at the situation of the thing, that is, within the territory, where neither domicile, nor place of execution of any written instrument, nor any other pretext, can found an exemption from obedience to the commands of the local sovereign. Or again, and this is but the same principle presented in a different light, no court can be bound to respect a foreign law, except in order to give effect to a right which has already been created by that law operating within its proper sphere : then indeed, as we saw in Art. 58, the com- mon equity of civilized nations compels all tribunals to lend their aid to a right which has once well accrued. But no title can accrue to land by a foreign law, because no foreign legislator can at the spot use force to put the claimant in possession, and the force to execute its mandates is of the essence of municipal law. 74. It will be observed that all the above considerations relate to the title to or property in immovables, and some confusion may perhaps be saved if we keep our minds fixed on this conception, instead of speaking of things themselves as governed by this or that law. Persons are go- r*R7 1 ■^srned by laws, not things; and the laws of property *are merely L J addressed to persons in relation to their conduct about things. This must of course have been well known to great jurists in all ages, but the clearest thinkers are liable to be deceived by their own language, and of such error some instances perhaps may be found in what has been written on movables and immovables as governed respectively by the laws of the domicile and of the situation. It is now time to enter upon the details, under their several heads, in doing which the nature of the subject will even more than usually limit our interest to the doctrines received in England. (ff) Droit International Privc, no3. 60, 93, &c. IMMOVABLES. 55 4. Extent of the Lex Situs as to Things and Rights connected with Immovables. 75. The lex situs must determine wtat things are so annexed to the soil that they can only pass with it, for the same reasons which apply to the soil itself, since the territorial sovereign has the exclusive power to give possession of the fruits, fixtures a,nd stock, no less than of the land. (A) For the same reason also, if the law of its casual situation pro- tects a chattel not annexed to the soil by requiring for its transfer the same forms which are used for immovables, or subjects it to the same course of succession, &c., that must prevail over the law of the place of contract or of the owner's domicile. Thus, when it was not fully settled that the sale of a negro was turpis contractus, it was held that no action lay on a contract made in England for the sale of a negro in a colony where he was an inheritance, and transferable by deed only.(t) 76. A similar principle applies to the various incorporeal ^rights j- ^„q -, which may be regarded as dismemberments of the property in L 1 immovables, such as servitudes, charges, liens, trust and equitable estates, &c. To no such right can title be made otherwise than by the lex situs of the immovable in which it is claimed, because it is only through the jurisdiction of that situs that the enjoyment of the asserted right can be obtained. Thus a heritable bond affecting Scotch land, being not there a subsidiary security for a personal debt, but an integral portion of the value of the land dismembered from the residue thereof, does not pass by the creditor's English will, but descends to his Scotch heir;(7i;) and the Scotch heir of the debtor cannot claim to be compen- sated out of the personal estate of his ancestor who was domiciled here. (A 77. If, however, a personal contract made in A. be secured by the pledge of land in B., and the former is void by the law of A., then the pledge will be void also, not by any direct operation of the law of A. on the land in B., but as a portion of an illegal transaction : the illegality of a contract being, as we shall afterwards see, determined for all juris- dictions by the lex loci contractus. Such cases have arisen on the grant of annuities in England, secured on land in Ireland, and void by the English annuity act ;(»i) and they show how vain is the attempt to lay down any such general rule as that, when there are two securities in dif- ferent countries for one debt, the immovable one will, as,they«s nobilius, determine the character and incidents of them both. Each must stand on its own ground, and so a movable security will pass by the creditor's will made in the form prescribed in his domicile, *though the p ^„„ -, same debt be also secured by a Scotch heritable bond ; and then L J if the debt be paid to the legatee, the Scotch heir, having no remedy, will have been indirectly affected by the will.(M) (h) Exp. Rucker, 3 Dea. & Ch. 704. (i) Smith v. Brown, 2 Sal. 666. (k) Johnstone v. Baker, 4 Madd. 474, n. ; Jerningham v. Herbert, 4 Russ. 388 ; Tam. 103. (Z) Elliott V. Minto, 6 Madd. 16 ; Drummond v. Drummond, in Brodie v. Barry, 2 Ves. & Be. 132. (m) Richards v. Goold, 1 Moll. 22. (n) Buocleugh r. Hoare, 4 Madd. 467 ; Oust v. Goring, 18 Bear. 383. 56 WESTLAKE ON PRIVATE INTERNATIONAL LAW. 78. Lastly, questions respecting the title to an immovable will not be affectSd by its actual sale, as long as the purchase-money remains dis- tinctly traceable, and liable to the equities which affected the land in the hands of the vendor. Thus, if by the lex situs a trader cannot give one of his creditors a preference by a pledge of land, the proceeds of the sale of such land, held by the trader's assignees in bankruptcy, will be free from any such attempted pledge, though it may have been contracted for at a place where a trader lies under no such disability. (o) 5. Incidents to the Property in Immovables. 79. The incidents to the property in immovables are so clearly de- pendent on the lex sitns that doubt has seldom arisen in England. It has however been decided, that if a mortgage debt be paid off by another than the mortgagor, without an agreement for the transfer of the security, the lex situs of the immovable decides whether the mortgage is ipso facto extinct, or remains capable of a subsequent transfer to him who paid the debt ;(p) also that the same law decides the liability of immov- ables to the debts of a deceased owner or to any class of them ;(5) also that English land, under what is called the mortmain act, cannot be de- vised for the establishment of a charity in Scotland ;(r) and that if an P ^„„ -. attempt be made to settle *land in a manner not permitted by the L J lex situs, the conscience of the person designated as first taker will not be bound to give effect to the settlement out of the absolute ownership which, by an alteration of the lex situs, may be afterwards conferred upon him as such first taker.(s) It is besides matter of daily experience that the capacity of aliens to take or hold land, and the conse- quences of an attempted transfer to them, depend in no degree on the domicile, either of the alien or of the transferor. 80. But among the incidents to property must be reckoned any re- straint on alienation, whether general or special ; and if special, whether directed against alienation in certain modes, as by will, or in favor of certain persons, as between husband and wife ; and whether such restraint be total, or limited to a certain proportion of the value. And the con- flict of laws arising out of provisions of this nature has occasioned much discussion on the continent, though there can be no doubt that here every such question would be decided by the lex sitits, being identical in prin- ciple with the restraint on alienation in respect of its purpose established by the statute of charitable uses. (A Thus if husband and wife were pre- cluded from mutual donations by the law of their matrimonial contract, we should hold such a preclusion inoperative as to English land, without (o) Waterhouse v. Stansfield, 9 Hare, 234; 10 Hare, 254. (p) Wilkiuson v. Simson, 2 Moo. P. C. 275. (?) Benatar v. Smith, 3 Knapp, 143, note. (r) Curtis v. Button, 14 Ves. 537. But money may be bequeathed by one domiciled in England for the purchase of lands in Scotland for charitable pur- poses : Att.-Gen. T.Mill, 3 Euss. 328 ; 2 Dow. & CI. 393. (s) Nelson v. Bridport, 8 Beav. 547. See below, Art. So. (t) See further, in Art. 89, as to the extent of this doctrine. * IMMOVABLES. 57 being driven to the distinction between a general disability and a special one, and regarding the question as rather one of the incidents of the property than of any personal disability in the husband or wife to re- ceive the conveyance. A somewhat less simple case may however be im- agined, as, ought English land devised by one domiciled in France to be reckoned towards the proportion of his property of which the French law allows a testator to dispose ? So far as the subject of this chapter is con- cerned, the property in immovables, *we must answer that the ^ ^_, -, English land would pass by the will; but the question remains, L J should the devisee be excluded from his share of the testator's movables and French land, except on condition of bringing the English land into hotchpot ?(m) Or, since the Scotch law excludes an intestate's heir from sharing in the personalty without bringing the land into hotchpot, ought this rule to be applied to the heir of a Scotch intestate's English land ? Such questions cannot arise in England, as our law fixes no disposable proportion, and attaches no condition to distribution on intestacy. But it is necessary to consider them, for the right understanding of a class of cases which does arise here, namely, those of Scotch heirs who, as we shall see in Art. 85, are put to their election by English wills. There is a seeming analogy, on which the two questions put above might be answered afiSrmatively ; but the contrary opinion appears the truer, since one who has attempted to devise foreign land by an informal document may put his heir to election by the expression of an intention which he had the right to entertain, and might have carried out if he had used the proper means ; while a law which fixes a disposable proportion, or distributes an estate with a hotchpot condition, has no authority to dis- pose of foreign lands, or therefore to impose an election on the foreign heir.^i;) 6. Forms required for the Transfer of Immovables hy the Owner. 81. In spite of the general agreement among the continental jurists in favor of the lex situs as governing immovables, there is an equally general agreement among *them in exempting the forms of their ^ ^_„ _ transfer from that rule, and subjecting them, either necessarily, L J or at the option of the transferor, to the lex loci actus. This is commonly grounded upon the principle that one who acts in any place is either necessarily subject, or at least may submit himself, to the laws of that place in respect of those acts.(x) It will be seen, however, on reflection, (a) C. N. Art. 844. (v) Balfour v. Scott, Mor. 239T, is right on either view, since the law which would have imposed the condition was not that which gave the benefit. (x) Mat omnium doctorum senteniia, says Dumoulin in his 43rd consultation, ubi- cumque consueiudo vel statutum locale disponit de solemniiate vel forma actus, ligari eliam exteros ibi actum ilium gerentea. Cette opinion, says Foelix, avail sa base dans les id4es de lafeodaliie; on rSputaii svjet temporaire tout individu qui se trouvait dans lepays: no. 83. I hold this temporary subjection to be a universal truth for governments feudal and not feudal, but, as shown in the text, it is beside the pre- sent question. For the rest, Rodenburg, John Voet, and Foelix, are among a small minority who permit the form of the lex situs as an alternative : Paul Voet, Huber, Hertius, &c., are for the lex loci actus exclusively. 58 WBSTLAKB ON PRIVATE INTERNATIONAL LAW. tliat this principle does not bear out the conclusion, for the question is not in what mode the lex loci actus obliges or enables the transferor to act, but in what mode he must act in order that the lex situs may give effect to his transfer. If the lex loci actus, to which it is true that he is personally subject, forbade or prevented his acting in that manner, the only result would be that he could not, while within its jurisdiction, transfer at all : such a prohibition or prevention could not found any positive authority for the lex loci actus to transfer by its own forms lands situate in another jurisdiction. 82. It will be readily imagined that an argument not soundly based in general jurisprudence could not have obtained so wide a currency, if it had not been countenanced by something in the particular system of law in which it has prevailed. The whole frame of continental convey- ancing has always supposed public acts as the rule, and made but a com- paratively sparing use of the private documents which constitute Eng- lish titles. Now it is clear that an officer can perform a ministerial func- P ^„„ -, tion only in ^accordance with his own law, so that, although the L -I land in any country may be transferable only by notarial act in a certain form, still it will be impossible for the notary of another country to draw up or pass a transfer in that form, if the form prescribed in his own country be different. Such a case amounts to the one just supposed, of the lex loci actus preventing a transfer in the mode demanded by the lex situs ; and, to prevent the inconvenience of the strict consequence, namely, a disability to transfer while the owner remains within that juris- diction, the rule has been very naturally established that conveyances, even of immovables, are rendered valid by the lex loci actus. This, how- ever, is merely a matter comiiatis gentium, and the attempt to base it on juridical principle is seen at once to fail, when applied to the case of any one of those continental countries and England. An Englishman in Prance is personally, for the time, subject to the French law, but there is nothing in the French law which forbids or prevents his making there a grant or will of English land in our private form, nor anything in the English law which would enable it to give effect to a grant or will made there in the French form. 83. I say, enable it : for here another distinction must be pointed out. As between countries in which the law of immovables is the same in essential points, being derived from a common origin, it is a matter of choice, for the affirmative of which an obvious weight of convenience preponderates, whether the formal requisites of even private acts of transfer used in one of them shall not be recognized in another: the necessity of making as many wills as the jurisdictions in which the tes- tator has land, and the ill effects of very natural mistakes in foreign formalities, are then obviated. Now, this is the case with those Euro- pean countries in which the law of immovables has two common bases in r *74 -\ feudal and Eoman principles, developed *and blended through L J historical processes of which the operation was general in extent and modified by the adoption of cognate codes. But the English law is free, as to immovables, from Roman influence, and even the feudal doc- trines have been developed in it in a peculiar manner, so that it cannot IMMOVABLES. 59 possibly recognize a transfer which, made in a foreign form, might con- template estates, rules of succession, and other incidents of property, so strange to its system that even the words in which they were expressed might be incapable of an English interpretation. If, indeed, the law of some colony or daughter state should vary from ours in the forms of transfer alone or principally, there would be no impossibility in our accepting a will, for example, of land attested by one witness, by a comity extended to the lex loci actus : and it is probable that cases of this description may now exist, or some day arise, in the vast common- wealth of colonies and states which derive their law of immovables from an English parentage. But even then, as a conveyance in English form, requiring no public act, is possible everywhere, there could be little con- venience, and might be much inconvenience, in departing from the strict juridical principle which requires a transfer in the mode prescribed by the lex situs. 84. That principle is firmly established in England and America, and I believe has never been questioned in either country as to conveyance inter vivos. That English land can only be devised or charged by a will made and witnessed as our law demands, was decided in Coppin v. Coppin.(3^) ^ 85. It might be hastily concluded from this, that a will not made in the form of the lex situs could not put the heir of an immovable to his election, that being an indirect mode of devising or charging the immo- vable. But a will *which is valid so far as to confer a benefit, j- ^„, -. is valid also for the purpose of expressing the conditions on which L J the testator intends to confer it, and it has consequently been decided that an English will, or Scotch deed of trust and settlement, may put a Scotch or English heir respectively to his election or approbate or repro- bate -.(z) nor is this at all inconsistent with Nelson v. Bridport,(a) since there the lex situs did not at the time permit the first taker to give effect to the attempted settlement, and the property once fairly acquired was acquired with all the incidents, including the benefit of a subsequent amplification, which the lex situs attached to it. 86. To this head, of the forms of conveyance, belong all such pro- visions, as that an heir cannot be disinherited without naming the grounds of disherison, that a testator or assignor must live so many days after the date of his will or of an assignment infer vivos, &c. On all these questions the rule of the lex situs is as well settled in Scotland(5) and America(c'j as in England, except so far as in America it may have been varied from by a decision quoted in the last edition of Story's Commentaries, but which I have not been able to refer to. It is said that in that case the assignment of a mortgage of real estate was held to be governed by the law of the state where made, and not that of the (y) 2 P.W. 291. (z) Brodie v. Barry, 2 Ves. & Be. 127 ; Cunningham t. Gainer, Mor. eiY ; Dun- das v. Dundas, 2 Dow. & CI. 349. In Allen v. Anderson, 5 Hare, 163, the will, in the then state of the English law, was not held to show an intention as to the after-acquired heritable bond; see 18 Beav. 391. See also Johnson v. Telford, 1 Buss. & My. 244. (a) See above, Art. 19. (J) Story, p. 728. (c) Story, p. 121. 60 WESTLAEE ON PKIVATE INTERNATIONAL LAW. state where the property was,(c^ language, however, which may have been used rather of the assignment of the debt than of the security. P^„„ -, 87. It must be farther remarked, that the questions discussed L J *in Articles 81-86 have lost much of their interest, even on the continent, from the extension of the system of transferring immovable property by entries in the public registers of the situs, since no one maintains that a form expressly imposed as an exclusive one by the lex situs can ever be dispensed with. By the law of 23d March, 1855, immovable property in France is transferred intei- vivos by a transcrip- tion in the bureau des liypotheques. 88. Interpretation .of Private Acts. — If a deed respecting immov- ables use terms relating directly to the land, as in describing the mea- surement of the quantity sold, it must be taken to refer to the measures or other circumstances existing in the situs.{e) If it use technical terms of limitation, having different meanings in different places, there is great doubt. AVhere the question has been as to the meaning of the word " heir," in a disposition of land subject to a peculiar custom of inheritance, as gavelkind, the interpretation has sometimes been according to that custom,(yj and once has followed the general law in opposition to it.[g) In a French case mentioned by Boullenois,(A) the law of the disponent's domicile was held to decide whether technical words implied or did not imply substitution, and this is also Burge's general rule as to interpretation.^i) We must, indeed, carefully bear in mind that interpretation does not raise questions of law but of fact ; and certainly, in what is neither technical nor relates directly to the land, the domicile seems to afford the most probable clue, and has been followed as to the currency intended in portions charged, on land by a marriage settle- ment. (^) [*77] *7. Capacity of the Owner to transfer Immovables. 89. I have considered, in Art. 80, the restraints on alienation by owners sui juris, arising out of the tenure of the land. They graduate into another class of restraints, those arising out of an incapacity of the owner. If we conceive status as that peculiar condition of a person whereby what is law for the average citizen is not law for him, then restraints on alienation resulting from marriage belong to status, and are properly ranked with the latter class, whether we suppose the case of a woman passing by matrimony under the power of her husband, or, though that point was considered in Art. 80, with the former class, the case of a husband and wife precluded from mutual donations. But the peculiarities of condition existing under local laws are innumerable, and mostly adapted to the systems of law in which they respectively exist, (d) Dundas v. Bowler, 3 M'Lean, 397, in Story, p. 728. (e) Fcelis, no. 93 (/) 14 Viner, Heir, G. 5, pi. 3-6. (c,) 14 Viner, Heir, G. 5,. pi. 1. (A) 2 Observ. 510, 531. The father's domicile, and not the situs, was clearly the ground of the ultimate decision, (i) Vol. 2, p. 857, 858. (/c) Phipps T. Anglesea, 5 Vin. 209. See also Lansdowne v. Lansdowne, 2 Bl. 60. IMMOVABLES. 61 SO that, as remarked in Art. 73, it is simply impossible to apply them to rights given by other systems : wherefore it was necessary, without regard to the true definition of status, to reserve for this section such incapacities only as are universally recognized, as those arising from minority and lunacy. Now, upon these it is quite possible to follow exclusively the law and the jurisdiction of the situs, but the principle of territorial sovereignty by no means demands our doing so, but gives us the alternative of Huber's doctrine, mentioned in Art. 71. Thus, for example, although by the lex situs majority may be fixed at 21 for those personally subject to it, yet that alone does not show that for the conveyance of land within its jurisdiction it does not accept any earlier, or require any later, majority which the personal law of the owner may prescribe. Nor, again, is there any principle to prevent the lex situs from accepting, as a res judicata, a sentence in which the owner of immovables has been found lunatic by his personal judge. *If the lex situs has an express provision on either point, it is ^ ^„n -■ conclusive : if not, analogies and arguments must be sought, L J which can only be discussed in connection with the general topics of personal law and jurisdiction, for which, therefore, I reserve the autho- rities, stating in the meantime that I know of no English decision. It must farther be observed here, that the acceptance of a foreign judgment of lunacy or minority would only conclude the capacity of the person, and not necessarily lead to recognizing the authority of foreign curators over the land, contrary to the doctrine of Arts. 67, 68 : also, that the system of Huber, if admitted in principle, is applicable between two given countries as to any incapacity resulting from a status which they may both recognize, though generally applicable only in respect of such universally allowed incapacities as minority and lunacy. 8. Transfer of Immovables, and Creation of Rights in them, hy Force of Law. 90. The doctrines under this head belong principally to succession ab intestato, marriage, and prescription. On the first point there is no doubt but that the lex situs declares the rules of inheritance : but opposite answers have been given to the ques- tion — since all rules of inheritance suppose the legitimacy of the heirs, by what law must their legitimacy be decided? One is that of the civilians, who consider legitimacy as a universal status, to be determined everywhere and for all purposes by the personal law of the claimant : the other that of the feudists, who, while admitting the universality of the personal status of legitimacy for all other purposes, yet, in determining the succession to land, review all the facts relating to the alleged mar- riage of the parents and to the birth of the offspring, and appreciate them according to the law of the situs, just *as if they had all r^nn-i occurred within its jurisdiction. On the latter opinion a variety L J may be engrafted, by demanding in addition a legitimacy existing by the personal law of the claimant, so that a failure by either law is fatal 62 WESTLAKB ON PRIVATE INTERNATIONAL LAW. to his succession. It is this last variety whicli, on the opinion of the judges, hut against the great authority of Lord Brougham, was declared by the House of Lords to be the law of England, in the case of Birt- whistle V. Vardill,(Z) in which one born in Scotland of parents then domiciled there, and who afterwards married there, was held not en- titled to succeed as heir to English land. For the exception thus intro- duced into the general doctrines on legitimacy, two reasons are given : one drawn from the supposed conflict of the real and personal statutes, and expressed by D'Argentr6 in the words, somewhat tinged with feudal pride, nuUus princeps legitimat ■personam ad iuccedendum in bona altcrius territorii:{m\ the other special, from the particular provisions supposed to be contained in the English law of inheritance. 91. On the question of conflict, the matter appears to stand thus. A bastard does not inherit, not because his bastardy is regarded by any law as a positive blemish which should disable him, but because the law, at least for the purpose of inheritance, professes ignorance whose son he is : it is therefore a question of the legal evidence of sonship, and determinable (as we shall see all questions of evidence are) by the lex fori, which, for immovables, must be the lex situs. But the evidence demanded of son- ship is birth in wedlock, and the fact of wedlock is referred by all laws to a single decision, drawn generally from the law of the place where, if at all, it was contracted. Thus, the lex situs may by no means claim r*Sm ^° appreciate itself every *detail in the history of the case, but L J only steps in in order to refer the decision to the law of the alleged marriage. 92. Nor does the doctrine of Birtwhistle v. Vardill appear to be at all more firmly based in the peculiarities of English law. The statute of Merton merely states our law, which no one disputes, and is totally silent as to the limits of its own application. But the whole science of private international jurisprudence is based on the assumption that laws have limits of application not expressed in their own tenor, some of which result from the limited authority of the legislators, and others from those maxims of jurisprudence, by which, since they are founded in natural right, all legislators intend their enactments to be interpreted. If, indeed, any statute does express the limits of its application, such expression will bind the courts of that sovereign power whence it pro- ceeds, whether consonant or not to the result which would have been derivable from juridical principles; but so completely is such an expres- sion absent from the statute of Merton, that the argument based on it might be used of any other, to the extent of destroying this whole branch of legal science. So also Lord Coke's dictum, that the heir must be ex Jastis nuptlis procreatus, does not decide, but opens, the question what is lawful wedlock : and, as Lord Brougham, after remarking this, pro- ceeds — " Is there any greater reason for being bound by the law of the country where the marriage contract was made, in deciding whether or not the wedlock was lawful, than there is for being governed, in ascer- taining the legitimacy of the issue of the marriage, by the law of the (Z) 5 Ba. & Cr. 438 ; 9 BI. N. R. 32 ; 2 CI. & F. 571. (m) Art, 218, gl. 6, n. 20. IMMOVABLES. 63 country where that issue was born, more especially when it was also the country where the marriage was had ? But can the court stop short, according to its own principle, at the mere fact of the marriage being according to the lex loci contractus ? Do not the principles on which their decision proceeds demand this further *inquiry, — Were the ^ ^q-, -, parties able to marry by the lex loci rei sitm? and thus a door is L J opened to the farther examination of how far a preceding divorce of one of the parties was sufficient to dissolve a previous English marriage. All such difficulties are got rid of by holding the lex loci contractus and na- tivitatis as governing the validity of the contract and legitimacy of its issue ; but they are not to be got over in this way by any argument which does not with equal force apply to holding that the legitimacy of the issue is a question equally to be governed by the lex loci contractus and the law of the birthplace." 93. In fact the argument of the judges, as expressed by Chief Baron Alexander, does not itself accept the English law, contained in Coke's dictum and the statute of Merton, as final in the case of a foreign-born heir; but adds to it the requirement that he shall be legitimate by the law of his birthplace. Now the use of international principles is not to add to municipal laws, but to fix their mutual limits ; and it must be thought strange that the judges who refused them for the latter purpose should have resorted to them for the former. If our municipal law had not originally a declarator of legitimacy, then it knew that status only as the synonym of birth in wedlock, wherever the latter words may occur in particular statutes or maxims. Thus it says that the eldest son born in wedlock shall be the heir, and either to accept or to refuse the foreign law as ascertaining the person who answers to that description is intel- ligible : to reject it from that function, to treat the question as one of mere English law, and then to say that the claimant, besides being the eldest son born in wedlock, must also be legitimate in some other sense by his personal law, is scarcely intelligible. There appears to be no escape from these inconsistencies and confusions of thought but in ad- mitting the universal status of legitimacy, ascertained by the appropriate law, as *the proper international evidence of birth in wedlock, ^ ^„^ -. whenever that question depends on foreign facts. The opposite L J view, says Lord Brougham, "makes a man legitimate or illegitimate according to the place where his property lies or rights come in ques- tion; legitimate when he sues for distribution of personal estate, a bastard when he sues for succession to real; nay, legitimate in one country, where part of his land may lie, and a bastard in some other where he has the residue. So in like manner all who claim through him must have their rights determined by the same vague and uncertain canon, a circumstance which I nowhere find adverted to below. All the learned judges proceed upon the case being one of an inheritance claimed by the party himself But what if he were dead years ago, and another claimed an estate in England to which he (the alleged bastard) never had been and never could have been entitled, an estate for example de- scending from a collateral who took it by purchase after the death of the alleged bastard ? Then the pedigree of the claimant must be made out 64 WESTLAKE ON PRIVATE INTBKNATIO NAL LAW. through legitimate persons, and the question of legitimacy is raised as to one who is not himself claiming any land, who never did or could claim any land ; and it is not raised in respect of any right in him to inherit, any right to be called the heir to any land. I apprehend this shows strongly the necessity of taking another view than the learned judges seem to have deemed sufficient for getting over the difficulty of the case, and of admitting that there is a status of legitimacy whi<;h is personal, and, travelling about with the individual, must be determined by the law of his country.'Yo) 94. The House of Lords, sitting as a Scotch appeal court, has applied these doctrines to Scotch lands by its j udgment in declarations of bastardy, |- ^„„ -. which is in fact the *only manner in which they can be so applied, L J since no one there questions but that the status determined in this prcejudicialis actio applies to inheritance as well as to every other matter ;(j3) and in the Strathmore Peerage it applied them directly to the succession to a Scotch title, which of course depends on the same prin- ples as that to a Scotch immovable, (g) We shall have to revert to these eases when on the general subject of illegitimacy, since in some the parent's marriage was, and in one it was not, celebrated in the country where the child was born. They all agree in that the law held under the circumstances to be the personal law of the claimant prevailed over, or rather was adopted by, that of Scotland, even where the title to a Scotch hereditament was directly or indirectly concerned. 95. Marriage, in the absence of express agreement, operates every- where as the legal creation of certain mutual rights, present or prospec- tive, of the husband and wife in each other's immovable property : in many foreign countries by the various systems of dowry and community, and at home, and in those countries of which the law has an English source, by the doctrines of dower and tenancy by the curtesy, and by the husband's present rights in his wife's freeholds and chattels real. There has been much discussion abroad for many centuries whether these rights are to be determined by the lex situs, the opinion of those, with D'Argentr6()-) at their head, who wrote in provinces where the Roman jurisprudence had least encroached on the feudal principles of real pro- perty ; or by the law of the matrimonial domicile, and that, either as the personal law of the parties prevailing, as in a question of status, over r *84 1 **^® ^^^ °^ ^^^ things, or, which was the opinion of Dumoulin,(s) L J as introduced by the tacit consent of the parties into the matri- monial contract. Many of the authorities will be found collected by Story,(<) and they need not be farther referred to here, since there is no doubt but that in England the lex sitvs would prevail,(M) as it does in America. " If," says Story, " persons who are married in Louisiana, where the law of community exists, own immovable property in Massa- chusetts, where such community is unknown, upon the death of the hus- (o) 9 Bl. N. B. 73 ; 2 CI. k P. 584. (p) Patrick v. Shedden, 6 Bl. N. R. 487 : Munro v. Saunders, fal. Rose v. Ross 1 6 Bl. N. R. 468. ''' (?) 6 Bl. N. R. 487. M Art. 218, gl. 6, u. 33, 34, 41. (s) T. 2, p. 963 ; t. 3, p. 555. (t) Sect. 450-452. (u) This was decided as to dower in Jephson v. Riera, 3 Knapp, 130, 149. IMMOVABLES. 65 band the wife would take her dower only in the immovable property of her husband, and the husband upon the death of the wife would take as tenant by the curtesy only in the immovable property of his vfih."(v\ 96. Our law has nothing analogous to the usufruct which that of Rome gives to the father in the property of his unemancipatcd child, but it may be interesting to know that, after long and earnest disputes on this point also, the best modern opinion is that such usufruct is personal-real, that is, that it must be given by the lex situs, and yet that even the lex situs cannot give it to a father who by the law of his domicile has not the patria potestas over bis child, the usufruct being regarded as incapable of existing otherwise than as an accessary of the patria jiotestas.(x'^ Hence an English father would not enjoy such usufruct in his child's immovables, though situate in a country where the patria potestas with such accessary is found. 97. The acquisition or extinction of title to any land or servitude by prescription must necessarily depend on the lex situs, not only from the general principles which attach *immovable rights to its province, r ^dk -i but because there is no conflict, the situs being the only proper L J forum for the determination of such rights, and the conflict in other cases of prescription being introduced by the claim of the lex fori to regulate that question as incident to procedure. The same remark applies to charges on land, though, if their amount be also personally due, the pre- scription of the situs will not affect the collateral securities. So also, in the personal actions which may be brought in any forum on contracts to convey immovables, the term of limitation existing where the subject of contract may be situate cannot prevail over that which the general prin- ciples on obligations, hereafter to be explained, would point out. An isolated point, under this section, is the lien for the price of supplies necessary for the management of an estate j which it depends on the lex situs to give or refuse to him who furnishes them.(y) 9. jEffect and Evidence of the Contract of Sale. 98. By the French law, before the enactment of 1855, above referred to, the property in land was transferred by the contract of sale.(z) In such a case, there is of course no room for a personal action against the vendor for specific performance, such as mentioned above in Arts. 64 and 66, for the only possible action is a real one for the recovery of the land, which has become the purchaser's though the vendor may detain it. But what if any law, like the English, so subdivides the property into an equitable and a bare legal one that the former is transferred by the con- tract of sale, yet so as to leave room for the suit *for specific per- ^ j^„„ -. formance in order to obtain the, transfer of the latter ? A ques- L J tion arises, how in either case must the contract be evidenced, in order that in the one case the entire, and in the other the equitable, dominion (y) Sect. 454. {x) Merlin, Repertoire, Puissance Paternelle, sect. 7, no. 1. {y) Sayers v. Whitfield, 1 Knapp, 133, 148. See also Scott v. Nesbitt, 14 Yes. 438. (z) Code Civil, Arts. 1138 and 1583. See above, p. TS. Januaet, 1859 5 * 66 WESTLAKE ON PBIVATE INTERNATIONAL LAW. may pass by it from tlie moment of sale. In the former instance, the answer is plain : for if the contract passes the entire property, it is in fact simply a conveyance, and its sufficiency must depend on the lex situs, as that of any other conveyance. And this answer is given by ro6lix(a) with regard to the French law which existed when he wrote. But in the latter some confusion may arise from the continuing operation of the contract as a contract no less than as a conveyance. Now we shall here- after see that in the general conflict between the lex loci contractus and lex fori on solemnities, contracts must ordinarily be fortified by all the proofs required by either, since they will otherwise fail, either by the lex ■ loci contractus as never having been originally binding, or by the lex fori as not sufficiently evidenced. The latter part of the proposition is strictly applicable to our case, with the observation that in it the lex fori is the lex situs, since it is only in the situs that the question whether the land is bound can be tried ; and thus we conclude, for example, that English land cannot be transferred in equity by a foreign contract which does not comply with the Statute of Frauds. (6) 99. But is the former part equally applicable, so that English land could not be transferred in equity by a contract satisfying that statute, but not also satisfying forms imposed by the lex loci contractus ? I ap- prehend that the reason here fails, for though we grant that a person not ^. *bound at the time and in the place of contracting cannot become L J so ex post facto by the accident of the forum, yet the land, in our case, is not bound through any binding of the person, but by an inde- pendent operation of the lex situs on the right of property. We have seen that all dismemberments of the property in land are themselves im- movable subjects of property, and, as such, alienated by the forms of transfer prescribed by the lex situs. The more obvious instances are dis- memberments in duration, as successive estates, or in value, as charges ; but the equitable dominion, entire both in duration and value, yet severed from the legal dominion, is but another kind of dismemberment ; and the contract of sale, evidenced according to the law of the situation, is the appropriate form for its conveyance, and, as such, immediately and neces- sarily efficacious. Hence also it appears necessary to conclude that even the remedy by specific performance could be pursued in our chancery in such a case, notwithstanding the absence of the form of contracting re- quired in the place of contract. If not entitled ex contractu to a convey- ance of the legal estate, the purchaser would at least be entitled to it as equitable owner : and this appears to be the opinion of Burge.(c) (o) Droit International Prive. no. 60. (6) Thus also a disposition of a heritable jurisdiction in Scotland, executed in England after the English form, was not sustained even against the grantor, to oblige him to grant a more formal conveyance : Dalkeith v. Book, Morison, 4464. (c) Vol. 2, p. 865. A similar question may now arise in France, for the law of 1855, reserves to the purchaser all such rights as he previously had against the vendor. Le consentement ridproque rests la lot des parties: Report of the Commis- sion on this law, n. 23. JURISDICTION ON OBLIGATIONS. 67 *CH AFTER V. [*88] JUKISDICTION ON OBLIGATIONS. 1. History and Principles, . . 89 I 3. Extraterritoriality, . . .114 2. English Doctrines, . . . 104 | 100. Having treated of the property in immovables, which exhibits in its simplest form the relation of sovereignty to the soil, it will be convenient to take obligatioQS next, as showing most simply its relation to persons. For as in the former we considered laws which protect a proprietor's enjoyment by forbidding the interference of others gene- rally, and which therefore did not involve a tie between the sovereign who issued them and any particular person, but only between him and the soil owned, so in obligations, which aire the rights acquired by one person of directing through the agency of justice the conduct of another, we have to consider .only the causes for which the defendant, as a definite individual, may be subject in the matter in question to the commands of a particular sovereign. Having thus examined the jural results of sovereignty from the two most distinct points of view, we shall be better able to enter on the remaining investigations of our subject; and these considerations will oblige us in this chapter, as well as in that on the international law of obligations, to discard all reference to the status of the parties, who will be presumed capable to act or con- tract by every law applicable or conceivably applicable to *their (-^oq -■ case. The question of jurisdiction must precede that of law, for L J the reasons given in Arts. 57 and 58. 1. History and Principles. 101. The Eoman rules of jurisdiction on obligations must first be detailed, not only on account of the influence they have had on the subsequent development of jurisprudence on this subject throughout the world, but because they are still, as such, acted on in those parts of the continent which have not codified their laws, or which, having codified them, have not inserted in their codes express provisions on the matter ; also because they have furnished the principles for those treaties which have been concluded between certain states, and especially between Prussia and small German states, for settling certain points of private international law. The following sketch of the Roman system will follow throughout the authority of Savigny, in the eighth volume of his great work on the modern Roman law, as well for the interpretation of the ancient sources, as for the facts of the present practice j but im- portant variations from his views will be noticed, both for their histo- rical interest, and since, from the nature of continental law, so far as it is neither codified nor fixed by treaty, any opinion on the true interpre- tation of the Corpus Juris may, and at times does, become influential on the daily judgments of courts. 68 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. 102. In tlie empire of Justinian, tlien, obligations, of whatever nature or wherever contracted, might be put in suit in the forum, rei, the per- sonal forum of the defendant. This was, for an Italian, either that of the civitas or respuhlica of which he was a municeps,(^a) or that of the P^.„„.^ one *in which he was domiciled, the choice lying with the L J plaintiff. The reason was that Italy was entirely divided into civitates having original jurisdiction, of one of which every Italian was a member by municipal citizenship, a relation which involved subjection to the jurisdiction of the community, although he might be domiciled in another such civitas or in a province, a relation which involved sub- jection to the local jurisdiction. This is certain in principle, but it is likely that an express statute existed, though no trace now remains of it, which prevented a plaintiff from choosing the former, or forum originis,(h\ against a defendant domiciled elsewhere, except when he might be actually found within its territory. 103. But, since the provinces did not contain civitates with original jurisdiction, (at least until in late times something of the kind arose in the authority of the defensores,) being subject to the imperial governors, the personal forum of a provincial was only that of his domicile, except so far as he had & forum originis at Rome, through the edict of Cara- calla, which extended the Eoman citizenship to all the free subjects of the empire. The Roman citizenship had been long before enjoyed by all Italians, through the lex Julia, so that for such of them as did not belong immediately to Rome, but primarily to some other Italian respuhlica, there existed a double citizenship, besides a domicile pos- sibly different from either. For this case, as well as for that of the pro- vincials after the time of Caraoalla, express texts of the Corpus Juris show that they could not be sued at Rome, in virtue of their citizenship, P^Q. _ unless actually there ;M which is the ground for presuming, L J *as noticed in the last article, that a similar protection existed against all drawing of defendants to answer out of their domicile on the ground of citizenship. 104. In the modern Roman law, existing as it does on a soil the juri- dical relations of which have descended from those of the provinces, and where also feudalism has counterbalanced the civic element introduced through the defensores in the later imperial times, the forum domicilii remains, but the forum originis, in its ancient sense, has disappearefl. For " in Germany the cities have indeed for many centuries past formed an important element of the constitution, as well in the empire as in the particular countries, yet only an isolated one, standing by the side of others generally more important, so that it was never there possible to (a) Civis is only used of the Roman citizen, in opposition to latinus and^ere- grinus : but municeps is used of every municipal citizen, whether of a municipium or of a colonia, either being a, cioitas or respuhlica. A colonia, however, is not in- cluded in municipium. (b) This citizenship as opposed to domicile, is the Roman meaning of origo, which has therefore nothing to do with what we now call the domicile of orjo-in in opposition to an acquired domicile. (c) And even then with many exceptions, constituting collectively the/ws domum revocandi. JURISDICTION ON OBLIGATIONS. 69 think of the whole state as running out into nothing but municipal territories and communities. And as with Germany, so it was in this respect also with other modern states : at most in Italy are circumstances still partially found which, however incomplete, not only remind us of the condition of the Eoman empire, but are even to be regarded as in fact remains of it."(rf) But this must be understood with the reserva- tion of what will be afterwards said, on the introduction by codes of a jurisdiction founded on nationality. 105. But besides the forum rei, the Roman law allowed the plaintiiF, and allows him as still practised, the option of suing in the proper juris- diction of the obligation, for which forum contractus and rei gestce are modern terms applied more widely than to the particular cases they would seem to indicate. " This jurisdiction," says Savigny, " is to be considered as founded in the several following cases : — '^Z, I- At the place which has been specially fixed on by the will of the parties as that of the fulfilment of the obligation, *whether it have j- ,^q„ -. been so fixed on through express words, (as in the famous law L J contraxisse unusquisqu'e in eo loco intelligitur in quo ut solveret se ohli- gavit,(e\\ or through the nature of the transaction to which the obliga- tion is to lead, that being such as is only possible at a single place (as in a contract for the sale or lease of land or houses, which implies the delivery of possession.) II. In default of a fixed place of fulfilment, the jurisdiction can be founded on the circumstance that the obligation arises from the trans- action by the defendant of affairs connected with a determinate spot. (Here belong the following cases. The tutela over persons not sui juris, as also every kind of curatela. Farther, the care of another person's affairs ; whether of all his affairs, a general agency or attorneyship, or of a certain class of them, as the management of a manufacture or of a commercial undertaking ; and whether in consequence of a contract — mandatum or operm locatm, or proceeding from the will of one side only — negotiorum gestio.(^f^ Lastly, one's own regular banking or com- mission business — argentaria In most eases this special ground of jurisdiction does not come prominently into view, because the trans- action of such affairs coincides with the domicile : they can however be separated, and then this ground of jurisdiction is practically exhi- bited.)(5r) m. The jurisdiction is farther founded on the place where the obliga- tion arises, when that coincides with the defendant's domicile. (The practical importance of this is felt when the defendant changes his domi- cile after contracting *the obligation, and so becomes liable to two jurisdictions in respect of it.) [*93] IV. Also the place where the obligation arises, though out of the de- (d) Savigny, v. 8, p. 90. (e) Dig. 44, 1, 21. (/) Which would give rise to an obligation quasi ex contractu, iff) PP- 217, 218. Argmiarium ubi contractum est conveniri oportet : Dig. 5, 1, 45, i. e., he must suffer himself to be sued. By mistranslating this, some have denied for this case the right of the plaintiff to choose the personal forum, which is, however, expressly recognized in Dig. 2, 13, 4, 5. 70 WESTLAKE ON PRIVATE INTEKN ATIONAL LAVT. fendant's domicile, can found the jurisdiotion, when through the cir- cumstances an expectation is reasonably grounded that the obligation will also be fulfilled in the same place. (For which purpose the nature of the obligation must be looked at. The shortest stay will do for an inn-bill ; a stay at a watering-place will do for the contracts of daily life, but not for those of commerce ; the setting up of a business of any dura- tion will suflBoe to found the expectation that the wares there contracted to be sold will be delivered there.(A.) V. When none of the above suppositions holds, the forum of the obli- gation is at the defendant's domicile. (As in contracts by travellers not falling under IV. : in the liability of the dos to be sued for at the hus- band's domicile, though the marriage contract may have been made else- where : and when a manufacturer sends round an agent to get orders, for the contract is then fulfilled at the seat of the manufacture by the sending the article, as is shown by the fact that from that moment the E-oman law placed the article at the risk of the buyer, although the pro- perty, requiring delivery for its change, did not pass till its arrival. )(i) 106. All these cases, so different in character as they seem, and so arbitrary as their copulation appears, yet may be referred to a common principle. It is universally the place of fulfilment which determines the special jurisdiction, whether expressly fixed on (I.), or resting on a tacit r *Qn ^expectation. (II. — V.) In both cases must a free submission L J of the defendant to this jurisdiction be presumed, unless excluded by an express declaration to the contrary. "(7^) 107. This /brum contractus, for so it is commonly called notwithstand- ing that the obligation may have, arisen quasi ex contractu, serves gene- rally only for those actions which aim at the fulfilment of the obliga- tion, and not for those which seek its dissolution, or to recall that which has been done in pursuance of it : unless indeed the dissolution have a common origin with the obligation, as when it is claimed through a con- tract collateral to that which created the latter. (A 108. The forum delicti is a conception foreign to the older Eoman law, but placed in the imperial times on a level with that of contract, so that the plaintiff could choose between it and the personal forum. It does not rest on presumptive submission, but on the mere breach of the law, so that it needs none of the accompanying circumstances, which, as guides to the expectation of the parties, are required for the forum of contract, where that is not expressly fixed on.(m) 109. But the special forum of the obligation can only be made use of (A) pp. 221-223. DurUsimum est, says TJlpiau, quotquot lode guis navigans vel iterfaciens delatus est, tot locis se defendi. At si quo constitit, non dico jure domicilii, sed tabernulam, pergulam, korreum, armarium, officinam conduxil, ibique distraxit, egit: defendere se eo loci debebit : Dig. 5 1 19 2. (i) pp. 224-226. ' ' (k) Kiai alio loci ut defenderet convenit : Dig. 5, 1, 19, 2. The whole passage in inverted commas is translated from Savigny, t. 8, pp. 226-228 ; except that the illustrations in parentheses are taken from bis separate developments of the seve- ral heads. (l) Savigny, v. 8, p. 241. But Linde unconditionally denies the application of ihe forum contractus to its dissolution. (m) Savigny, v 8, p. 239. JURISDICTION ON OBLIGATIONS. 71 wten the defendant is either personally present there, or possesses pro- perty there, in which latter case the plaintiff can obtain the missio in possessionem. It might be thought that Justinian removed this restric- tion by the 69th novel, but the language of that law is vague, and it does not seem to have been so interpreted or acted on even in ancient times. "The great preponderance of modern *practice has p^qk-i sided with this opinion, so that thus the jurisdiction of the obli- L ' J gation cannot be made available against an absent person through the mere requisition of a foreign tribunal. 'V»i) 110. Of the opinions opposed to the above system of Savigny, that which has made itself most influential in practice is the view, commonly diffused in the middle ages, by which the place of contracting the obli- gation, (locus celehrati contractus, or uhi verba prof eruntur,^ and not that of its destined fulfilment, was supposed to determine the special jurisdic- tion in the Roman law. The texts on which this view chiefly rested are at uhi quisque contraxerit,(o\ which was regarded as furnishing the rule, the concluding part of the same citation — contractum autem non utique eo loco inteUigitur quo negotium gestum sit, sed quo solvenda est pecunia — being regarded as merely an exception for the case of an express contract to pay money in a certain spot : and proinde et si merces vendidit certo loci, vel disposuit, vet comparavit, videiur, nisi alio loci ut defenderct convenit, ibidem se defendere.ip\ The former, however, is identical in effect with the law confraxisse, mentioned in Art. 105, (I.) ; and the latter is not a law at all, but a suggestion of Ulpian as to what might be thought at first sight, which he immediately corrects by the remarks cited in the note to Art. 105, (IV.). But in modern times, the opinion that the place of fulfilment furnishes the true Eoman forum of the obli- gation has gained ground both in theory and practice, though there has been much discussion whether, when that place has not been expressly fixed on by the parties, its jurisdiction is founded on their tacit expecta- tion, or on laws obligatory without the intervention of their will. The *Prussian code however, following the Eoman law as understood ^ ^„ „ -. when it was compiled, and several treaties concluded by Prussia L J with small Grerman states, prescribe the forum celebrati contractus, but reserving to the plaintiff his choice of the defendant's personal forum, for every case in which a fulfilment at a certain spot has not been stipu- lated for :(q\ and Linde still maintains the forum celebrati contractus as in the common law of Germany competent concurrently with the so called forum solutionis. [r\ 111. To the Roman system, however, there has always existed on the continent one great exception. Tlh.e forum contractus, whether celebrati or solutionis, was not received in France, from the vigor with which the feudal system flourished there. The seigneurs had patrimonial rights of administering justice, and in the royal courts the emoluments of justice («) Savigny, v. 8, p. 245. Foreign, that is, to his domicile ; nationality being rejected by Savigny as a ground of jurisdiction. (o) Dig. 42, 5, 3. {p) Dig. 5, 1, 19, 2. (q) Allg. Ger. Ordn. 1, 2. \r) Lehrb. Des Deutsch. gem. Civil processes, 7th edit., s. 91. 72 WESTLAKB ON PRIVATE INTERN ATIOKAL LAW. were, on account of the venality of their offices, considered as forming for the judges a kind of property. Consequently the trial in- his domi- cile, being no longer the privilege of the defendant so much as that of the judge, could not be waived by the former, either through his sub- mission when sued elsewhere, or through his previous consent in con- tracting ; and both the seigneurs and the royal courts were authorized to reclaim their justiciables, even when the tribunal seised of the cause had jurisdiction over the subject of litigation, and was only incompetent by reason of the domicile of the parties, (s) Now the rule of the hx loci contractus, as governing obligations, was drawn from the common rules of jurisdiction, on the maxim d ihi forum ergo et jus : and it is expressly on this ground of the non-applicability in France of the common doc- ^^q„-, trines of jurisdiction, that Boullenois rejects ^altogether the lex L J loci contractus as a principle, and betakes himself to a separate consideration of the motives of decision for each of the cases ordinarily included under \t.{t\ To the same source must probably be referred the general disposition of the old French jurists to postpone the law of the place of contract, considered as a rule, to any special tests by which the intention of the parties can be inferred ; and of which, in anticipation of the discussions on law to be gone into hereafter, an instance may be given from Dumoulin. The rule of the Digest by which the vendor of land was, in the absence of expression, required to procure such a num- ber of sureties, and who would warrant the title in such an amount, as might be prescribed by the local custom, — that being taken as the inter- preter of his contract, — was during the middle ages universally under- stood to refer to the custom of the place of sale. Another interpretation, one would have thought at least equally obvious, would refer it to the custom of that place where the land sold is situate. Dumoulin however does not question but that the place of sale is meant, only he says that the rule will not apply to a vendor and purchaser of one country who may casually contract in another, because the law of their common domi- cile is binding on them, as that of which they were both aware, and which neither intended to reject. (m) 112. But the principle of the forum contractus was introduced into France, to a modified extent, by the ordinance of 1673, which, in com- mercial matters, gave the plaintiff a similar choice to that which he now has in the same matters by Art. 420 of the Code de Frocidure Civile, which runs thus : — Le demandeur pourra assigner, d, son choix, devant le tribunal du domicile du difendeur, devant celui dans V arrondissement r*QS1 duquel la promesse a iti faite et la *marchandise livr6e, devant L J celui dans V arrondissement duquel le payement devait etre ef- fectui. In order to understand the extent to which this relaxation is carried, we must examine the rules which govern the competence of the tribunals of commerce, to which alone it refers, in respect of the subject of litigation. They are then competent as to all engagements and trans- (s) Henrion de Pansey, De I'Autorit^ Judiciare en France, 3ine edition, 1. 1, pp. 370,371. {t) T. 2, p. 456. (w) T. 3, p. 554. JURISDICTION ON OBLIGATIONS. 73 actions between merchants, shop-keepers and bankers :(a;) as to the pur- chase of goods bought for the purpose of reselling or letting them, whether with or without having worked upon them ; as to every business of manu- facture, commission, carriage by land or water, contracting, agency,(y) auctioneering, or public spectacles; as to all operations of exchange, banking, brokerage, or of public banks ; as to bills of exchange, and re- mitments of money from place to place, between all persons whatsoever, (i. e. traders or not :)(z) as to a number of other specified matters, ap- parently intended to exhaust all that relates to shipping and the employ- ment of ships in trade ;(a) in actions against factors, and shopkeepers' clerks and servants, with reference to their employment as such ; as to the notes made by persons accountable to the public revenue :('6) and as to bankruptcies. (c) To this extent then redress may be had in France, whatever the personal forum of the parties. 113. Also the Code Napoleon has reintroduced the principle of na- tional character as determining the personal forum,((^) and has added the novel conception of a personal *forum of the plaintiff,(e) on the rating -i ground that a subject is entitled to demand justice of his sove- L J reign : by which means the French courts, other than those of commerce, are now open to all actions on obligations in which either the plaintijff or defendant is a French subject, or a foreigner who, with the authorization of the French government, has established his domicile in France, wher- ever the obligation may have arisen or is to be fulfilled. Farther, though this has formerly been much disputed, an overwhelming weight of deci- sions now leaves no doubt that a domicile in fact, of either party, though not authorized by government, will at least found the personal jurisdic- tion, though it may not conclude the personal law.(/) 114. But what if neither party fulfil these conditions, and the matter is not within the competence of the tribunals of commerce ? The Code Civil then contains no provision giving the forum contractus any wider recognition than it had before, except perhaps in Art. Ill, which em- powers persons (foreigners are not distinctly mentioned) to elect a domicile in France, expressly, for the purposes of the special instrument containing the election. Now even in the old jurisprudence it might have been said that the reasons given above for denying the forum con- tractus as to those who were justiciable in a French domicile, did not apply to foreigners over whom no French judge had a right of jurisdic- tion, and from whose creditors justice might sometimes be hopelessly withheld if not done them in France. But the practice, though not constant, tended to reject that consideration -.(g) and under the Code Napoleon, according to Foelix, it stands thus. The defendant may give (x) Code de Commerce, Art 631. (y) This word appears to translate both agence and bureau cHaffaire. (z) Art. 632. [a) Art. 633. JEntreprise de conatrueiion in this article has been decided to mean the buiding ships only, and not making a canal : and the article has also been held to refer only to marine and not to fluviatile navigation. See the cases in Bogron's notes on it. (6) Art. 634. (c) Art. 635. (d) Art. 15. (e) Art. 14. (/) Fcelix, no. 152, with Demangeat's note. {g) Foelix, no. 149. 74 WESTLAKE ON PRIVATE INTERNATIONAL LAW. the court competence by his submission, either througli appointing in the contract a place of payment in France, *or through an elec- L -1 tion of domicile under Art. Ill of the Code Civil, or through not pleading to the jurisdiction in limine litis. But the court cannot entertain the cause without such submission, nor is it bound to entertain it even by such a submission, but may declare itself incompetent propno motu.{h) And this has been held also on the similar provisions con- tained in the codes of the Two Sicilies and Belgium, though in Khenish Prussia, where the Code Napoleon has also been received, the forum contractus is admitted. (i) M. Demangeat, however, shows that by the most recent French decisions jurisdiction has to a certain extent been assumed, even over recalcitrant defendants, on the ground of the locus celebrati contractus, or the locus delicti, being in France. (A) 115. Next, to consider on principle the several forums which have been traced historically, those of the defendant's domicile and nationality seem to be reasonably founded in the general authority which their respective sovereigns exercise or claim over him, and the protection which he enjoys or may claim from the same sovereigns. If indeed, for domicile, these considerations are weakened by the question how far it alone can give claim to protection, beyond the territory, and in matters having no concern with it,(Z) yet in the same case they are fortified by the presumption of habitual presence, whicb nationality does not carry with it, while it is obviously just that every one should furnish to his creditors some place where he may be always expected to meet their claims. Indeed the Roman rule, supposed to have restricted the forum r*inn '""'iS'i^'s *to the case of the defendant's actual presence, appears L J a very reasonable one : but for rejecting that forum altogether, on account of the change of circumstances, when the division of the civilized world into independent states presents a condition of things so nearly analogous to the ancient Italian civitates, sufficient cause does not appear to have been given. 116. For a personal forum of the plaintiff, founded on domicile or nationality, the reason assigned appears inadequate. Granted that justice is the sovereign's debt to his subjects, the question remains whether it is justice to call on any one to answer, at a distance both from his home and from the seat of the transaction in question. Some- thing may be said for giving up the principle of suit in a determinate forum altogether, as antiquated. And, indeed, now that locomotion is frequent and easy, and the occasions are surprisingly multiplied on which men contract obligations abroad, one is led to meditate on a remark of Lord Camden, who said, in sustaining a colonial suit, though one had been previously commenced in England for the same matter, — " As to the inconvenience, considering the difficulties of administering justice between parties occasionally living under the separate jurisdictions, I (Ji) Pcelix, no. 155. (i) Fcelix, nos. 151, 168. (ic) Note to the 3rd edition of Fcjelix, no. 151. Wiiere a criminal tribunal can award damages for tlie crime it punishes, the foreigner who sustains the injury has always been allowed to claim them ; Poelix, no. 165. (I) See above, Art. 54. JURISDICTION ON OBLIGATIONS. 75 think the parties ought to be amenable to every court possible, where they are travelling from country to country : and we must then en- deavor to correct the mischief of these double suits as much as we can, by allowing in each country the benefit of all the other proceedings in the other part of the king's dominions."(?Z) Nor will the rights of the litigants be in general affected by the choice of a forum, since they depend on the law to be applied, and it is agreed by all that the law appropriate to each case should be selected on principles common to every tribunal. On the other hand, there is the harshness of suing where proofs cannot easily be furnished, and where it may be r-^-. „„-, *vitally inconvenient to a party to be compelled to sojourn; con- L -I siderations which to most lawyers but English will appear decisive. And as long as these considerations are allowed to maintain the principle of suit in a determinate forum, they tell entirely for the defendant, who must be presumed not liable till he is proved to be so. 117. With regard to the peculiar forum of the obligation, it is true that the reasonable expectation of the parties ought not to be disap- pointed, (m) The whole system of private international law rests on the extension of this protection to all such expectations, wherever and by whomsoever formed, a principle which is closely related to that of Art. 58. But there seems an impropriety in supposing that the expectation of contracting parties is directed towards any one jurisdiction. In the first place, they usually expect the voluntary fulfilment of the obliga- tion, and not its compulsory fulfilment, or redress for its non-fulfilment. Or, if they do look on each other with mutual suspicion, they would probably desire that any and every court should be ready to help them to their rights. But how do these become rights ? only through the law which imposes a duty as the result of the contract, and that must be the law of the sovereign who has the authority to command the con- tracting person at the time of his contract, the sovereign, namely, of the locus celehrati contractus. It does not from this follow that the same place must necessarily furnish the forum contractus, for there can be no suit till there is a breach, and, if the locus celehrati contractus be not the place of fulfilment, no breach may occur while the party is within the territory, and therefore subject to the commands, of its sovereign. But it follows, by the principle of Art. 58, that, the duty of fulfilling the obligation having been once well imposed, a breach should be re- dressed *when it occurs by the tribunal of every other sovereign p^, „.,-. who both can, and reasonably can, do so : and this is true of the L J tribunal of the place of fulfilment, though the defendant be not present there, provided he have property there through which the breach can in fact be redressed, because he ought to have been there, either per- sonally or by an agent, to fulfil his obligation, and such redress is there- fore reasonable. If the place of fulfilment be founded as i\L6 forum con- tractus on the mere expectation of the parties, it is extremely difficult to give any reason why its judge may not render a valid personal sen- tence in ahsentem : so that in Savigny's system the condition of the {II) Bayley v. Edwards, 3 Swan. 111. {m) See above, Art. 106. 76 WESTLAKB ON PRIVATE INTERNATIONAL LAW. defendant's presence or possession of property figures as a condition narrowing the principle, (m) 118. The student may perhaps hesitate at its being said in the last paragraph, that the sovereign of the locus celehrati contractus has the authority to command the contracting person at the time when he binds himself. It is however universally received, both in the theory and practice of international law, that authority to command is vested in the territorial sovereign, as to all those who whether permanently or tempo- rarily are found within his geographical limits. Thus persons, foreign both in nationality and domicile, are in all countries daily made amen- able to criminal jurisdiction for offences there committed: nor was it ever imagined that for this purpose the authorization of their own govern- ments is necessary. Thus also in private law the same principle is impli- citly admitted by those who maintain that a jurisdiction is founded by delict, that is, now, considering the modern French practice noticed above, by every authority on the subject. And the command which imposes the legal duty of fulfilling a contractual or quasi-contractual r*in4.1 obligation ^thereby exposing to suit to redress the breach of that L -I duty, is essentially of no different nature from the command which enjoins redress of an injury. So close and natural has their con- nection always seemed, that in the ancient forms of action of the English law many a claim of a contractual or quasi-contractual nature could be prosecuted in trespass on the case, the form of which the idea was taken from delict. The non-performance of a contract is in truth an injury. 119. Nor does the proposition at all interfere with that allegiance which subjects, wherever they may be, owe to their own sovereign. The permanent and temporary subjections are concurrent. If they .should be at variance, the moral duty may often lie with the conduct prescribed by the former. But as long as the latter continues, and in a state of peace, the permanent sovereign is debarred from enforcing his commands by the immediate employment of physical force on a foreign soil, and can only attack the property his subject may have left at home, or threaten his person on his return ; while the temporary sovereign can touch the person, though, if he does so without reasonable cause, redress may be claimed by the government which owes protection in return for alle- giance. 2. English Doctrines. 120. On approaching the English law on this subject, we enter at once on a different line of thought. Partly from the small influence of the Koman law, still more, probably, from the early subjection of the whole country to the immediate authority of the curia regis, the idea of one or more determinate forums for each action did not here arise. We knew nothing at common law either of the forum rei or of the forum rei [*105] gestae, England forming, in the superior ^branches, but one undi- vided jurisdiction. There were, however, rules of venue, that is, of the locality in which that single jurisdiction should cause a ques- (re) See above, Art. 109. He calls it a heschr'dnkende hedingung. JURISDICTION ON OBLIGATIONS. 77 tlon of fact to be tried by jury; and these rules, though originally in- tended merely to portion out business as to which the competence of the court was undisputed, reacted on the competence by limiting it to actions for which the rules enabled a venue to be assigned. Hence our great classification of personal actions, with a view to the question of competence, is into local and transitory : the former arising from causes which could not have transpired elsewhere than in the place of their actual occurrence, such as trespasses to land ; the latter from facts which it is supposed might have taken place anywhere, as personal injuries and breaches of promise. Transitory actions at common law were entertained against, and at the suit of, any British subject or alien friend, if only the defendant happened to be in England at the right moment, so that process might here be served upon him, wherever the cause of action really arose ;(o) for, if it arose abroad, a venue in England was assigned it, this being possible because the venue for transitory causes of action arising even in'England is arbitrary. But inasmuch as the venue of a local cause of action is not arbitrary, to such actions it was farther neces- sary, besides personal service on the defendant within the realm, that the cause should have occurred in England. (p) *121. The latter restriction of local actions, depending as it r^i-ino-i does on the venue, has not been removed : and the rule is so L J stringent that an action will not lie here on a covenant, which is transi- tory, and though that covenant -was to pay rent in London, if the land be in Ireland, and the burden of the covenant have come to the defend- ant as assignee of the lease, which is a local fact. It is said that the plaintiff's right then depends on privity of estate, and not on privity of contract, as it would have done if the original lessee had been defendant, in which case the action would have lain.fg) But what if the cause of action arose among savages, where there are no local courts? Would redress, though not to be had elsewhere, be refused against one who was domiciled, or owed allegiance, here ? Lord Mansfield would not have refused it, and perhaps this part of the doctrines he laid down in Mostyn V. Fabrigas,(r) has not been overruled. On the other hand, that restric- tion which depended on service within the realm has been removed for " causes of action which arose within the jurisdiction, and in respect of the breach of a contract made within the jurisdiction," whatever the nationality or domicile of the defendant, except he be a British subject residing in Scotland or Ireland ; and for all other transitory actions, if the defendant be resident within the jurisdiction; provided always he know of the writ, or wilfully elude process, (s) (o) Rafael v. Terelst, W. Blackstone, 1055, an action on a personal injury com- mitted in the dominions of an independent Indian sovereign. Mostyn v. Fabrigas, Cowp. 161, on an injury in a colony. (p) Doulson T. Matthews, 4 T. R. 503, overruling some expressions of Lord Mansfield in Cowp. 180, and reinstating the authority of Skinner v. East India Company, cited in Cowp. 161. It will farther be observed that, as to the arbitra- riness of the venue, I speak of the principle. There are certain rules about changing it, both in local and transitory actions, which do not interfere with its reaction here described on the competence. (q) Barker v. Damer, Carthew, 182 ; Way v. Tally, 2 Salk. 651; 6 Mod. 194. (r) Cowp. 180, 181, (s) St. 15 & 16 Vict. c. 76, s. 2, IT, 18, 19. 78 WESTLAKB ON PRIVATE INTERNATIONAL LAW. 122. This jurisdiction, when once it has attached on a foreigner by the commencement of a suit against him in this country, is strictly en- forced by retaining hijn here. For the statute 1 & 2 Vict. c. 110, which r*i ft7i ^■I'olis'isd arrest on *mesne process in general, still permitted it, L J by sect. 3, in case of there being " probable cause for believing that a defendant is about to quit England," the cause of action amount- ing to £20 or upwards. Under this a defendant will be arrested and held to bail, if it appear likely that he will not otherwise " be forth- coming in order to be taken into execution," supposing judgment to go against him :(i) notwithstanding that he may be only returning, after a temporary sojourn here, to his domicile out of the jurisdiction, and that the cause of action also arose abroad ;(«) unless he have been entrapped into England by the fraud of the plaintiff, (a:) 123. The personal authority of the court of chancery was originally founded on service of the subpcena, now replaced by that of the bill, within the jurisdiction, for which purpose the affidavit of service must show where it was made,(y) and attachment will not issue for non-appear- ance on service made abroad, even though the defendant afterwards come within the jurisdiction, (z) though in one such case it was granted be- cause the defendant's solicitor had acknowledged the service and pro- mised appearance. (a) Also the service was always required to be per- sonal, unless made at the defendant's dwelling-house, the original process being there produced to some one whose duty it would be to communi- cate it to the defendant ; but such dwelling-house need not be his domi- cile strictly so called, nor need the defendant, when service is made, be r*10Sn ^it^®'^ ^domiciled or actually present within the jurisdiction. (6) L J Hence the justiciables of the court were all persons casually within its territory,(c) and those who might happen to have dwelling- houses, though not necessarily domiciles there ; while those domiciled in the jurisdiction, but not having a dwelling-house in it, as might easily happen to one who had quitted this country without establishing himself elsewhere, or who was at the moment travelling, and, while at home lived in lodgings, were not justiciable. 124. Nothing has been done to restrain the wide extent which this gives the process in some directions, but much has been done to widen the narrow extent it had in others. The statute 5 Geo. 2, c. 25, esta- blished a process against a defendant in any suit in equity who might be believed on just ground to be gone out of the realm, or otherwise ab- (t) Larchin v. Willan, 4 M. & W. 351, 353. As to what prospect of a speedy return will prevent the arrest, see Atkinson v. Blake, 1 Dowl. N. S. 849, and Hitchcock V. Hunter, 10 L. J., N. S., Q. B. 87. (li) Lamond v. Eiffe, 3 Gale & DaT. 256, 12 L. J., N. S., Q. B. 12. (x) Stein t. Valkenhiiysen, 27 L. J., N. S., Q. B. 236. [y) Davis v. Hole, 1 Y. & C, Ch. 440. (z) Fernandez v. Corbin, 2 Sim. 544; Hackwood v. Lockerby, 3 W. R. 440. {a] Nickel v. Gwyn, 1 Sim. 389. (6) Davidson v. Hastings, 2 Keen, 509, 513. (c) So much so, that even a foreign wife, who has separate property, can be restrained from leaving England to rejoin her husband abroad, until she gives security to abide the event of the suit : Moore v. Meyuell, Dick. 30 • Panuell v Tayler, T. & R. 96, 103. JURISDICTION ON OBLIGATIONS. 79 sconding, in order to avoid service ; and it is not confined to parties domiciled, or even having dwelling-houses, or commonly residing, within the realm. The Slgt order of May, 1845, in pari materia, is limited to persons who have been within the jurisdiction at some time not more than two years before process is issued. And the statutes 2 & 3 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82, enabled equitable process in suits respecting land, or any charge, lien, judgment or incumbrance thereon, or concerning any government or other public stocks or shares to be personally((i) served, by direction of the court, in such part of the United Kingdom, or the Isle of Man, as the defendant should be then " residing" in : and, with regard to defendants in such suits not residing within the United ^Kingdom, empowered the court to direct personal ser- |-j|;inQ-i vice(e) in such manner as it should specify, or, if the court L J should think fit, service on " the receiver, steward, or other person receiving or remitting the rents of the lands or premises, if any, in the suit mentioned." 125. After these provisions, which rested fairly on the ground of ju- risdiction over the subject of suit, the statutes 3 & 4 Vict. c. 94, and 4 & 5 Vict. c. 52, empowered the court of chancery to alter " the forms and mode of proceeding in" itj and among the orders made under this authority is found the 33d of May, 1845, by which the court may in any suit direct personal service to be effected anywhere. The practice under this order may be seen detailed in Smith's Chancery Practice,(y") and, being a matter of municipal law, need not be gone into here. Only it must be remarked that, though the exercise of the power thus taken is discretionary, some very large principles have been laid down as to the use of that discretion. " The material question," it has been said, " in judicial proceedings, is whether the defendant has due notice of the pro- ceedings, so that he may be enabled to come in and make his defence, and not whether he receives that notice at Boulogne or Dover. Although it does not appear why the bill was not filed in Ireland," where the de- fendant resided, and service was ordered, " there is no ground to suppose that the defendant is in a worse position by having it filed here."(§') The last words can only mean that it vias possible for the defendant to come over to England and watch the cause, and produce his proofs here : it is another question whether it was equally convenient for him to do so, and whether he ought to have been obliged to do so, in *a ^^^ , „., matter concerning dealings which do not appear from the report L J to have had their seat in England. 126. " The ordinary practice of courts of equity in England," said Lord Redesdale, " when one party is out of the jurisdiction and other parties within it, is to charge the fact in the bill that such a person is out of the jurisdiction, and then the court proceeds against the other parties notwithstanding he is not before it. It cannot proceed to com- pel him to do any act, but it can proceed against the other parties, and, {d) If the defendant secreted himself to avoid service, the court might, by sect. 2, of the second statute, order substituted service. [e) See note (d), p. 108. (/) pp. 249, 255, of the sixth edition. (g) Whitmore v. Eyan, 4 Hare, 612, 617, 618. 80 WESTLAKB ON PRIVATE INTEENATIONAL LAW. if the disposition of the property is in the power of the other parties, the court may act upon it."(A) The rights of the absent party are always reserved, but, as his interest may nevertheless be practically affected, the allegation of his being out of the jurisdiction will not be received without proof,(t) even though its truthbe admitted by the parties who appear.(y) 127. The jurisdiction of chancery however is not wholly based on ob- ligation, even in the widest sense. It has a power of ordering, inde- pendent of any special equity affecting the parties through their own acts; and it may probably be laid down as a principle, as it is certainly demanded by the very nature of sovereignty, that this power will not be exercised as to persons domiciled abroad, and as to their conduct abroad, even though process have been served upon them here. Thus a foreign creditor cannot be restrained from suing in his own country, notwith- standing a decree for administration here of which he might take the benefit. (A) There are also certain special restrictions on the jurisdiction r*im ■with regard to the *subject-matter : as that discovery will not L -I be granted in aid of the defence to a suit in a foreign court.(?) 128. The jurisdiction in personam over corporations presents some difficult questions, which have recently occupied the court of chancery. Many such bodies, as municipalities and hospitals, are clearly connected with specific spots : in the case of others, as railway companies, the ope- rations of which may be equally connected with spots in different juris- dictions, it is usual on the continent to fix their domicile for jurisdiction in their statutes ; " and if," says Savigny, " this has been neglected, the judge must seek to reason out their centre of operations by methods of art."(m) Now this is entirely satisfactory for litigation internal to the body, which it would be unreasonable to allow in any casual jurisdic- tion determined by a member, who yet must have joined it with notice of its nature : indeed, the records of the company being kept at its princi- pal seat, a litigation relating to them must in general be ineffectual else- where, (n) But what if the litigation be external, as on an obligation contracted by the corporation in the course of its dealing, particularly if its statutes have not fixed its jurisdiction, for of such a provision those who deal with it might be taken to have notice ? Or what if the court be called on to exercise its authority independently of any special equity to which the body has made itself liable ? 129. The last case arose in Maclaren v. Carron Company, where it was sought to restrain a Scotch manufacturing company from taking proceedings in Scotland as creditors of an estate, after an English decree {h) Smith v. Hibernian Mine Company, 1 Scho. & L. 238, 240. (i) Dibbs v. Goren, 1 Beav. 457; Hughes v. Eades, 1 Hare, 486 ; Moodie t. Ban- nister, 1 Drew. 514, 520. (/) Egginton v. Burton, 1 Hare, 488, note. [k) Carron Company v. Maclaren, 5 H. of L. 416, 441. (I) Bent V. Young, 9 Sim. 180, commenting on Crowe v. Del Eio, p. 185, note, and on a supposed opinion of Lord Redesdale to the contrary. (m) Syst. d. heut Rom. Rechts, v. 8, p. 66. {n) Sudlow T. Dutch Rhenish Railway Co., 21 Beav. 43. Lewis v. Baldwin, 11 Beav. 153, was so peculiar a case that it cannot be said to be inconsistent with the principle. JURISDICTION ON OBLIGATIONS. 81 for ^administering it had been made in a suit to wliich the com- -^^^„^ pany had not been a party.(o) The case was considered at the L J Rolls without reference to domicile properly so called, but to the question whether the agency, which the defendants had in England for selling their goods, was a dwelling-house of their body for the purpose of serv- ing process under our technical rules mentioned above in Art. 123 :(p) this being decided in the affirmative, the injunction was further sustained upon the merits, which were treated as between acknowledged subjects of the jurisdiction. But, on appeal, the questions of jurisdiction and domicile were held to arise upon the merits, on the ground noticed above in Art. 127. It was absolutely necessary to fix a centre of the company's existence, in order to ascertain whether it was subject to the general au- thority of the court. Now, notwithstanding that, on universal principles, the company might have furnished against itself a forum here, for the contracts of sale made through its English agency — for this is clearly the case of IV. and not of V. in Art. 105 — ^yet such forum could not be carried beyond the purposes of the agency which created it, and the general subjection which for an individual is founded on domicile was rightly held to exist for the defendants in Scotland alone. 130. It is sufficiently apparent that by the rules of jurisdiction we have been considering, allowing ip many cases a wide liberty as to the forum, and, besides, not the subject of universal or even general agreement, suits may often be brought in different countries for the same matter, which each of the respective forums may think itself entitled to entertain. Must then all these suits go forward together, or may any of the tribunals restrain by injunction the parties before it from proceeding elsewhere, or make their abandonment of the foreign proceedings, or their submission *to its own order in conducting them, a condition of their re- -^^^.^ ceiving any benefit from its own process ? To answer this, let "- -1 us suppose first that none of the suits has yet proceeded to sentence : it would then seem that any forum, which under the circumstances had the means of doing complete justice, might reasonably interfere to stop or prevent suits in forums where complete justice could not be done. There is no room for the objection that authority would thus be assumed over an independent jurisdiction, for it is not the foreign judges whom the injunction would attempt to restrain, but the parties who ex hypo- thesiare, or are considered by the court to be, its own justiciables.(g) Accordingly our chancery habitually grants injunctions against proceed- ings pending abroad, without waiting for the matters in question to be settled by its own decree, if and so far as it sees that it will itself be better able to settle them. Thus, in Bushby v. Munday, the reason given was that " this is a case which must be fully investigated and finally decided here," and an exception was made of that part of the Scotch proceedings which sought relief against Scotch land, the plaintiff in England being put on terms to submit to such steps in Scotland as would secure his lien on it to the defendant, in case he should succeed in establishing here any demand on the bond in question. (r) In this o) See above, Art. 55. (?) 16 Beav. 287. q) As to this, see Art. 12T. (r) 5 Madd. 297, 309. ~JANUAET, 1859.— 6 82 WESTLAKB ON PRIVATE INTERNATIONAL LAW. case the Hen oa the Scotch land would have been obtained only through judgment in a personal action, but where the foreign land itself is the subject of suit, still, if circumstances make it on the whole better that the determination should take place here, the defendants will be re- strained from prosecuting the proceedings abroad, the plaintiffs under- taking to submit to and carry into effect any order which our court may r*1 1 4-1 *^ereafter make with regard *to those proceedings : that is, the L J determination will be had here, the foreign suit being kept on foot as a means of giving it effect against property which the English tribunal could not touch. This was done in Beckford v. Kemble,(s) where foreclosure in Jamaica of land there was restrained on the ground that a decree leading to, though not for redemption, had been made here before the bill was filed in the West Indies ; and in Bunbury v. Bun- bury,^;) where both real property in Demeraraand personal property were in question, this being the proper forum for the latter, and the title to both depending to some extent on the same questions. 131. Nor, again, is it necessary that a better determination should be obtainable here than in the country of the foreign suit. If the court in which that suit is pending have powers insufficient to do complete jus- tice, the injunction will issue, notwithstanding that in the same foreign country another court may exist having similar powers and opportunities with our own chancery Ym) And if a decree has already been pronounced here, or is pronounced at the same time that the injunction against the foreign proceedings is granted, then there is reason a fortiori for pre- venting the continuance of another litigation on a matter already provided for. (a;) 3. Extraterritoriality. [*115] 132. We have hitherto considered only actions in personam against private citizens or bodies. We have now to *consider at once certain exceptions to the above rules, which have to be made in the case of diplomatists, and the extent to which the rules may apply against sovereign persons or bodies. Tbese matters are grouped together under the name of extraterritoriality, Uxterritorialiti,') because they were treated on the principle of a fiction, by which the residences of ambassa- dors, and those which sovereigns might occupy while abroad, were treated as forming part of their own territory, and not of that in which they ac- tually lay. So far was this fiction carried that the ambassador's resi- dence formerly furnished in most countries an asylum from justice, and large franchises were enjoyed even by the quarter of the city in which it stood : but these privileges have been generally restrained, whence any exception which extraterritoriality may cause to rules either of law or (s) 1 S. & St. *l. This case goes to the verge of the principle. Nothing but the mortgage was in question, and the original bill in the situs was prior to the origi- nal bill here, the suit restrained being a supplemental one. (t) 1 Beav. 318. (m) Portarlington v. Soulby, 3 My. & Ke. 104. ' (x) Wharton v. May, 5 Ves. 27, 11; Harrison v. Gurney, 2 Jac. & W. 563; Beauchamp v. Huntley, Clarke v. Ormonde, Jac. 546. JURISDICTION ON OBLIGATIONS. 83 of jurisdiction must rest on its own footing, and cannot be satisfactorily deduced from a fiction now far too wide to represent the actual facts, although the term may be retained for conveniency of classification. Moreover, the privileges in question were never so largely allowed in England as in some countries, whence also foreign rules on the subject can be the less used here for argument by analogy. 133. To take then the simple point of jurisdiction on obligations, we should have to say, from the continental point of view, that the forum rei (if any) of any person within the exception of extraterritoriality is that of his own country, for, as we have seen in Art. 47, ambassadors re- tain their home domicile, while sovereigns cannot be personally subject to foreign powers : and that for such persons there is no forum, rei gestce. From the English point of view, the result will now be the same, inas- much as such persons in England are not amenable here, while our writ at common law might easily be served, and the court of chancery would no doubt, in the exercise *of its discretion, order service of its j-^, -. „-, process abroad, in a proper case, on a British ambassador resi- L -I dent at the court to which he was accredited. From either point of view, the persons, natural or juristic, within the exception are independent governments; those sovereign persons in foreign states who for public international purposes are identified with their respective governments, though their power at home may not be unlimited ; and the diplomatic servants who, being foreigners, represent their governments abroad. The privilege also extends to the families and suites of ambassadors, but so that as to these it is that of the ambassador,^!/) and may be waived by him for those to whom he would else communicate it,(2) while for him- self he cannot waive it, it being as to him the privilege of his govern- ment.(a) In England these general propositions would receive their interpretation from the statute 7 Anne, c. 12, which, on the occasion of the arrest of the Russian ambassador, declared the persons, goods, and chattels of ambassadors and other public ministers of foreign princes or states, and of their domestics and domestic servants, to be free from pro- cess :f6) also that no merchant or trader within the bankruptcy laws could take any such benefit from the service of such a functionary, (c) 134. The reason of these exemptions is not that a case cannot arise in which, on strict principles of law, parties *deemed extraterri- i-mci 1 7-1 torial would be amenable, for even a government may by its L J agents commit an injury within the jurisdiction ; nor that civil process against them would necessarily be without efiect, for even a government (y) So that, if the ambassador do not claim it for the defendant, the domesti- city, (statute 7 Anne, c. 12, ». 3,) and bona fides of the service will be very strictly considered : Fisher v. Begrez, 2 C. & M. 240. See also Heathfiejd v. Chilton, 4 Burr. 2015. (2) By French court of cassation, in Foelix, 3rd edit., v. 1, p. 392. (a) Vattel, 1. 4, s. 111. (A) Sect. 3. Bynkershoek, (de Foro Leg., c. 4,) denies that the goods and chattels of a foreign government are protected from process, but Huber, Foelix, and the uniform tenor of modern decisions, are against him. See the decision of the court of cassation, that there can be no process of garnishment [saisie-arrit) against the French debtor of a foreign government: Dalloz, 1849, 1, 1. (c) Sect. 5. 84 WESTLAKB ON PRIVATE INTERNATIONAL LAW. might have property within the jurisdiction capable of being reached by the sentence ; but to avoid the danger of provoking war by wounding the dignity of a foreign state. Also ambassadors ought not to be impeded by private suits, which might moreover be got up by the governments with which they resided, from transacting the public business entrusted to them. So far is this carried that Bynkershoek considered that a sove- reign who should personally commit licentious and criminal acts against individuals, in a foreign land where he had been received as a friend, though amenable to justice on principle, ought rather to be sent out of the country, as is done in the case of ambassadors similarly delinquent, or even punished by popular tumult rather than judicially. ((^) 135. But a foreign sovereign, and a fortiori an ambassador, may sue here, since jurisdiction, being the legitimate employment of force, de- pends only on the person against whom it is exercised. (e) Only the government which so sues must be recognized by our own, as no corpo- rate existence oould else be attributed to a body of persons calling them- selves a government ; and such recognition, being notorious, need not be proved to the judge. (/) And such a plaintiff will be open to a principle applicable to all who sue where they would not otherwise be amenable, that, having sought equity, they have submitted themselves to do it : qui non cogitur in aliquo loco judicium pati, si ipse ibi agat, -^^^Q-. cogitur excipere actiones et ad eundem *judicem mitti.i^g'^ L J Hence, if suing in equity, the plaintiff will be liable to a cross- bill ;(7i) if at law, to a bill of discovery in equity ;(i) and, in any case, the court may put him on teims,(fc) and he will be exposed to process for the recovery of costs in which he may be condemned. fA For this reason, a foreign government can only sue " in the names of some public officers who are entitled to represent the interests of the state, and upon whom process can be served on the part of the defendants."(m) 136. And even in other cases than those of Art. 135, the exemp- tion from suit stated in Art. 133, must be understood only of really hostile proceedings, and not of those where, by the rules of pleading observed in the English court of chancery, it may be necessary to make some one a defendant either for his own advantage, or at least without threatening him with loss. Upon this I will give Lord Langdale's words : — " There have been cases in which, this court being called upon to distribute a fund in which some foreign sovereign or state may have had an interest, it has been thought expedient and proper, in order to a due distribution of the fund, to make such sovereign or state a party. The effect has been to make the suit perfect as to parties, but, as to the sovereign or state made a defendant in cases of that kind, the effect has {d) De Foro Legatorum, c. 3. (e) King of Spain v. Machado, 4 Buss. 225 ; HuIIet v. King of Spain, 1 Dow & Clark, 169. (/) City of Berne v. Bank of England, 9 Ves. ^i1. Iff) Paulus, in Dig. 5, 1, 22. (A) King of Spain v. Hullet, 1 CI. & F. 333. (») Rothschild t. Queen of Portugal, 3 Y. & C. 594. See also Queen of Por- tugal V. Glyn, V CI. & P. 466. (k) Hullet v. King of Spain, 1 D. & CI. 174. (I) Even if a new action be required to recover them : Foelix, n. 217. (m) Colombian Government v. Rothschild, 1 Sim. 94. JURISDICTION ON OBLIGATIONS. 85 not been to compel or attempt to compel such sovereign or state to come in and submit to judgment in the ordinary course, but to give the sove- reign an opportunity to come in to claim his right, or establish his in- terest in the subject-matter of the suit. Coming in to make his claim, he * would, by doing so, submit himself to the- jurisdiction of ps(c-|-in-] the court in that matter ; refusing to come in, he might perhaps L -^ be precluded from establishing any claim to the same interest in another form. So where a defendant in this country is called upon to account for some matter in respect of which he has acted as agent for a foreign sovereign, the suit would not be perfect as to parties unless the foreign sovereign were formally a defendant, and by making him a party an opportunity is afforded him of defending himself instead of leaving the defence to his agent, and he may come in if he pleases : in such a case, if he refuses to come in, he may perhaps be held bound by the decision against his agent.'Vra) 137. A more complicated case is that in which the foreign character entitling to the exemption is combined with subjection here. It has been decided that no suit can be maintained against a foreign sovereign who is also a British subject, for acts done in virtue of his authority as sovereign, notwithstanding that process may have been served upon him while exercising in this country his rights as such subject. To) But is such a person " liable to be sued in the courts of this country, in re- spect of any acts and transactions done by him, or in which he may have been engaged, as a British subject?"(p) The affirmative was held by Lord Langdale, and we may admit, as implied by Lord Brougham, " that, supposing a foreign sovereign, being also a naturalized subject in this country, had a landed estate in this country, and entered into any transactions respecting it, as a contract of sale or mortgage," then "a court of equity in this country might compel him^specifi- r^ipn-i cally to perform his contract."(g') For strict law would support L " J the jurisdiction, and we should probably think our dignity as much involved in maintaining as his in repelling it. 138. It is universally agreed that an ambassador appointed from among the subjects of the state in which he is accredited remains sub- ject to its jurisdiction in private matters, and, if any inconvenience is suffered thereby, the government which appointed him has but its own choice to blame. But here again the same distinction exists as in the case of the sovereign-subject. Such an ambassador is exempt from the jurisdiction in every thing which directly relates to his ministry :(r) and an opinion has been expressed by Lord Campbell, that a British subject who is neither a sovereign nor an ambassador is equally exempt from British jurisdiction, in respect of what he has done by the authority of a foreign government's instrument of state, for acting under which he has had the sanction of the sovereign of this kingdom. (s) (») In Duke of Brunswick v. King of Hanover, 6 Beav. 39. (o) S. C, 6 Beav. 1 ; 2 H. of L. 1. (p) S. C, 6 Beav. 51. (g) Duke of Brunswick v. King of Hanover, 2 H. of L. 24. (r) Vattel, I. 4, s. 112. '(s) In Duke of Brunswick v. King of Hanover, 2 H. of L. 26. The dictum re- 86 WESTLAKE ON PRIVATE INTERNATIONAL LAW. 139. The privileges of extraterritoriality do not extend to consuls, if not expressly secured to them by treaty, unless in any special case a diplomatic commission may be combined with their ordinary functions, which are only to protect the commercial interests of their countrymen. Indeed, the residence of a consul has such a character of continuance that it may even found a forum rei for the obligations contracted by him, though, as we have seen, it does not change his domicile for most _ .J... purposes. (<) And *hence the consuls who have been placed by L J treaty on the footing of those of the most favored nation, of which number are the British oonsuls,(M) enjoy in France an exemption from arrest on obligations not contracted by them in the way of com- merce,(x) an exemption which implies of itself that they may he sued there on their general obligations. (y) But in Mountfiorence v. Skip- with, the court of cassation held a foreign consul not justiciable in France, at the suit of another foreigner, and on a non-mercantile obli- gation. (z) [*122] *C HAP TEE VI. PRINCIPLES OP THE INTERNATIONAL OBLIGATION OF LAW. 1. Theories of the Reality and I 2. Principles of the Law Common Personality of Statntes, | to the Parties, and of the and of the Comity of Na- Law of the Defendant, . 131 tions, .... 122 j 3. Various Modern Systems, . 147 140. At this point, when we are about to commence a detailed inves- tigation of the international law of obligations, as based on the causes for which a definite individual may be subject in a definite matter to the commands of a particular sovereign, it will be well to pause, in order to consider some of the theories which have been entertained on the mutual limits of the authority of laws. 1. Theories of the Reality and Personality of Statutes, and of the Comity of Nations. 141. The term "statutes," which is classical in this subject, was ori- ginally used of the by-laws of the imperial and other free towns, in Italy and elsewhere, and was thence extended to the unwritten customs and fers to what had been done by the Dnke of Cambridge, but the only possible ge- neralization of it appears to be that given in the text. (t) Above, Art. 47. (m) Treaty of January 15th, 1787. (x) The type-treaty is the convention concluded with Spain on March 13th, 1769. (y) Poelix, nos. 218,^221. (z) Merlin, R^p., Btranger, § XL I have more particularly mentioned these details, on account of the short and indistinct notice of the status of consuls in France, cited in Bremer v. Freeman, 1 Deane, 204. PRINCIPLES OP INTERNATIONAL OBLIGATION. 87 written coutumiers of the feudal jurisdictions. But the common law of all those towns and countries was that of Rome, to which therefore the statutes were exceptions, the existence of which occasioned some diffi- culty, because in, the empire legislation was confessed to be an exclu- sively imperial prerogative, while in France there had been for ^^^„r,-. *many centuries a total cessation of all exercise of legislative L J power. To account for the statutes, two methods were therefore entered on. One, more common in Italy and in early times, was evidently in- duced by the legislation which, however contrary to theory, actually took place in the cities. It consisted in admitting the statutes to have the proper force of law, but only through a resort to some curious argumen- tative shifts. Thus, inasmuch as the Venetians made their wills with only two witnesses, while the Eoman law required seven, one doctor trusted that they had received some forgotten dispensation from the successors of Justinian ; while another argued that since by the Roman law a parent could with two witnesses divide his property between his children, a city, which was the parent of her subjects, might authorize them to distribute their substance with no more elaborate formality. (a) When it is remembered that Venice, at the time these apologies were made for her, did not acknowledge the authority of the emperor, it will be understood how severely the difficulty of regarding the statutes as laws must have been felt in the imperial towns, such as Florence or Milan. The other method, more common in the feudal districts, and appropriate to their condition, seems to have denied the force of law to the statutes, and regarded them as what in fact in those districts they purported to be, customs which men chose to follow there. Hence their authority was not generally their own, but derived from the intention of the parties, to which a clue was affi)rded when the circumstances made it probable that they meant to conform to any particular custom. Of the effect which this had in different directions abundant instances may be furnished from Dumoulin. Thus in Art. 71, we have seen that, according to him, a cus- tom, the nature of which is *such that it cannot operate through r^-i 04-1 the will of the parties, must be construed very strictly, as in de- <- J rogation of the common law :(6) in Art. Ill, that the custom to which the parties were supposed freely to conform was not always that which those who gave to customs the force of law considered to govern the transaction : and again, where Dumoulin perceived in the custom the choice of the parties, he extended its effect, through the mediation of that choice, to matters which by its native vigor it could not reach, as in his opinion that the custom of the matrimonial domicile regulated, in the absence of express agreement, even the foreign immovables of the spouses, (c) In precise accordance with this appears to have been the meaning of Henry Boich., when he said that a personal custom was one per quam Jus nascitur ex contractu.(^d'j 142. Such were the statutes, in the conceptions current during and at (a) Bartolus, ad Cod. 1, 1, 1. (6) An instance of this will be given from Bartolus also in the next paragraph. (c) See particularly Dumoulin's 53rd consilium, v. 2, p. 963, of the 1581 edition. [d) Apud D'Arg., Comm. in Brit. Leg., Art. 218, gl. 6. u. 14. 88 WESTLAKB ON PRIVATE INTERNATIONAL LAW. the close of the middle ages : and at the same time an attempt was made to classify them hy their contents, as disposing of persons or things, of which we see a rough sketch in the following crude rules of Bartolus : — Mihi videtur quod verba statutiseu consuetudinissunt dilig enter intiien da. Aut ilia disponunt circares, ut per Ticec verba, "bona decedenlis veniant in primogenitum ;" el tunc de omnibus bonis Judicabo secundum usum et statutum ubi res sunt situates, quia jus affi,cit res ipsas, sive possideantur a cive sive ab advena. Aut verba statuti seu consuetudinis disponunt circa personas, ut per hcec verba, " primogenitus succedat j" et tunc, aut ilh talis decedens non erat de Anglia, sed ibi habuit possessiones, et tunc tale statutum ad eum, et ejus filios non porrigitur, quia dispositio circa r*l9FiT *P^'>'sonas non porrigitur ad forenses ; aut talis decedens erat L "' -I Anglicus, et tunc filius primogenitus succederet in bonis quce sunt in Anglid, et in aliis succederet de jure communi.[e) The last clause of this citation, in which a statute asserted to be personal is restrained in operation apparently on the ground of its being an exception to the com- mon law, reminds us of the doctrine of Dumoulin, in which, as we have seen, the personal statute is restrained by the double limitation of affect- ing only its own subjects, and with regard to things within its own territory. 143. Thus stood the matter till late in the sixteenth century. A statute which had persons for its principal objects was personal, and ap- plied to all who were domiciled within its limits : those which had things for their principal object were real, and applied to property situate within their limits. In distinguishing these, the foolish attention of Bartolus to the words of statutes was generally repudiated, and provisions as to the status of persons fell into the former class, but the chief motive of a law was so vague a criterion that the latter class remained in truth totally undefined, but with a general tendency to confine its extent. When however the states of modern Europe were establishing a continually in- creasing separation from a common imperial system, the intrinsic au- thority of law was more boldly claimed for the customs, and with the necessary effect of restraining their operation to narrower limits. This we have seen, in Art. 90, in the language of the Breton D'Argentre, who also vehemently opposed Dumoulin's doctrine of the tacit matri- monial contract.(/) His position naturally led him to be forward in this r*1261 ^o^^™^"^*) since the independence of customs was in the spirit *of L -I that local independence a certain amount of which Brittany was struggling to maintain. In the same author we meet with the third, or mixed, class of statutes, which afterwards grew so vastly in importance, but in which he states that the real character predominates, as in the prohibition of donations and bequests between man and wife, so far as it applies to land, and in statutes which make the rights in a suit for par- tition depend on the noble or villein status of the parties ;(gr) and with fe) Ad Cod. 1, 1, 1. (/) Ubifeupra, n. 33, 34. To Boich's definition of a personal statute, partly cited above, he subjoins, addo ego, et si ez statuti dispositione et potesiaie obligatia nectitur in personam. (g) Ubi supra, n. 5, &c. PRINCIPLES OP INTERNATIONAL OBLIGATION. 89 tte distinction between a status affecting the person universally, as in- fatnatio, and an inability imposed with regard to some special act on a real subject, which last is not to be judged by the law of the domicile. (A) 144. It was not long after this that a still more powerful impetus was given in the same direction, through the elaboration by Grotius of his theory of territorial sovereignty, which seemed at first sight to strike at the root of all extraterritorial application of personal or mixed statutes. But as it was quite impossible that this could be suffered, jurists were led to inquire how the adoption in any case of a foreign law could be re- conciled with the plenary of authority of sovereigns within their respec- tive geographical limits ; and the earliest formal answer is that of Huber, expressing the doctrine of an international comity in three maxims, which have become classical. I. Leges cujusque imperii vim habent intra terminos ejusdem reipuh- licce, omnesque ei subjectos ohligant, nee ultra. II. Pro subjectis imperio hahendi sunt omnes qui intra terminos ejusdem reperiuntur, sive in per- petuum sive ad tempus ibi commorentur. III. Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita teneant ubique suam vim, quatenus nihil juri aut potestati *alte- ^-^^ „„, rius imperantis ejusque civium prcejudicetur.(i) But the doc- ■- J trine that foreign laws are only to be admitted by a comity, limited by the rights and authority of the admitting state and its members, tells us indeed nothing, since it is just these rights and this authority of which the extent is in question. Thus, can one who is of age in the country of his domicile devise land situate where he would still be a minor ? Huber answets, Yes :(7c\ a decision which many in England and America would reject, as derogatory to the territorial authority of the sovereign of the land. Nay, more : by referring to the rights of the indiyidual citizens of the forum, the doctrine opens the door to very unjuridical reasonings founded on their supposed interests. Thus, relying on the principle that mobilia sequuntur personam, you mortgage a chattel to me, without delivery, but in a country where delivery is not necessary to complete my title : a claimant under you by a posterior title anticipates me in taking possession, at a place where that is necessary to the title : can I establish my priority by a suit in the latter place ? No, says Huber : because the right acquired in the country of the forum, by the occupation of the possession, cannot be taken away by a foreign law.(A Now he does not mean that a claim resting on foreign law can never com- pete with one resting on the lex fori, else in the former case the devisee could not compete with the minor's heir ab intestato : and, not meaning this, it seems to be reasoning in a circle to set up the posterior legal claim, which, if the first mortgage was valid, cannot be to more than the right which remained in the owner. Yet I believe that legal claim was what Huber meant, and that the supreme court of Louisiana misunder- stood him, *when it came to the same decision expressly on the ground of the interest of the citizens of the forum, in consider- (A) Ubi supra, n. 16, &c. (i) De Confl. Leg., s. 2. {&) Ibid. s. 15. {1} Ibid. s. 11. [*128] 90 WESTLAKE ON PRIVATE INTERNATIONAL LAW. ing which it fancied that he had led the way.(OT) It will complete the picture of how little is to be expected from Huber's third maxim, wheD I add that Story, who adopts it, appears to dissent from this result which the Louisiana judges have extracted from it.(m) 145. In truth however the free reception of a foreign law does not in- fringe the principle of territorial sovereignty, since it is simply by the authority of the territorial sovereign that it is received. His code may not lay down the precise cases for such reception, but he must be taken as cognizant of that general understanding, by which his own and all other judges enforce foreign laws in accordance with the principles of private international jurisprudence. It is a question of interpreting his meaning, and the principles of such interpretation must be sought beyond the text to be interpreted, in that science of law to the ideas of which no legislator intends to run counter. It is admitted on all hands that if the municipal law of any country contain provisions on cases of collision, they must be followed by its judges, however opposed to general theory : a reservation which clearly shows that it is only by the tacit approbation of the local legislator that the theory is ever adopted. Since tien the principle of independent sovereignty did not destroy this branch of juris- prudence, and that of comity led to no clear results of its own merely smoothing the way for those which might be otherwise obtained, men still tried to make what they could out of the old distinctions of real, personal and mixed statutes. Now many questions arose in working them out. r*i9Qi ^'^^' ^ii'st) were those statutes alone personal which defined *the L "^ -1 status of the person, or also those which defined the juristic conse- quences of that status, the rights and limitations arising out of it ? For example, a statute which fixes the age of majority is certainly personal : but is one which fixes the incapacities of a minor also personal ? Her- tius, as we saw in Art. 70, took the negative side, and he has been fol- lowed in modern times by Meier, Mittermaier, and Wachter: but the majority of authors have always repudiated the distinction. " If we look closely at the thing," says Savigny, "we find no other difference than that many personal conditions are denoted by particular names, and others are not A major we name him who possesses the fullest capa- city to act which can be reached by age ; it is thus a name for certain juristic effects, for the denial of previous limitations of capacity. In the same way we name a minor him who does not yet possess that full capa- city, for the denial of which condition it is a name. Now when a law establishes certain grades of capacity even among minors, without using particular names for them, no ground can be seen on which these grades of capacity should not, as well as the commencement of full capacity, be judged according to the law of the domicile.'Yo) 147. Secondly, the mixed statutes were frequently defined as relating to acts. ;iS'i lex actui formam dat, inspiciendus est locus actus, says Hertius, putting this on a level with quando lex in personam dirigitur, (m) Olivier v. Townes, 2 Martin, N. S. 93. (n) Sect. 390. (o) Syst. d. heut. Rom. Rechts, v. 8, p. 136. PBINCIPLES OF INTERNATIONAL OBLIGATION. 91 and si lex directo rei imponitur, as the third member of the classifica- tion. (p) Now did this class comprise .those which related to the sub- stance of the act, as Hertius, notwithstanding his expression actui forTnam c?a<, with the majority, understood; or was it limited te the external ceremonies of acting, as John Voet thought ? For the former opinion spoke the ^difficulty of saying to which of the first two rjis-ion-i classes the statutes relating to the substance of the act belonged. L J Thirdly, in one ^oint of view the mixed class, with its whole conse- quence of the lex loci actus aut contractus, threatened to vanish, since there is hardly any law which may not be argued to relate principally either to persons or to things. But then, mixed statutes being also defined as those which concern at once both persons and property, the third division arose again, and with a prodigious development, since most laws relate to persons in their conduct about things. 148. I pass over the distinctions of pure personal statutes and per- sonal-real, and the subdivision of pure personal into personal-universal and personal-particular, as also various other questions, in order to point out wherein the weakness of this whole theory, which never even wore the appearance of leading to a general agreement in practical results,(2') appears to me to have lain. It considered laws in a manner entirely beside the only character in which they can originate rights, namely, as commands or prohibitions addressed to persons, and took them as ordering aiout persons and transactions. Now it makes little difference whether such order was imagined to have a sort of sacramental opera- tion, (as probably was, though vaguely, the first notion,) making the minor a minor, or the land subject to primogeniture, all the world over, and for all intents and purposes; or whether it was held to operate extraterritorially through comity. The cases in which a right is fairly entitled to extraterritorial consideration, are *those in which the p^.„..-. correlative duty was imposed by a sovereign who could lawfully L J command at the time; and no progress could be made towards a satisfac- tory enumeration of these cases by a method which did not go upon the authority to command or prohibit conduct, but to regulate a personal status, a piece of land, or the form of a transaction. 2. Principles of the Law Common to the Parties, and of the Law of the Defendant. 149. The distinction of real and personal statutes has been illustrated from continental authorities, because, though never totally unknown here, yet neither was it ever of much importance in English law : a cir- cumstance probably to be attributed to the fact that our juristic system (p) De Coll. Leg. Sect. 4, | 10. (q) So hopeless was it to ascertain the extent of a statute's application by re- ferring it to its class, that Paul Voet and Bouhier classify real and personal" sta- tutes by the extent in which they are applied, which reduces the whole system to a means of registering the rules practically received from motives of convenience: P. Voet, de Statutis, B. 4, c. 2, n. 5 ; Bouhier, Obs. sur la Ooutume de Bourgogne, C. 23, n. 59. 92 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. had already acquired a fixed character entirely unlike that of the conti- nent, before the period when that distinction attained its full develop- ment abroad. Hence also the current English decisions bore to a con- siderable extent the impress of that continental period which preceded D'Argentrg, and when, as we have seen, the mixed class of statutes was not well distinguished from the personal. Thus the fact of marriage, as one relating to status, would in the strict theory of statutes be referred to the law of the domicile, as the personal law: but it was always re- ferred in England to the lex loci contractus, not only for the form of the ceremony, but also for the capacity of the parties and the consent of parents. or guardians required, in accordance with a practice of the canonists which dates from the period when the lex loci actus was not yet well distinguished from the lex domicilii. How far this may have been altered by recent English decisions, we shall hereafter have to consider. Thus too it was always admitted in England that a movable r*1^9n succession was governed on *death by the law of the testator's L -1 or intestate's domicile, but without its clearly appearing whether this went on the lex loci actus, the domicile being the place where (in continental phraseology) the succession was opened, or on the lex domi- cilii combined with the maxim mobilia sequuntur personam. But the principles which are the subject of the present section, and which are especially operative when the natives of civilized countries meet and act either in regions where no law is established, or where, as in the Levant and in India, legal systems exist totally foreign to their habits and ideas, have, from the enterprise and colonizing activity of the English nation, received in our jurisprudence a consideration at least as full as any they have obtained elsewhere. 150. In a highly cultivated condition of society, many circumstances concur to familiarize men with the conception of law as springing essen- tially from enactment by sovereign authority. Interests are so compli- cated that thQ introduction of new rules is no longer freely entrusted to judicial decision, but demands the interference of the legislative power, whether that be vested in a monare]i or in a parliament. Also the exe- cution of all judgments is secured by the ubiquitous and regular force of the supreme executive, whence even those decisions of .which the ground cannot be directly referred to the legislature, are seen to derive their binding authority from the sovereign body in the state. But it may be safely said that legislation never commenced the juristic history of any people. In few instances is it even its earliest known phase, and, where the memory of previous stages has perished, we may be sure that the people whose genius for law permitted the introduction of a code cannot have previously lived without legal rules. The historical origin of law must always have been a national persuasion or con- science of that which is jurally right, that is, not only morally right, for P^.|nn-i *no people has aimed at the authoritative suppression of all L -J which is morally wrong, but also proper to be enforced by man on his fellows. This persuasion varies from people to people, with their apprehension of moral principles, the circumstances to which they have to apply those principles, and their more or less stringent views of the PRINCIPLES OF INTERNATIONAL OBLIGATION. 93 extent to which moral obligations ought to be enforced by men on each other. But, prior to legislation, no other warrant than this persuasion itself, such as it exists among any people at any time, can be sought or found for its own enforcement. The exposition of this common law is at first entrusted either to popular courts, or to judges and lawyers, who in such case are the depositaries of the national conscience in jural matters. It is even through them that important changes are first made, as in Taltarum's case, and in that practice of conveyancers which, contrary to the express words of the statute de donis, prevents the crea- tion of an estate tail by the word issue in a deed : both striking in- stances, since they show that the productive and alterative vigor of the common law long survived the commencement of legislation. But the age of legislation has fully arrived when changes are so contested that they can no longer be efiFected by a silent revolution of public conviction, when whole departments of social life arise of which the jurist class cannot be presumed to know the details, and the declining vigor of the common law becomes unequal to create those new institutions, as for example that of bankruptcy, which do not aim at mere justice between man and man, but deal comprehensively with extensive interests by way of disposition and mutual compromise. Correspondingly, the authority by which the law is executed is often in the earlier stages vested in special powers or bodies within the state, whose close connection with the people, or with sections of it having a distinct existence for jural purposes, cannot be mistaken. *Thus, when the sherifi' exe- p^., „ ,-, cuted the law declared by the freeholders in the county court in L -I which he had himself been chosen, or the officers of a trade that de- clared in the court of its guild which also elected them, the source of the law was not the less obviously the common conviction of a number of men forming a certain society. But the centralization of the execu- tive, no less than the substitution of prospective legislation for the development of law by judgment on foregone facts, conduces to give to law an external character. Now when rights are considered as pro- ceeding from an external enactment by sovereign authority, the neces- sity that in a very artificial state of society each such authority should have definite geographical limits assigned to its activity, leads to the conception of private rights as dependent on the law of the place where they originate, since at that place the local sovereign alone can issue the commands which are requisite to create them. But the idea which lies historically at the root of private rights, namely, that they are suf- ficiently created by a common conviction in any organized body of men of that which ought to be law, does not limit the application of a na- tional law by any considerations of place. The nomad tribe carries its institutions with it in its wanderings ; different laws may coexist on the same soil by the agglomeration of unmingled races, as happened in Europe with what are called the personal laws during the dark ages, and as is the case now with regard to the British and native laws in India ; and according to the same idea the mutual dealings of fellow-citizens in a foreign country, or concerning foreign things, may have their efi"ect 94 WESTLAKB ON PRIVATE INTERNATIONAL LAW. according to the common law of the parties, as well as though they acted' at and in relation to their home. 151. These principles are exemplified in the mutual dealings of chris- tians in Mahometan countries. Not only did the Turks never think of p:^1oc-] displacing the private jurisprudence *of the Greek empire in its L J application to the conquered people, but they have never claimed to subject the private aflFairs of christian foreigners within their states 'to laws so little applicable to them as those of the Koran, leaving them rather to the operation of those laws which, as expressing the common sentiments of the parties, are naturally of force in their mutual dealings. It is true that the immunities of christians in Turkey neither have nor could have rested solely on legal principles, for the enjoyment of their own laws could not have been guaranteed to them without freeing them from the ignorant and corrupt local administration of justice, a privilege which of course no foreign power could otherwise obtain for its subjects than by treaty. But the legal principles in question are presupposed in the- capitulations which have been made between Turkey and the chris- tian governments, for these merely give to the latter certain rights of jurisdiction over their subjects, but express nothing as to the laws by which the jurisdictions so created shall proceed. Thus when a British ambassador or consul hears a cause between Englishmen in Turkey, he applies the English law to the case, because it is common to the parties as persons without reference to place, and not from any Turkish declara- tion or enactment respecting the law which shall bind foreigners on Turkish soil. In the same manner, after the cession of Gibraltar to Great Britain, but before British courts were established there, the Spaniards, French, Genoese, and Dutch had each their own consuls in the town, who, there being no regular Spanish tribunal in it, determined the diflFerenoes between the members of their respective nations, and, doubtless, according to their respective laws.(r) r*i 5fiT *1.52. Another example is furnished by the settlement of British L J subjects in a newly discovered country, where principle alone can decide what law is to be followed, during the silence of the sovereign who may enact it. It has been determined by the privy council on appeal from a colony, " that if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go they carry their laws with them, and therefore such new-found country is to be governed by the laws of England ; though, after such country is inhabited by the English, acts of parliament made in England without naming the foreign plantations will not bind them."(s) (r) Chalmers's Opinions, edit. 1858, p. 186. Had there been a Spanish court at Gibraltar, it would have continued to administer justice by Spanish law till the conquerors changed the law. (s) Anon., 2 P. W. '75. See also Blankard v. Galdy, Sal. 411. And even acts passed by the British parliament after the settlement, and neither including the particular plantation nor the plantations in general, might be, and sometimes were, tacitly adopted by the colonists, notwithstanding the existence and activity of a colonial legislature, of which acceptance usage was evidence: opinions of P. Yorke, Att.-Gen. (Lord Hardwicke,) alone, (1'729,) and with C. Wearg, Sol.-Gen., (in 1724 ;) Chalmers's Opinions, edit. 1858, pp. 208, 229. PRINCIPLES OF INTERNATIONAL OBLIGATION. 95 Upon this Blackstone remarks that " such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony, such for instance, as the general rules of inheritance and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and com- mercial people, the laws of police and revenue, (such especially as are enforced by penalties,) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other pro- visions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times and under what restrictions, must in case of dispute be decided in the first instance by their own provincial judicature, subject to the revision and *control of the king in council. («) And this is in substance r:),-,n'j-i true, but the distinction is not that vague one between what is L J more or less artificial, nor is it a mere discretion which the colonial judi- cature exercises. The settlers take with them all those laws which con- cern private rights between man and man, and the colonial tribunals must enforce them ; for such laws were common to the parties as fellow- citizens iff their homes, and they are presumed to have that common opinion of their equity which in the absence of enactment, and since some such laws are necessary, is both a sufficient, and the only possible, ground for their obligation : and this it is which is meant when these laws are said to accompany Englishmen as their birthright. They do not take with them the public department of law, even so far as its contents may affect property, because that department finds its expression in institutions such as those mentioned by Blackstone of revenue, police, and an estab- lished church, which from the nature of the case cannot exist in any society where they have not been instituted. It cannot even be asserted as a universal proposition, that they take with them those laws which lay down the definition and punishment of crime, (m) Nor again into a colony founded as here supposed can those laws be tacitly carried which, like those of bankruptcy, though essentially private, belong to the jus- titia attributrix and not to that expletrix, that is, dispose of interests, and not simply do -right between party and party on the ground of pro- perty or obligation. (x) Nor those which affect private rights from no motive of private *justice, but from a reference to supposed public i-^ki ogi benefit, as in the case of the statute of charitable uses. For tlie L J community formed by the settlers does not in any manner continue or represent the person of the mother-country, so that, even were the cir- cumstances the same, the same views of public policy should be attributed to it, in a way analogous to that in which the settlers continue the chain of the legal principles which are applicable to them as individuals. A leading case on this is that in which Sir W. Grant decided that the sta- rt) Comm. T. 1, p. 108. \u) Opinion of R. Henley, (Lord Northington,) and C. Yorke, Attorney and Soli- citor General, io 1757; Chalmers's Opiaions, edit. 1858, p. 209. (x) It is matter of notoriety that a simple charter of justice does not introduce the banlirupt laws into a colony, and supplemental charters have been granted to remedy the defect. 96 WESTLAKB ON PRIVATE INTERNATIONAL LAW. tutes of mortmain did not extend to the conquered island of Grenada, though passed previous to the conquest, and though the English law generally had been introduced into the island. (y) The case of a con- quered colony differs from that of a settled one, and turns upon the in- tention of the authority which introduced the English law, and intention which in the particular casej judging from the grounds of policy on which the English statute was based, Sir W. Grant held could not have extended to the introduction of that statute into the island. In a settled colony, it is only a question of what laws the people going there are subject to, not of the implied introduction by authority of any laws beyond those. But Sir W. Grant intimated that the decision would have been the same had Grenada been a settlement,(2) and so the case is taken by Lord Brougham, (a) 153. The establishment of the British in India presented originally a case similar to that of European merchants resident in factories in the Levant, and, as the latter have always been governed by their own laws, and not by the Turkish, so the former were from the first regulated by r*l ^Q"i ^^^ English laws, since there never could be a *thought of apply- L J ing to them either the Mahometan or the Gentoo jurisprudence which they found in the country. But afterwards, and indeed long since, although a titular sovereign reigned till lately at Delhi, and no official change was made in those relations which the company once had with him as the delegated administrators of certain of his provinces, yet it became the established doctrine of our lawyers that the British crown enjoyed the sovereignty of the soil in what was even then called British India. No exact account can be given of the mode in which, or even of the time when, this view began to be adopted : it appears to have re- sulted from a silent accommodation of theory to fact. (6) It had certainly not been adopted in 1773, when the act was passed which empowered the king to erect the Supreme Court at Calcutta, for the preamble of the thir- teenth section recites that sufficient provision had not been made for the administration of justice in such manner as the state of the company's pre- sidency at Fort William, in Bengal, would require, so long as the company sliould continue in possession thereof. {c\ The erection of the Supreme Court was therefore not an act of territorial sovereignty, still less the yet earlier erection of the mayors' courts at Calcutta and Madras ;(rf) and in their first administration of English law to British subjects in India, these tribunals must accordingly have proceeded on the same principles which have been already pointed out as governing the case of the Levant factories. I will therefore quote the provisions of the statute passed under this earlier state of things for the guidance of the Supreme Court of Calcutta, as being a legislative acknowledgment of the natural obliga- M Att.-Gen. t. Stewart, 2 Mer. 143. {t) lb. p. 159. (a) In Mayor of Lyons v. East India Company, 1 Moore, P. C. 273 ; 1 Moore, I. A. C. 2T1,., (b) Lord Brougham, in 1 Mo. P. 0. 275 ; 1 Mo. I. A. C. 274. (c) St. 14 Geo. 3, c. 63. (d) Bombay was British territory, acquired from Portugal on the occasion of Charles II. 's marriage with Catherine of Braganza. PRINCIPLES OF INTERNATIONAL OBLIGATION. 97 tion of laws as between persons, *when unaffected by the sove- j.^, .^-. reignty of th§ soil. " The inheritance and succession to lands, L J rents, and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans by the laws and usages of Mahomedans, and in the case of Gentus by the laws and usages of Gentus ; and, where only one of the parties shall be a Maho- medan or Gentu, by the laws and usages of the defendant : and in order that regard may be had to the civil and religious usages of the natives, the rights and authorities of fathers of families and masters of families, according as the same might have been exercised by the Gentii or Ma- homedan law, shall be reserved to them respectively within their families ; nor shall any acts done in consequence of the rule and law of caste re- specting the members of the said families only be held and adjudged a crime, although the same may nOt be held justifiable by the laws of Eng- land." (e) If we examine the details thus enumerated, the matters of contract and dealing between persons belonging both to the same law, and the authority of heads of families, fall clearly under the principle of the law common to the parties. The rule propounded on matters of contract and dealing between persons whose laws are different appertains to the principle of the law of the defendant, as that which his conscience at least cannot refuse, and to which the plaintiff submits himself by dealing with him and *instituting the suit. And a passage is r:|:n 4^-1-1 made from the one doctrine to the other by the rule of inheri- L J tance and succession, which may be either regarded as founded in the deceased's individual identification with his own law, in regard to the disposition of his property which he would desire, or in the circumstance that that would in the great majority of cases be the common law of the claimants. 154. Another point here essential to observe is, that in this stage of our occupation of India, in which all laws were personal and none founded in the sovereignty of the soil, there could be no territorial law of inheritance affecting the land as land. And accordingly the British in India were free to apply to the lands owned by them either the modes of transfer and rules of succession which prevail in England for realty, or those which we here use for personalty, either being equally personal to themselves, and, from our strange subdivision of the subjects of pro- perty, equally personal to them in respect of immovables. This freedom of choice was originally exercised by regarding land as a chattel, and as passed by instruments used for the conveyance of chattels, a view which is said to be still held at Madras :(/) and although in Bengal the lands (e) St. 21 Geo. 3, c. '70, ss. 17, 18. Thus the supreme court of Bombay cannot enforce restitution of conjugal rights between Parsees : Ardaseer Cursetjee v. Perozeboye, 6 Moore, Indian Appeal Cases, 348. On the same principles, the English law had been recognized as the measure of right between the English in India by the charter of 1661, which empowered the old company to judge by it persons belonging to or living under them in their factories ; the charter of 1683 had empowered the same company to erect judicatures which should proceed by the law merchant and equity: East India Company's Charters, pp. 75, 121. And so it was decided that British subjects carried their law of marriage with them to Madras : Lautour t. Teesdale, 8 Taun. 830. (/) 1 Moore, P. C. 247 ; 1 Moore, I. A. C. 246. January, 1859. — 7 98 WESTLAKE ON PRIVATE INTERNATIONAL LAW. of British proprietors came early to be treated as inheritable in the man- ner of an English fee-simple, yet the English conveyance by lease and release, and the exclusive devise of such lands by a will executed in ac- cordance with the English statute of frauds, though both adopted in Bengal, are expressly held not to have been necessary consequences of the mode of inheritance. (^) And if we regard all that was done with r*14-91 '^ssps^*' 'o '^I'i? whether at *Madras or in Bengal, not as the L "'-I selection by the British from among laws which had been per- sonal to them at home, but as the establishment of new laws personal to them there, as the members of a distinct community, including other Europeans besides British subjects, in the same mode in which the com- mon law of England itself was formed, we shall have in these facts a yet stronger instance of the way in which laws may become obligatory among a people without the aid of any sovereignty, other than that which in virtue of its common convictions the mass exercises over individuals. 155. When however it came to be held that the British monarch is sovereign of the soil of Bengal, by a change unaccompanied by any ex- press introduction of the English law, the case of the British in India became less analogous to that of the Levant factories than to that of settlers in a new country taken possession of for the British crown ; to a colony obtained by conquest there could be no resemblance, since that retains its own laws, with their territorial validity, until they are altered by the conquering power. It was'accordingly of importance to ascertain whether this caused any change in the laws concerning land, and that it did not do so was decided in The Mayor of Lyons v. The East India Company,(A) as well by the point there directly ruled, that the inca- pacity of aliens to hold English land does not extend to our Indian pos- sessions, as by the interpretation there given to Gardiner v. Fell,(!') by which it appears that not even the necessary conformity of a will of land in Bengal to the then English form would have resulted from our acqui- sition of the sovereignty of the soil. There can be no doubt that all this r-i^-ijo-i 'was correct in principle, since it is not by the mere fact *that L J two countries have a common sovereign that the laws of one con- cerning immovables are introduced into the other. It is only through the legislative power which it confers that the sovereignty of a country can be made to affect its laws ; and there had been no British legislation as to the law to be observed in India, besides that which I have already cited from the statute of the 21st of George the Third. Here therefore is the true distinction which, notwithstanding some analogy, exists be- tween British India and a colony formed by settlement. The European and native communities in the former already possessed common laws, concerning land as well as other things, previous to the establishment of our sovereignty, which therefore could not change them by any tacit operation. The colonists in the latter bring with them the English law, as " their birthright" our lawyers call 'it, to a virgin soil, but to which the territorial character of laws recognized by all old and advanced (g) Gardiner v. Fell, 1 Jac. & Wal. 22 ; and Lord Brougham in 1 Mo. P. C. 249 ; 1 Mo. L A. C. 248. (/i) 1 Moore, P. C. 175 ; 1 Moore, I. A. C. 175. (i) 1 Jac. &Wal. 22. PRINCIPLES OF INTERNATIONAL OBLIGATION. 99 couDtries is immediately assumed to apply, so that on that soil the law which is personal to its sovereigns becomes at once territorial. Thus the then English laws on the inheritance and transfer of real estate, as well as those of contract, would become territorial now in a newly occupied South Sea island, as they formerly did in our American plantations. 156. The principles of this section are however of rare application in christian and settled states, for in these the views of law on which they rest may be sunk without inconvenience in the conception of private rights as created by a territorial authority external to the conscience of the persons whom it binds. The latter conception indeed can only be- come the basis of a system of private international jurisprudence, on the supposition that none of the territorial laws which it considers differs so widely from the others of them, as to shock the conscience of any of the *nations to whose members the system may cause it to be r^i j i-i applied. In other words, the extraterritorial acceptance of L J rights founded on territorial laws can only exist as between countries which resemble each other in the leading characters of their civilization, and none of which departs in any considerable degree from the average standard of those characters. We could not, for instance, recognize po- lygamy in christian Europe or America, on the ground that the plural marriages were contracted in Turkey and by Turks. In this manner, the principle of the law of the parties marks as it were the limits of this department of legal science. It is when the conditions fail for applying its ordinary rules, from a contact with places where no law has yet been enacted, or with populations not within the jural community it supposes, that this principle, suppressed in general, emerges to supply, the defect with all the force which it possessed in the infancy of law. The follow- ing cases however still mark its occasional employment even in Christen- dom. (A;) 157. While the general law of this country provided but one ceremo- nial of marriage, and that of a christian character, the validity of mar- riages celebrated in England between British Jews was nevertheless tried by their own ritual observances.(Z) The marriage of English-born subjects, apparently also domiciled in England, celebrated at the Cape of Good Hope soon after its conquest from the Dutch, was held valid by English law, the conflict between that and the Dutch law being on the age at which the consent of parents or guardians would cease to be neces- sary :(m) the lex loci contractus being in the same case asserted, in op- position *to the lex domicilii, &s the true rule for such a conflict,(m) pi^c-i and the decision being grounded on the presumption that, the L J (k) The law of the defendant was the rule, in the system of personal laws which arose among the barbarians on the soil of the Roman empire. (I) Lindo T. Belisario, 1 Hagg. Cons. 216. (m) Ending v. Smith, 2 Hagg. Cops. 371. {n) Ruding v. Smith, 2 Hagg. Cons. pp. 390-392. Such was the avowed view of the court : at the same time, the intimation, in p. 389, that the decision might have been the same on the marriage in Holland of English persons not domiciled there, shows how much Lord Stowell was inclining towards the lex domicilii as the' rule ; a maxim which, in some of the reasons for it, is closely allied to the prin- ciple of the law common to the parties. 100 WBSTLAKE ON PRIVATE INTBENAT lONAL LAW. conquerors not having up to the date of the marriage sanctioned the con- tinuance of the Dutch law otherwise than by the capitulation in favor of the conquered, they could not mean it to be of force between themselves. British troops in hostile occupation of a foreign country, as also the Bri- tish who accompany them, carry their law of marriage with them :(o) and Lord Stowell thought it probable that they would do so also if in friendly occupation of a foreign country. (^) The privilege of marrying in an ambassador's chapel by the laws of his nation does not rest on the fiction of local extraterritoriality alone, but requires that at least one of the parties shall be of that nation. (g) Hither also must be referred the dicta occur- ring in several cases of contest between the assignees of an English bank- rupt and his English creditors who had obtained possession of his pro- perty by the judgments of foreign courts, from which it would appear that, on account of the common subjection of such parties to the law of this country, the assignees can sometimes in those cases recover under circumstances which might not give them a right against foreign credi- tors, (r) Similar questions have also been raised on the right of fellow- citizens to arrest each other, or seize each other's goods, in civil suits r*i 4.n *sbroad, if unable to do so at home, which is denied by Peckius,(s) L -1 but asserted by John Voet :(/) and on the operation of statutes of limitation on claims mooted between parties who were both subject to those statutes during the whole term of prescription. (m) 158. On the other hand, it has been decided that the British law cannot be invoked in cases of collision between British and foreign ships on the high seas, not only by the owners of the former as promoters of the suit,(a;) but not even against them as filling the character of defend- ants. (ji) Nor again, with regard to acts committed on the high seas, can the defendant invoke the protection of his own laws.(z) But there is in these cases the peculiarity that a general law maritime exists, to which the municipal law of any country is regarded as only introducing exceptions; so that, if such municipal law be not common to the parties, in which case it would certainly apply though the tort was committed beyond the territory, it is natural to fall back on the general rule rather (o) King V. Inhabitants of Brampton, 10 East, 282. (p) Burn v. Farrar, 2 Hagg. Cons. 369. (q) Pertreis v. Tondear, 1 Hagg. Cons. 136. (r) Hunter v. Potts, 4 T. R. 182, 194 ; Sill v. Worswick, 1 H. Bl. 665, 693 ; Phillips T. Hunter, 2 H. Bl. 402, 406. These cases will be more particularly con- sidered in their proper place. («) De Jure Sistendi, u. 8. (() Ad Pand. 1. 2, t. 4, n. 45. And this is the English doctrine : De la Vega v. Vianna, 1 Ba. & Ad. 284. But J. Voet admits that the plaintiff would make him- self liable in damages at home. (m) Story, s. 582, 582 b. An important topic, to which we shall have to re- turn : see Huber v. Steiner, 4 M. & Sc. 328. (x) The Zollverein, Swabey, 96. In the case of The Girolamo, 3 Hagg. Adm. 169, the collision took place in a river within British territory. (y) The Dumfries, Swabey, 63, 125. * (s) The Nostra Signora de los Dolores, 1 Dodson, 290. This is not inconsistent with General Steam Navigation Co. t. Guillon, 11 Mee. & Wei. 877, for there the defendant was not protected by the French law as owner, but was shown by the French law not to be owner; but it is inconsistent with the dicta in The Vernon, 1 W. Rob. 316. PRINCIPLES OF INTERNATIONAL OBLIGATION. IQJ than to appeal to the principle of the law of the defendant. It does not follow that that principle would be inoperative in torts committed beyond the empire of any geographical law, maritime or other, though Story says of this case, as well as of that *of maritime torts, which he does not distinguish from it, that "in eases of torts, committed on the <- -I high seas and in other extraterritorial places, by the subjects of one nation upon vessels or other movable property belonging to the subjects of another nation, .... the most that can with any probability be stated is that, in the absence of any general doctrine to the contrary, either each nation would, in respect to the case when pending in its own tribunals, follow its own laws ; or would apply the rule of reciprocity, granting or refusing damages according as the law of the foreign country, to which the in- jured ship belonged, would grant or withhold them in the case of an injured ship belonging to the other nation. The rule of reciprocity is often applied in cases of the recapture of ships from the hands of a public enemy.'Va) 3. Various Modern Theories. 159. "Grrotius," I have said elsewhere, "rested his international theory on the position that rights originate in the law natural, and are anterior to political society ; that states are formed by individuals relin- quishing portions of these rights, and that from the sovereignty so created flows in its turn the institution of positive law. But then, since it could not be said that individuals ever relinquished rights except mutually, each in favor of his fellow-citizens, it seemed to follow that private rights against the members of foreign societies depend still on the law of nature, precisely as those of independent governments, between which positive law has no place. The generality however of this conclusion was re- strained by the territorial character of political society. In certain modes pointed out by the law of nature, nations have acquired dominium *and imperium, the property in and the rule over the tracts of r:).ij^o-| land they occupy; whence it is 'natural(b'\ that within those L J tracts their respective laws should be observed. Nay, more ; it is not natural that any others should be there observed. For the law of nature does not enjoin, but permits, what are called the natural modes of acquir- ing property, so that they may be abrogated by the positive laws enacted in virtue of territorial imperium :(cj and that men have designed so to abro- gate them appears from the fact of their disuse. The Roman jurist indeed and their modern copyists enumerate some natural modes of acquisition as still in force between individuals, but they are not really such. They have been introduced by custom, and, simple as they are, the truly natu- ral modes are simpler still.(«^) Wherever therefore civil government exists, men do, both by right and in fact, contract with reference and in subjection to the positive law of the place of contract;' and every jural (a) Sect. 423, h. (b) Grotiua de Jure Belli ac Pacis, 1. 2, c. 11, s. 5. (c) Ibid. 1. 2, c. 3, s. 5. (d) Ibid. 1. 2, c. 8. 102 WESTLAKE ON PRIVATE INTERNATIONAL LAW. question whicli can arise out of their contract, including expressly the capacity of parties, must be decided by that law. Only in places yet unoccupied, as at sea, or in newly discovered countries, or when two per- sons who happen at the moment to be in diiferent territories contract by letter, can their dealings be now regulated by the law of nature ; but in those cases they are still governed by that law alone. "(e) 160. It was impossible that this system could become practical, not only because, even in the cases which it submits to positive law, it dis- misses all considerations of national character, domicile, place of execu- tion of contract, and situation of thing dealt with, each of which is often r*14cn *™^'i^) ^J ^ common jural sense of mankind, to override that L J single point of the actual place of contracting to which exclusive weight is attributed by Grotius; but also because it resigns to the sway of a vague law natural, which can amount in practice to little else than the judge's private opinion of what is equitable, those innumerable trans- actions of commerce in which all the parties do not happen to be at the critical moment withiu the same jurisdiction. Indeed we have here the result of the territorial theory — the local authority, which arises even from temporary subjection, imposing a duty on the party who obliges himself — crudely combined with a sense of the contract as something common to the parties who deal with one another, so as to deny such operation of the local authority where both parties are not subject to it by bodily presence. We have seen how Huber attempted to complete this system as it were from the outside, by adding the doctrine of comity; an attempt which could only lead to perpetuating the old war of real and personal statutes, because comity might be a reason for receiv- ing any rules on this subject, but could hardly point out which to receive. But in more recent times the internal method of completing the system has again been entered on, namely, by trying whether the principle of the territorial character of positive law cannot be made to yield some more satisfactory results than Grotius drew from it. The most remarkable of these efforts is Savigny's, which refers the question of capacity to act to the law of the domicile, as the territorial law of the person, without farther explanation of the reason ; and where the capacity to act is granted, seeks for each case a law which shall not only be common to the parties with reference to the subject, but shall also be so common to them in its character of a territorial law ; so that while the separate subjection of each party to the law under which he obliges himself is P1501 *^^^^ ^^^^ ™'^'^'^ °^^ °^ s^glitj(/) great subtlety is displayed in L -I extending the other Grotian element, the subjection of both parties to the same law q^ta territorial law, beyond the case in which alone Grotius perceived it, that of their both acting within its geographi- cal limits. 161. The foundation then of Savigny's system is the conception of a jural relation, (rechtsverhaltniss,) comprising all the circumstances and (e) Ibid. 1. 2, c. 11, s. 5. Papers read before Juridical Society, 1855-8, p. 174. (/) Not totally, as he admits it, both in principle and practice, when a foreigner is sued in the locus delicti on the obligation arising from the tort. See also note (i), page 151. PEINCIPLES OF INTBKNATIONAL OBLIGATION. 103 events which have to be considered in the determination of the case. Thus, to give his own example; "two brothers are subject to the patria potestas ; one makes a loan to the other ; the borrower repays it after the father's death, and the question is whether he can recover the sum so repaid as repaid in error. The several elements of the jural relation were, the patria potestas over both brothers, a loan by one to the other, a peculium which the debtor had received from the father. This combined jural relation has farther developed itself through the father's death, the succession to his estate, the repayment of the loan. "((7) Next, "every jural relation which comes before us for judgment necessarily has its origin in juristic facts, which must always be thought of as hav- ing taken place in past time, more or less remote. Then, since changes in positive law can enter during the interval since the origin of the jural relation, we have besides to determine from what point of time the rule which governs the jural relation must be taken. "(A) For all jural relations are governed by rules of law, which again belong to juristic institutions : as " the institutions brought into play in the example j ust given are, the father's acquisition through his children, the old _^^,.._ *pecuUum and particularly the deductio into it, the passing over L J of the deceased's rights of action to the heirs, the confusion of rights and liabilities by their meeting in the heirs, the condictio indehiti, (action to recover money unduly paid.) To simplify our conceptions, a natural distinction lies in this, that we can first construe the juristic institutions separately from each other, and then combine them at our will, while on the contrary the jural relation is given by the occurrences of life, and so appears immediately in its concrete combination and complication. But on farther consideration we recognize that all juristic institutions exist in connection with a system, and that they can be fully comprehended only in the whole co-ordination of that system. "0 162. Now the rules of law which govern jural relations are subject to changes of two kinds; in time, when the positive law of any country is altered, and in place, when the relations in their development come into connection with countries having different positive laws.(y) But from the remarks just cited it is plain that, notwithstanding such changes, Savigny can only regard the relation and the ^institutions bear- j-^, -„-. ing on it as wholes ; whence arises his principle, " that in the L -1 [g) Syst. d. heut. Rom. Rechts, T. 1, p. 8. (A) Ibid. t. 8, p. 4. (i) Syst. d. heut. Rom. Rechts, t. 1, p. 10. At the same time, Savigny admits that the most natural and earliest view of bilateral obligations is to consider sepa- rately the obligations of the two parties, determining from his own person the law and jurisdiction to which each is subject as defendant, the unity of the jural relation being a scientific invention to meet complicated cases ; and he quotes in proof of this the very common Roman habit of concluding a contract of sale by two separate stipulations, for the delivery of the article and for the payment of the price: ib. v. 8, p. 202. Now this admits the separate subjection of one party, independently of that of the other, quite as much as though it were of the lex loci celehrati contractus it was asserted, and not merely of the lex domicilii. {)') This connection of private international jurisprudence with the jurisprudence relating to a change of municipal law, which Savigny has pointedly brought out and formalized, had, however, been for some time previous clearly apprehended on the continent, in consequence of the importance of the " transitory questions" which arose whenever a code was substituted for an older legal system. 104 WESTLAKB ON PRIVATE INTERNATIONAL LAW. case of each jural relation that law must be sought, to the empire of which the relation belongs or is subject according to its peculiar nature." This principle is applicable to both descriptions of change, and when applied to change in place, the empire in question may be farther defined as " that in which the relation has its seat."(/i;) I have detailed this at greater length than may appear necessary to the English reader, for the sake of fairness, having already expressed my dissent from the view of law as governing cases instead of expressing commands to persons ; in order to give, as nearly as possible in the words of the original, a philo- sophy which is similar to the old theory of mixed statutes and locus regit actum, differing perhaps only in this, that it undertakes to give an account also of what was referred to the reality of statutes. 163. The application of Savigny's principle rests on a very wide, but not unlimited, admission of the will of the parties as decisive ; which will may be expressed by a tacit submission, as in cases of contract to the law of the place of fulfilment, and in the acquisition of immovable property to that of its situation. (?) In the former case, this conclusion is referred to an expectation of the parties that their rights will be de- cided by that law, similar to the expectation on which the same place is based as the special forum of the obligation. With Savigny, these two expectations are co-ordinate,(»K) for he rejects the doctrine that each court shonlA prima facie apply its own law,(n) and therefore sees no r*1 f;m ^^^^"^ ground for the choice of a law *than in the expectation L -I directed thereto. In the older view, the expectation as to juris- diction is the fundamental one, that as to law being deduced from it on the maxim that each court will prima facie apply its own law ; so that, where ihs forum contractus was not received, the lex loci contractus was but weakly held.(o) Upon either view, no difficulty could arise from the plaintiff's choice of the jurisdiction, for he could not be allowed to choose the law, and, in respect of law, the special forum was pointed out as the only one to which the intention was directed in the special matter, that of the defendant's domicile being merely a general forum. And either way again, the disputes between the so called forums celebrati contractus and solutionis, noticed in Art. 110, must affect to at least the same extent the law of the contract, to which, for Savigny, and most of those who agree with him in preferring the latter forum, the five rules of jurisdiction given in Art. 105 are at once applicable. 164. But a third opinion, arising out of the disputes last mentioned, must not remain unnoticed, namely, that the lex loci celebrati contractus must govern, notwithstanding that the true forum is that solutionis. This rests on a correct interpretation of the Roman texts referred to in Art. 110, combined with an incorrect one of the famous law : si fundus venierit, ex consuetudine ejus regionis in qua negotium gestum est pro (k) Syst, &c., V. 8, pp. 28, 108. (I) Ibid. p. 110. (m) Ibid. pp. 203, 204. (n) Ibid. p. 126, et seq. (o) Arts. 56 and 111, above. Aut, says Dumoulin, atatutum loquitur de his quss meritum scilicet cauasc vel decisionem concemunt, et tunc aut in his quss pendent a vol- untate partium velper eas immutari possunt, et tunc inspiciuntur circumstantise volun- tatis, quarum una est statutum loci in quo contrahitur , et domicilii contrahentium anti- qui vel recentis, et similes circumstantise — aut, ^c: t. 3, p. 554. PRINCIPLES OP INTERNATIONAL OBLIGATION. 105 evictione caveri oportet.(^p) It is however clear that the place of sale is only here intended *under the supposition that that place was p^, , .-, either, as Dumoulin argued, the domicile of the parties, or else, L " J as may seem probable, the situs of the land, or again, which is the most probable supposition of all, that all those three places coincided. The law in question does not treat of the conflict between these, but asserts local customs generally, as interpreters of contracts within their proper spheres, in opposition to an exclusive reference to the common law. 165. To me the whole matter appears in the following light. We must always look at the time when the duty correlative to every right arose, and to the territorial law to which at that time the party on whom the duty is imposed was subject. Then the principle applies that rights •which have once well accrued hy the appropriate law are, by comity, if you please, though it is a comity almost demanded by a sentiment of justice, treated as valid everywhere. This has been carried out in Chap. IV. as to immovables, in which discussion corporeal chattels might have been throughout included, if the theory were not in their case relaxed for convenience. For obligations, the law which imposes the duty on each party is that to which he was territorially subject at the time of becoming obliged, that is, the lex loci actus, or celehrati contractus. But it does not follow from this that every question which can arise even on express contracts must be determined by the law under which they were entered into, not only because the reason of the case may cause that law in some particulars to adopt another one, but also because many duties arise from the combination of the contract with facts committed or omitted subsequent to its inception, which facts, by the same prin- ciple, must operate according to thel aw under which the party stood when he committed or omitted them. Before however entering into the particulars, I will collect some of the chief authorities for the much dis- puted general proposition that the obligation *arises by the law [-^, ^k-i of the place of contracting, and not by that of fulfilment. L -1 166. First, then, it will be interesting to the reader to have the words of Bartolus, because they have been classical for five centuries, and open the way to a consideration of the details. (g) Et prima qucero quid di contractihus. Pone contractum celebratum per aliquem/orensem in hac civitate ; litigium ortum est, et agitatur lis in loco originis contrahen- tis : cujus loci statuta debent servari vel speciari ? Distingue : aut lo- quimur de staiuto aut de consuetudine quae respiciunt ipsius contractus solemnitatem aut litis ordinationem, aut de his quae pertinent ad juris- dictionem ex ipso contractu €venientis executionis. Prima casu inspi- citur locus contractus. Secundo casu aut quceris de Ms quae pertinent ad litis ordinationem, et inspicitur locus Judicii : aut de his quce perti- nent ad ipsius litis decisionem, et tunc aut de his quae, oriuntur secun- dum ipsius contractus naturam tempore contractus, aut de his quce ori- untur ex post facto propter negligentiam vel moram. Primo casu inspi- {p) Dig. 21, 2, 6. See above, Art. 111. A precisely similar interpretation must be given to the equally famous passage id sequamur quod in regione in qua actum est frequentaiur : Dig. 50, 17, 34. (q) They occur in his commentary on the Cod. 1, 1, 1. 106 WESTLAKB ON PRIVATE INT_ERNATIONAL LAW. citur locus contractus : et intelUgo locum contractus, ubi est celebratus con- tractus, non de loco in quem collata est solutio. Secundo casu, aut solutio est collata in locum cerium ; aut inpluribus locis alternative, ita quod electro sit actoris ; aut in nullum locum, quia promissio fuit facta simpliciter. Prim,o casu inspicitur consuetudo quce est in illo loco in quem est collata solutio : secundo et tertio casu inspicitur locus ubi pefi- tur. Ratio prcedictorum est quia ibi est contracta negligentia sen m,ora. Among the examples of these principles, Bartolus gives the following. Aut quis vult petere restitutionem ex Icesione contingente in ipso contractu tempore contractus, et inspicimus locum contractus : aut ex Icesione con- tingente post contractum. ex aliis negligentiis, ut m,ora, et inspicimus r *1 "^fi n locum ubi est ilia mora contracta, ut exprcedictis apparet, et sic L J si *esset in loco Judicii inspicimus locum Judicii. For the sake of clearness, I have omitted the citations from the Corpus Juris which Bar- tolus interweaves as authorities with his own sentences : but the reader will recollect that it is as much on them, as on their own intrinsic reason- ableness, that the latter are meant to repose. Most of the citations relate to the choice of a forum, and have been already given in that connection. Others of them merely declare that the price of goods sold without a price being named should be that of the place of delivery, or, if no place of deli- very be stipulated, that which rules where the action is brought : a question purely internal to any body of law, and not one of the conflict of laws at all. 167. In this passage Bartolus enunciates the following principles : that litis ordinatio, the mode of procedure, depends on the law of the forum : that the solemnities necessary to contracts, and the obligations which result at the time of contracting from the nature of the contract itself, depend on the law of the place of celebration : that those which result from the combination of a posterior fact with the original contract depend on the law of that place where the posterior fact occurs : that the non- performance of the contract by the omission or delay of one of the parties is to be regarded as such a posterior fact, and its juridical consequences deduced accordingly : that if the parties stipulate for the performance of their contract at a certain place, it is by the law of that place, as that where the omission to perform is committed, that the obligations flowing from nonperformance must be ascertained : and that if they name no place of performance, or stipulate for several in the alternative, so as to leave the choice to the promisee, the obligations flowing from nonper- formance must be ascertained by the law of the forum, whether the pro- missor's domicile, or any one of the stipulated places of performance, have been chosen as the forum by the plaintifl". r*1571 *1^^- Again, qui in loco aliquo contrahit, says Grotius, tan- -• quam subditus temporarius legibus loci subjicitur.M Of the three maxims of Huber cited in Art. 141, the two first are to a precisely similar effect; and from them Huber deduces the following rule : Cuncta negotia et acta tarn in judicio quam extra judicium, sen mortis causa sive inter vivos, secundum jus certi loci rite celebrata, valent ctiam ubi (r) L. 2, c. H, s. 5. INTERNATIONAL LAW OP OBLIGATIONS, 107 diversa juris ohservatio viget, ac uhi sic inita queviadmodum facta sunt lion valerent. E contra, negotia et acta certo loco contra leges ejus loci celehrata, cum sint ab initio, invalida, nusquam valere possunt j idque non modo respectu hominum qui in loco contractus hahent domi- cilium, sed et illorum qui ad tempus ibidem commorantur. He then subjoins his exception, si rectores alterius populi exinde notabili incom- modo ajfficerentur ; and, after an example or two of the rule adds idque non tantum de forma sed etiam de materia contractus affirniandum est. Similarly it is said by Hertius : Ratione actuum subjiciuntur cujusque generis persona, etiam advenas sive exteri, vel transeuntes vel negotiorum suorum causa ad tempus in civitate commorantes, quatenus nimirum ibi agunt, v. g. conirahunt vel delinquunt.(s\ 169. Lastly, the mention of " a contract made within the jurisdiction," though only for founding the forum contractus, in st. 15 & 16 Vict. c. 76, s. 18, leads to the conclusion that for such contracts our law also should prevail, according to the intimate connection between law and jurisdiction in such cases, noticed above in Art. 163. The Austrian code expressly chooses the locus celebrati contractus as that of which the law shall shall govern, except the parties have demonstrably looked to another. (<) 170. The detailed application of these principles to the international law of obligations must be reserved for the '''next chapter. Only p^, -q-. here the general subject of the international force of private law L J must be completed by observing that the laws which prescribe the modes of judicial procedure are commands addressed, not to the party, but to the judge; whence it follows that the latter is bound by those of the sovereign from whom he holds his commission, and that no circumstances can found for the parties a right to have the procedure determined by any other rule than the lex fori. This principle is that of the litis ordi- natio in the citation from Bartolus, and has been universally received ; though, as we shall see, great difficulty often arises in its application, in deciding whether a particular question belongs to the nature of the right or the method of the remedy. ^CHAPTER VII. [*159] INTERNATIONAL LAW OF OBLIGATIONS. 1. Formal Requisites of Obliga- tions, . . . .159 2. Material Contents of Obliga- tions, . . . . ITO 3. Transfer of Obligations, . . 225 4. Extinction of Obligations, . 229 1. Formal Requisites of Obligations. 171. The formal requisites demanded for a contract by the law of the place where it is rriade are sufficient for its validity everywhere. (s) De Coll. Leg. s. 4, I 4. (<) Sects. 36, 37. 108 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. For the law of that place imposes a duty on the party who obliges himself, the right correlative to which will thenceforth be respected and aided, even where the same facts would not have caused it to arise. I am not aware that this rule has been impugned, (o) for even those who hold the law of the place of fulfilment to be the general one on obligations do not press its exclusive adoption for their solemnities, on the ground of their maxim locus regit actum : indeed, the extreme in- convenience of an opposite course is obvious. The English cases com- monly cited in support of the rule are those on marriage, which, how- r*1f!m ^^^''; ^^^® ''o reference to the special *subject of obligation, and L -I would prove too much if alleged for the maxim just mentioned, which our doctrines on the form of acts relating to immovables, as well as some others, show not to be generally received in England. 172. But a difficulty arises in carrying out the rule, when the lex fori demands evidence which by the lex loci contractus is unnecessary, or re- jects evidence which by the latter is admitted. As the lex fori i% an imperative direction to the judge in questions of procedure, one opinion, and I think the better, is, that while he recognizes the possibility that the right may have been sufficiently created by the law of the place of contract, he must yet declare that the £act of its creation has not been so proved to him that he can enforce it. Another opinion is that of Boullenois, who deemed the mode of proof, as whether by oral or written testimony, to be a part of the vinculum obligationis, and therefore to depend on the law of the place of contract.(5) Savigny's view appears to be intermediate. " The authority of merchants' books as evidence," says he, " must be decided by the law of the place where they are kept it is indissolubly bound up with the form and efiect of the transaction itself, which here must be regarded as the predominating consideration. The stranger who intermixes himself with the merchant of a place where such books are evidence subjects himself to its local law.'Yc) The same reasoning would clearly apply to all rejection of evidence by the lex fori in the interest of the defendant, as in pursuance of the principle that no one can be a witness in his own cause : but Savigny so earnestly enforces everywhere the necessity that each tri- bunal shall respect those of its municipal laws which have a moral r*l fil 1 *S''°'i°'^> *^^* ^^ would doubtless refuse oral evidence where the L J lex fori demands written for the express purpose of preventing perjury. We may therefore suppose that he would have agreed with Leroux V. Brown, (c?) where the fourth section of the statute of frauds prevented the enforcement in England of an agreement which had been sufficiently solemnized by the lex loci contractus. Only as that ease was (a) The Prussian code establishes the rule locus regit actum in general, I. 5, s. Ill ; but with the exception that " in all cases where immovables, their property, possession or use, are the subject of a contract, the law of the situation of the thing must be observed;" I. 5, s. 115. See my remarks to a similar effect in Arts. 98, 99. (b) Traits des Loix, t. 2, p. 459. _ (c) Syst. d. heut. Rom. Rechts, v. 8, p. 355. And so, he says, it has been de- cided at Cassel. {d) 12 C. B. 801. INTERNATIONAL LAW OF OBLIGATIONS. 109 put on the broad distinction between rules of procedure and others, without reference to the motives of the former, we may suppose it to adopt the first of the above three opinions. And besides that a law of procedure, however motived, is imperative on the judge, the fear of per- jury lies so much at the root of all rules of evidence that it must be very difficult ever to disprove their moral end. In Leroux v. Brown the court appears also to have thought that the seventeenth section of the statute of frauds, as not being a rule of procedure, would not apply to foreign transactions. 173. Tlie formal requisitesd emanded for a contract hy the law of the place where it is made are necessary for its validity everywhere. For if that law imposes no duty, the lex fori, in the attempt to do so, would bear the same relation to the foregone fact on which alone it could operate, that a new statute bears, in the ordinary change of municipal jurisprudence, to the events which have taken place before its enact- ment. Also, if the principal contract be rendered ineflFectual by this rule, any collateral security given on foreign land must fall with it, though sufficiently created by the lex situs. (ej *174. The first objection to this rule is that of those who p^.„„-. hold the maxim locus regit actum to be an exception, made, for L J convenience to the law of the place of fulfilment. They of course con- ' sider that the parties may waive this exception, by contracting in the forms of the latter law.(/) 175. The next doubt takes a wider scope, by admitting the parties to waive, not an exception from the proper law, but that law itself, namely, by contracting in the forms of their common domicile. If a contract so made were asserted as universally valid, the opinion might be rested on the principle of the law common to the parties, and would no longer appear as a permission to waive the proper law, but as a peculiar in- stance of the proper law. But the jurists who have maintained it have generally removed it from this ground by confining the validity of these contracts to suits in the common domiole,((7) in which form the opinion must be objected to as breaking in on the intercommunity of law, which is the principle of private international jurisprudence. Accordingly, (c) Richards v. Goold, 1 Mol. 22. The case there referred to of Bifield v. Tay- lor, Sm. & Ba. Ill, would have been a direct decision for the rule of Art. 171, in the case of a conflict between the lex loci celebrati contractus and solutionis, if the advocates of the latter had not withdrawn their contention, on the opinion of the court appearing to be for the former. The annuity was covenanted to be paid in London, but the pleadings obliged the court to hold that the covenant was exe- cuted at Dublin, and the question was on the necessity of a memorial registered pursuant to the English annuity act. (/) This appears to be the just extension to contracts of Rodenburg's doctrine that, in wills, the form loci actus may be waived for that rei sitse, (De Jure quod oritur e Statutorum Diversitate, tit. 2, c. 2, s. 3 ; see also tit. 3, c. 3 ;) and the just application to them of Savigny's doctrine that the form loci actus may always be waived for the proper one of the transaction, (Syst., v. 8, p. 358.) (ff) P. Voet, de Statutis, s. 9, c. 2, n. 9; Hertius, a. 4, ^ 10, non valet 6; Bonl- lenois, t. 2, p. 459 ; Fcelix, n. 83. On the other hand, J. Voet appears to allow the widest liberty of choosing the forms of acts, so that it can hardly be doubted but that he would have held a contract thus made to be valid everywhere; ad Pand., 1. 1, tit. 4, p. 2, n. 15. 110 WESTLAKB ON PRIVATE INTERNATIONAL LAW. though an error of pleading prevented a decision on it, it would appear from Benham v. Mornington(A) that the bond of a British peer, made in r*i rqn ^^^^'^^ *" Another Englishman, *must fulfil the requirements of L J French law by having bon or approvi written on it by the hand of the obligee. 176. Another objection formerly made was to the necessity of foreign stamps, on the ground that no court is bound to respect the revenue-laws of a foreign jurisdiction. This exploded doctrine will be noticed in speaking of the legality of contracts, but is not really in point here, for the question is not whether our respect for foreign revenue laws shall restrain us from imposing an obligation, but whether an obligation arose in the country of the agreement when it was made, since we can- not otherwise impose one here. Thus in Alves v. Hodgson, (i) an action on a promissory note made in Jamaica, but payable in London, failed for want of the Jamaica stamp : in Clegg v. Levy,(/i;) an agreement of part- nership made at Surinam between the plaintiif and defendant was not received in answer to the action, as it had not the Surinam stamp : " I agree," said Lord Cranworth, in Bristow v. Sequeville, " that if for want of a stamp a contract made in a foreign country is void, it cannot be enforced here. "(A These authorities overrule the opposite dicta in James v. Catherwood(m) and Wynne v. Jackson.^ra) In the New York case of Ludlow v. Van Rensselaer,(o) a promissory note made in France and payable at New York was held good, though wanting the French stamp, on the alternative ground that either stamps depend on the lex loci solutionis, or that no regard should be paid to r*l m *fo'"6ig° revenue laws. Both these mistakes are expressly cor- L J rected in the Louisiana case of Vidal v. Thompson. (j>) 177. A law existing at the place of contract, hy ichicli a certain de- scription of evidence is made necessary to support an action, is equiva- lent to one requiring certain solemnities as preliminary to the contract i?\ For a legal right is nothing else than the power of invoking the law against another, which, in the case supposed, does not exist by the lex loci contractus : it is therefore vain to say that the lex fori contains no such rule of evidence,. for the foundation of every procedure must be an obligation, and by the only law which could impose one no obligation exists. This reasoning has the authority of Story.(g'') But it has not been as yet adopted by the English courts, since in James v. Cather- woGd(?') a loan, and in Bristowe v. Sequeville/ s) the payment of money to the use of another, were allowed to be proved by receipts which in the respective countries where the advances were made would not have been evidence for want of stamps. The ground of disregarding foreign (A) 3 C. B. 133. (i) '7 T. R. 241. {k) 3 Camp. 166. [1) 5 Exch. 279. (m) 3 Dow. & Ry. 190. (n) 2 Russ. 351. Story, (s. 260, note,) is probably right in referring the in- formality in the French bills in this case to the want of a stamp ; but, whatever it was, it must have been a defence at law, so that the case is good, independent of the dictum. (o) 1 Johnson, 94. (p) 11 Mar. 23. (j) Sect. 260, note. (r) 3 Dow. & Ry. 190. («) 5 Exch. 275. INTERNATIONAL LAW OF OBLIGATIONS. HI revenue-laws was taken in the former case, but repudiated in the latter. It is possible therefore that the former might have been differently de- cided if the evidence needed had not been a stamp, but in Bristowe v. Sequeville, Lord Cranworth adopts the view that questions of evidence, like others of procedure, are in all cases governed by the lex fori, and not by the lex loci contractus. I cannot however think that his lord- ship's view was correct. The special force of a rule of evidence is to exclude, not to admit, testimony of a certain character, every kind being 'prima facie receivable. We therefore give full effect to the lex fori if we *admit no evidence which it rejects, without accepting, r,^-|f.c-, merely because it does not reject it; proofs of which the real <- -I tendency is not to establish but to create an obligation. Or the point may be put thus : Read the evidence, if you please, but read it for what it is worth. The point we have to try is whether there was an obliga- tion in the locus contractus, to the law of which you submitted your- ,self;(<) and to this your evidence does not go, for it only proves the transaction as a fact, which is not enough. 178. If there are several parties to. a contract, the solemnities which must he satisfied hy each are generally those of the place where he engages himself. In applying this it will be recollected that if I become a party to a contract, through an offer or assent contained in a letter, the place where I engage myself is that whence the letter is despatched, even though, in the case of an offer, my obligation be not complete till it has been accepted elsewhere : this is a question of fact. Acebal v. Levy(M) was an action on a refusal to receive nuts ordered by the defendants in Lon- don from the plaintiff in Spain. It failed, and properly, for want of a suflBcient memorandum under the statute of frauds, the defendants having promised in England, by letter dispatched thence, and therefore under English law. The vendor's assent, which was given in Spain, would have been necessary, no doubt, to complete th« defendant's obliga- tion : but it could not by itself create it, when the statute of frauds pre- vented the existence of any inchoate obligation which the vendor's assent might complete. Suppose the plaintiff in Acebal v. Levy had omitted to tender th« nuts, after having sufficiently assented to the bargain by the law of Spain : in an action for the non-delivery, the Spanish courts should, *I think, hold such an one free, for the failure of con- p.^, »^-. sideration, the other party not being bound by English law to L J pay the price. 179. The doctrines of the last article have been much disputed. The opinion of Grotius, that only the so-called law of nature can avail in the case of a contract concluded by correspondence, has been already noticed : it is also adopted by Hertius.(a!) Others compare the person who writes the first letter with one who travels to the place where his correspondent gives the assent, and there concludes th« contract orally : but then as H) See the citation from Savigny in Art. 1'72. (u) 10 Bing. 376. \x) De Commeatu Literarum, s. 16-18. Unless the recipient of the first letter declare his assent before witnesses: hoc quippe facto, contractus isio loco proiinus suam firmitatem, et simul formam, nanciacitur : s. 19. 112 WESTLAKB ON PRIVATE INTERNATIONAL LAW. this scientifically determined locus celebrationis is not in their system sufficient to regulate even the material contents of the obligation, unless on the condition of its being also the place of fulfilment, still less can it serve to found an application of the maxim locus regit actum, the reasons for which, whether drawn from a temporary subjection to the local law or from the convenience of the parties, require an actual and not a con- structive presence. (y) Hence the contract is considered as concluded, for the purpose of determining its formal requisites, by each party at his own domicile : a conclusion which would support the decision in Acebal V. Levy. The Prussian code lays down that for the formal requisites of contracts concluded by correspondence, if different laws prevail in the domiciles of the parties, that shall be followed by which the contract will be supported, (z) ''*l R7T *180. But when a contract to which there are several parties L -I is evidenced hy a single instrument, the necessary form of that instrument is determined once for all hy the law of that place where it begins to have an operation. This is the case in bills of exchange. The requirement of special forms in them may be instanced from stamps — from the law of Germany, where the draft must contain the words " bill of exchange," or their equivalents in any language in which it maybe penned(a) — and from that of France, where a bill of exchange is only such if drawn from one place on another.(6) Now the bill is constituted by the drawing and putting in circulation alone, and is thenceforward the evidence of a complete obligation, even though it never should be endorsed or accepted : for the drawer guarantees its acceptance no less than its payment. Consequently the stamp or other form of the place of drawing will be both necessary and sufficient, in whatever country the draft be afterwards negotiated or accepted. Thus in Snaith v. Mingay,(c) the Irish stamp was held sufficient on a bill drawn in Ireland with blanks for the sum, time of payment, and drawee's name, and which, after being there signed and indorsed by the drawer, had been sent by him to a correspondent in England with autho- rity to fill it up. It was remaked by Justice Bayley that if the drawer had died, and afterwards the blanks had been filled up and the bill ne- gotiated to an innocent indorsee, the drawer's executors would have been bound. Conversely, an acceptanee on a blank stamp will not do, if the bill be afterwards drawn on it in a country where a different stamp is required ; for the acceptance relates to the drawing and not vice versa :(d\ r*lfi81 ^°^ therefore is the stamp *of such country of blank acceptance L J at all necessary. The British legislature has acted on this doc- (y) Casaregis, de Commercio, Disc. 1Y8, n. 1, 2, 9, 10, 62-64 ; Savigny, v. 8, pp. 237, 257. Story, not perceiving this distinction between the solemnities and matter of a contract, supposes Casaregis to decide even the former by this con- structive lex loci; and therefore objects to Acebal v. Levy, supporting himself by cases which, both the English and American ones, refer only to the vinculum ob- Ugationis : s. 286. (z) Allg. land. Eecht, I. 5, s. 113, 114. (a) Art. 4 of law mentioned below in Art. 181. (b) Code de Commerce, Art. 110. (c) 1 M. & S. 87. \d) Abrahams v. Skinner, 12 A. & E. 763. INTERNATIONAL LAW OF OBLIGATIONS. 113 trine in assuming a right to impose a stamp on bills drawn in Great Britain and Ireland and payable abroad, while on the other hand bills drawn abroad will not require the British stamp, though accepted or made payable here :(e) only now, by stat. 17 & 18 Vict. c. 83, s. 5, a stamp is required on foreign bills presented for payment in England, so that the effect of the general principle is now restrained to exempting foreign bills from the British stamp-laws when presented for acceptance here.(/) 181. It must be observed that the rule of Art. 180, only relates to the forms necessary to the validity of the instrument, and that, if the liability of any of the parties to it can be separated from this question, that will still have to be decided by the rule of Art. 178. Thus the invalidity of a particular indorsement leaves the existence of the bill of exchange itself untouched, and the indorser will therefore not be chargeable unless the law of the place of indorsement be satisfied. Now if that law do not expressly impose a stamp on the indorsement of bills, the stamp which it may impose generally on the bill will not be made necessary by the indorsement within the jurisdiction, because such stamp, as we have seen in Art. 180, will depend on the place of drawing.(5') But now, by stat. 17 & 18 Vict. c. 83, s. 5, a stamp is imposed on the indorsement of bills in England ; and it may be a question whether, if a foreign bill be sufficiently stamped where drawn, but an *indorsement made r^fc-inn-, upon it here be invalid for want of this stamp, that will discharge L ' J subsequent indorsers in other countries, who may be presumed to have relied on the validity of all the previous indorsements. This case has been foreseen and provided for by the 85th article of a uniform law on bills of exchange, drawn in 1847, at a congress of the north-German governments, enacted by the national assembly at Frankfort in 1848, and since successively adopted, with some variations, by all the states of the confederation. The whole article is worth quoting, and runs thus : — " The differences arising upon the fulfilment of the essential conditions of a bill of exchange drawn in foreign countries, or in any other contrsjct of exchange made abroad, ought to be adjudicated according to the laws of the country whence the bill has been drawn and the engagement taken. Nevertheless, if the clauses inserted in foreign bills accord with the requirements of the German law, the objection, that they are deficient according to the law of that country, cannot be urged against them to the effect of invalidating the subsequent indorsements inserted in Ger- many. In the like manner, the clauses contained in such bills, according to which a German- binds himself towards another German in a foreign country, are effectual if they accord with the requirements of the German law."(/i) 182. If the actual place of drawing (and so, now, of indorsing) be I (e) Boehm v. Compbell, Gow. 56 ; 8 Taun. 679. , (/) SharpL-^s v. Rickard, 2 H. & N. 57. I must therefore dissent from Hamelin v. Bruck, 15 U', J., N. S., Q. B. 343, where it was thouglit that an English stamp was necessary on a bill drawn abroad for a larger sum and accepted here for a smaller. The foreign stamp which covered the greater sum, should have covered the less, and at any rate the place of acceptance could not affect the question. (g) Holdsworth v. Hunter, 10 B. & Cr. 449. (A) This transUtion is borrowed from Levi's Commercial Law, v. 2, p. 73. January, 1859 8 114 "WBSTLAKB ON PRIVATE INTERNATIONAL LAW. disputed, with tlie view of showing that the bill, as improperly stamped, is not receivable as evidence, the judge, and not the jury, must decide where it was drawn or indorsed, (i) And as it is a serious offence to mis- date a bill for the purpose of evading the stamp-laws, very stringent proof of such an act will be required, and the bill will do, if it may have been r*1 701 '^''^^° i"^ ^''y *part of the country at some place in which it bears L J date. (A;) Also a party to a bill cannot be estopped from taking advantage of its not being duly stamped. (7) 183. All the above cases refer to stamps. But others may arise. Thus, with reference to the French law mentioned in Art. 180, Pardessus points out that the draft of one London merchant on another should be valid and negotiable in France,(OT) and we should hold the draft of one Parisian merchant on another invalid and not negotiable in England. 2. Material Contents of Obligations. 184. After the formal requisites, there comes the general question of the vinculum juris, or legal tie, arising between the parties to a contract: its extent, duration, and modifications. What rights of either against the other does this tie include ? Does it carry with it an inherent liability to dissolution ? and, if so, when or on what conditions will it be dissolved ? And are the rights which it includes subject to receive any and what modifications during its continuance 1 In order to answer these queries, the rights which flow from a contract have been variously subdivided, some being said to be of its essence, some of its nature, and others merely of its obligation in a narrower sense of that word. And doubtless such a classification may sometimes be of use, especially in countries where the principal kinds of contracts are accurately enumerated by the law, and many regulations made about them. But in proportion as men enjoy a fjeedom of making any engagement, however modified, which may suit _^^_.-. their own *desires, it is impossible to carry out the above or any L J other minute classification of the rights which result from con- tract, considered in themselves. More may be learnt by attending to their origin, and hence it is that no distinction is really so fertile, or throws so much light on this subject, as that which in the passage cited in Art. 166, is drawn by Bartolus, between the rights which immediately flow from and at the instant of the contract, and those which arise from non- performance, delay, or any other posterior fact. The same distinction appears to have been present to the mind of Msevius, though in the fol- lowing passage he has intimated it less clearly, because without an express reference to time : Gave autem in hac materia confundas actuum et con- tractuum solemnia, necnon effectus ab ipsis causatos, cum eorum onere (i) Bartlett v. Smith, 11 M. & 'W. 483 ; Bennison v. Jewison, 12 Jur. 485. {k) Abraham v. Dubois, 4 Camp. 269 ; Bir^ v. Moreau, 2 C. & P. 376. Or, now, in the United Kingdom; st. IV & 18 Vict. c. 83, s. 4: but this clause does not seem t(5 meet the case of a bill drawn in one foreign country, and dated in an- other. {I) Steadman v. Duhamel, 1 C. B. 888. (m) Droit Comm., s. 1485. INTBKNATIONAL LAW OF OBLIGATIONS. 115 et accidenti extrinseco, quod contractus subsequitur sed non ex ipsis con- tractibus est. Id dum multi ignorant, aut non discernunt, /orenscs maximopere laeduntur et gravantiir : in his enim, quia non spectant ad formam modumque contrahendi, contractum autem extrinsecus subse- quuntur, non sectamur statuta loci contractus.(n\ 185. Every lawful dealing between parties which gives rise to a legal tie or obligation is a contract, a term opposed to tort or delict, which is the unlawful fact of one person binding him by a legal tie or obligation to another. Here lawfulness is opposed to unlawfulness, and a dealing between parties to a fact proceeding from one^side. You may also be bound to another by your own sole but lawful act, and this is an obliga- tion quasi ex contractu. Now men contract by agreement, by consent, or by fact. The obligation of an agreement arises from promise, which may be oral, written, or inferred from acts, and, if express, need not distinctly enumerate every thing which it includes. *Thus a rij:-i:-^-, party to a bill of exchange promises by his signature to do all L "J that which as drawer, acceptor, or indorser he may have to do ; a promise the details of which are far more complicated than appears in the simple words of the draft. The obligation of a consensual contract is imposed by the law on the relation in which the parties have placed themselves by their consent. Thus the pecuniary rights of a husband and wife, who marry without settlement, do not flow from any mutual promises, but from the matrimonial relation in which the consent interchanged in the ceremony has placed them. If the law permits them to vary their mutual pecuniary rights by special arrangement, the nuptial contract is consensual as to all those pecuniary rights which the parties may have left to the general law, and an agreement as to all which they have pro- mised each other in derogation of it. Lastly, when parties enter into a particular dealing without agreement, they institute a contract by fact, as in the loan of money when no terms are stipulated as to interest, or the time and mode of repayment. In contracts by fact, as in consensual contracts, the obligation is measured by the law ; but, as in agreements, it is not an indefinite series of obligations proceeding from one general relation which is iij question, but a limited obligation arising out of a certain transaction. 186. Now what has been said as to the formal requisites of contracts applies equally to agreements and consensual contracts. In contracts by fact, and in obligations quasi ex contractu, there can of course be no question of solemnities, farther than as rules of evidence may have an operation equivalent to them, as was discussed in Arts. 172 and 177 ; in such cases, as in delicts, there is nothing to be considered but the proof of the transaction and the obligation inposed thereon by law. 187. In agreements, the next point to the form is the *inter- y^..„^-. pretation. Even if the parties express their intentions at length, L J as in the exuberant provisions of an English marriage settlement, there may be obscurity in their language. If, as in a bill of exchange, they do so by a few words depending for their development on known laws (n) Ad Jus Lubicense, Qusest. Pre!. 4, n. 18. 116 WBSTLAKB ON PRIVATE INTERNATIONAL LAW. ■ and customs either openly or tacitly referred to, we may have to ask whether this law or that usage was intended to be incorporated with the contract. Then, when all which was contemplated in the agreement is ascertained, it will usually be found that the transaction places the par- ties in fresh relations which had not been foreseen, and we ask by what law the rights and duties incident to those relations are to be determined. This last branch of the inquiry is that which in the other kinds of con- tract, and in delicts, is made without any previous question of interpre- tation. Nothing was contemplated, or at least, as in a loan when no terms are stipulated, it does not appear what was contemplated, but the lawful or unlawful fact placed the parties in new relations, and we ask what law decides their rights under them. So too in the consensual contract of marriage, when celebrated without settlement, the consent of the parties being directed to the establishment of a personal relation, quite heterogeneous from the pecuniary rights which result from it, and there being no proof that those pecuniary rights were in the particular instance considered by the parties at all, there can be no question of in- terpretation, but simply one of law. 188. Interpretation is a question of fact. Prima facie, the law of the place of contract will furnish the most proper clue to the meaning of the parties. If they have used words which there are technical, or have mentioned coins, weights, or measures which have a different value there and elsewhere, it is the value or technical sense of that place which they are most likely to have contemplated. Whatever they have not men- r*17dT *'io°^'^) y^* cannot but have '''contemplated, they most likely L J meant to follow according to the law of the same place, or the usages there prevailing. Yet these are but presumptions, and therefore liable to be rebutted. If the agreement expressly stipulate for a per- formance elsewhere, the usages and technical language of the place of execution, at least in all that relates to the execution, are more likely to have been present to the minds of the contractors than those of the place of contract. Still more will this be the case if the place of execu- tion be also the domicile of both parties : and it is conceivable that the law of their common domicile might, even without the circumstance of a stipulated performance there, afford a safer guide to their meaning than that of the merely casual place of contract. On all these points, the greatest writers on this branch of jurisprudence have abstained from laying down sweeping presumptions of law which might be applicable to every description or example of agreement. 189. Care however must be taken to bear in mind the true scope of this inquiry, that the latitude allowed in it may not result in setting the whole subject at sea. There is no question here of introducing whole- sale the laws of any particular country, by an implication that the par- ties contracted with reference to them. There is no question of intro- ducing any thing into the agreement at all, but only of developing what was actually intended by the words used. Sometimes that only requires the meaning of the words to be explained : sometimes it needs more. Thus if a bill of exchange is expressed to be payable on a certain day, and at a certain place where certain days of grace are allowed, the INTERNATIONAL LAW OP OBLIGATIONS. 117 acceptor meant to reserve for himself tbat grace. The intention cannot indeed be elicited by the dictionary from any particular words he has used, but he has sufficiently indicated it by the general form of the in- strument, well known in commerce to convey that meaning. *He rHc-i7c-i intended to bind himself to payment on a certain day, which L J day is |ufficiently indicated by naming one earlier than it by the known interval of grace. Thus also " usances," if such a term occur in the bill, are to be interpreted as referring to the custom of the place of pay- ment.(o) But by what law the damages shall be measured in case he does not pay, or by what law it shall be decided whether he has a right of set-off against the assignees of a bankrupt holder, are not questions of interpretation, since it does not appear from the bill that these contin- gencies were considered when it was made. By attending to this, and to the distinction between agreements and consensual contracts, the student will see that this doctrine of interpretation leads to no such re- sult as, for instance, that by marrying without express nuptial contract, the spouses tacitly apply the law of the place of marriage to immovable property situate elsewhere. We have already remarked how far all law is originally founded on the existence or presumption of a common in- tent, or persuasion of justice, among the members of the community where it exists; but to apply that presumption, as a juridical argument, to the case of every individual, would be to obliterate the boundary between the law and the will of the party. 190. The place of payment of a bill of exchange is a matter of inter- pretation no less than the time, and, on the same principles, must be referred to the law or understanding prevalent where the bill is accepted. Here however an attempt has been made to establish a universal rule, for Lord Brougham has said " the general rule is that where the accep- tance is general, naming no place of payment, the place of payment shall be taken to be the place of the contracting of the debt." But I cannot ^suppose it was intended to apply this rule even when the exis- j-^, „„-. tence of a different one in the country of the acceptance may be L -" proved : and the application of the rule in the particular case to Scot- land, where, his lordship said, " it appears — and it is rather singular that it should be so — that where a bill is accepted generally, it shall be deemed payable at the place at which the acceptor is domiciled when it becomes due," should rather be taken as overruling that point of former Scotch law, than as a refusal to interpret the place of payment with reference to the custom of the country of the acceptance. (p) The time and place of payment, determined either as here explained, or by any other principle, will apply to the drawer and indorsers no less than to the acceptor, since they guarantee payment at the time and place indi- cated by the tenor of the bill. (o) Pardessus, Droit Comm., 3. 1495. And whether months are lunar, &c. (p) Don V. Lippmann, 5 01. & F. 1, 12, 13. The old Scotch rule was evidently based on the maxim actor seguilur forum rei. To the general rule propounded there appear two serious objections, that the obligation on the bill is not identical with that as a security for which it is given, and that the holder of the bill may be unable to ascertain where the latter obligation was contracted. 118 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. 191. Oq this Lead, of interpretation, I may also refer to what has been said in Art. 88, and the authorities there cited. 192. The meaning of the parties being ascertained, it is next neces- sary that it be lawful, both in respect of the thing promised to be done, and of the consideration for the promise. The legality of the former should, on principle, depend on the law of that place where it is to be performed. For one sovereign cannot enjoin the performance of any act in the territority of another. If I in England promise to do that in France which is there permitted, an obligation arises by English law, not as though the sovereign authority here could command me to do any l-^, „„-, *thing in France, but because it can command me at least to L J make good by an equivalent the expectation I have raised. But if I in England promise to do that in France which is not there lawful, the respect due to an independent power forbids our law to contemplate the actual performance of my promise, and no obligation arises, because I cannot be considered to have raised any expectation. And this gene- ral rule, that the legality of an undertaking is to be referred to the place of execution, has, subject to the limitations to be mentioned in Art. 196, the common support of the jurists. (j) If no place of performance be stipulated, either expressly or by necessary implication, the legality of the thing promised will depend on the law of the place of contract, as that of the state where the undertaking is primarily to be executed. These principles are illustrated by a bond executed at New York, and conditioned for the faithful management of a lottery in Kentucky. Lotteries are legal in the latter state, illegal in the former : and an action on such a bond has been sustained at New York, the law of that place being held to impose an obligation on a promise made there to do that which would have been prohibited by its own provisions, though per- mitted in the place of performance. (r) 193. The English authorities on the same subject go less directly to the point. In Heriz v. Kiera,(s) an agreement was made in Spain be- tween a merchant who had concluded a contract with the Spanish govern- l-^,„„-. ment and an *officer of the same government, by which the L -I latter was to share in the profits of the contract. The agreement was, from the public character of the officer, invalid by the law of Spain ; but the bill, which was filed against the merchant for an account by the English administrators of the officer, alleged other promises to the same effect made by the merchant after he had left Spain. The court held that there was no sufficient evidence of these later promises, but I sub- mit that even had they been proved, they would have been void by the law of Spain as the country of performance. Again, the statute 6 Geo. 1, c. 18, gave to two English companies a monopoly, but for England (q) It falls in with the rule of the lex loci solutionis, for those who refuse the lex loci contractus : only, when there is no fixed place of execution, they must haye recourse to the contrahent's domicile. (?•) Kentucky v. Bassfnrd, 6 Hill, 526. The general doctrine is stated in the American case of Cambioso v. Maflet, 2 Wash. 104: "if the contract of a foreigner is to be completed in, or has a view to its execution in, a foreign country, and is repugnant to the laws of that country, he is bound to take notice of them." (a) 11 Sim. 318. INTERNATIONAL LAW OF OBLIGATIONS. 119 only, of insuring marine risks in partnership. Another company having its place of business in London was held capable of insuring marine risks by its agent at Glasgow.(<) It was argued that the agent promised that a policy should be granted in London, in which case the promise would have been void by the law of its place of performance : and such proba- bly was the real nature of the transaction. But Lord Lyndhurst avoided contravening the international doctrine, by a supposition that the policy promised by the agent might be granted in Scotland. 194. The legality and suflSciency of a consideration should depend on the law of the place of contract ;(m) since the promisor will not be bound if the consideration do not, from its nature or value, support his promise by that law to which he is subject; while, if bound in the place of con- tract, he will be held so everywhere, by the principle of the international validity of rights which have once well accrued. This rule may be sup- ported by two cases in which the question regularly arose between the *place of contract on the one hand, and, on the other, that of rj|c-ii-Q-i stipulated payment, or the situs of the thing to which the con- L -I tract related. In the Massachusetts case of M'Intyre v. Parks,(a;) a mortgage of Massachusetts land was sustained, which had been con- tracted for in New York as a security for the price of tickets there sold in a Delaware lottery : and in the English case of Wynne v. Callander,(j') bills of exchange having been given in England for money here lost at play, and afterwards French bills substituted for them in France, the eJBFect of which was to continue the English contract with a new and foreign place of payment. Lord Gifford ordered the latter bills to be de- livered up without requiring any information as to the French law. In Quarrier v. Colston,(«) money won at play, and lent for the purpose of play, where that is lawful, was held recoverable in England : a decision consistent with the rule, and valuable as showing that the lex fori did not interfere on the ground of turpitude, though there was not in the case a place of stipulated payment distinct from that of Contract. A case equally indecisive, and for the same reason, is one where by the usury law of the state where the loan was made, and was to be repaid, the principal was recoverable; by that of the state where it was secured by mortgage, the rate being the same, the whole was vitiated; and the former prevailed, (a) 195. But one English case contains a dictum in which an opposite view is taken to the one here maintained. I mean Robinson v. Bland,(6) an action on a bill of exchange, payable in England, but accepted and given in *France, for money partly lost there in gaming, and p^, „„-. partly lent at the time and place of play. Lord Mansfield thought L -1 (t) Pattison v. Mills, 1 Dow. & CI. 342 ; S. C, sub nom. Albion Insurance Co. v. Mills, 3 Wils. & Sh. 218. (m) Here the supporters of the lex loci contractus and lex loci solutionis are of course at variance. (x) 3 Met. 207. Though lotteries are not allowed in New York, the sale there of tickets in a Delaware lottery was in this case held to be good by New York law. (y) 1 Russ. 293. (z) 1 Ph. 147. See Art. 196, as to the principle of turpitude. (a) De "Wolf v. Johnson, 10 Wheat. 367. (4) 2 Burr. 1077. 120 WESTLAKB ON PRIVATE INTERNATIONAL LAW. that the hill, being payable here, was subject to our law as to the vice of the consideration. It was not necessary to decide the point, as by the death of the acceptor there had ceased to be an obligation in France : a debt of honor, during the life of the debtor, could then have been reco- vered in that country in the court of the marshals of France. Yet ques- tions about the consideration belong most essentially to the vinculum ohligationis of BouUenois, and the obligations resulting at the time and according to the nature of the contract of Bartolus, which those great authorities refer expressly to the place of contract as distinguished from that of performance. 196. Nevertheless, no state may hold transactions legal which it con- siders to be contrary to the law of nature, or hurtful to the purity of morals, notwithstanding that an opposite view may be taken of them elsewhere. (c) " It is a maxim," said Lord Wynford, " that the comitas inter communitates cannot prevail in any case where it violates the law of our own country, the law of nature, or the law of God. "(cc) I should prefer to say that comity, rightly understood, cannot violate, because it is a part of, the law of this as of every country : but the other members of the sentence furnish a real help towards settling the limits of comity. No state can be justified in directing its tribunals to enforce obligations which it holds to be founded in wrong. It may countenance foreign rights which it would not originate, where the diversity of laws does not depend on an opposition of deep-seated moral ideas, but on a difference in the circumstances of two countries, or on those errors of judgment r*l8n w^ic'i ^^ legislator will excuse *in his fellow-man. But when L -I the claim is held by us to be subversive of the fixed principles of our nature, and to tend towards the promotion of vice, we must reject it, as well from the duty of keeping ourselves clear of guilt, as for the evil example which its recognition would give to our citizens. 197. There is no doubt great difficulty in drawing the line between the foreign laws which, on these principles, may and may not be admitted. The fundamental maxim of private international jurisprudence, that a right which by the appropriate territorial law has once accrued shall thenceforth be universally recognized, can only be fully carried outbetween nations which possess common ideas on all the topics with which law is conversant. Whether between any two nations the jural intercommunion which the maxim would establish be in the main possible, is a question of degree, depending on the number and importance of their diflferences on social matters. It need hardly be said that rights flowing from the Mahomedan law of marriage could never be enforced in a Christian country : there are questions on which even Christian countries diverge so widely from each other that their laws on them cannot be mutually received. Thus specific performance will not be granted here of a con- tract between husband and wife to " facilitate" proceedings for divorce, and to place the custody of a child with the mother, contrary to our (c) The exception here asserted in favor of the lex fori is allowed by all, whether advocates of the lex loci celebrationis or solutionis, (cc) Forbes t. Cochrane, 2 B. & Cr. 47 1. INTERNATIONAL LAW 05 OBLIGATIONS. 121 law.(ii) And it was doubted in Robinson v. Bland, though, as we have seen, the latest decision is in the affirmative, whether gaming debts, con- tracted where play is lawful, could be recovered in England. We have seen also that the exception of turpitude is not held in America to ex- tend to lotteries. 198. But this exception has been agitated with the greatest warmth when slavery has been concerned. *Smith v. Brown was an r^itioQ-i action for the price of a Virginian slave sold in London. (e) The •- "'J declaration failed to show the situation of the slave at the time of the contract, and it appeared that slaves in Virginia were ascripti glebce, but the court seems to have thought that but for these objections the action would have lain. Property however in man was not then regarded in England as contrary to the law of nature, for a lord's property in his villein was noticed by the court in the argument, so that the decision, eve6 had there been one, could not be considered as binding now. The doctrine was much discussed in Forbes v. Cochrane, an action in tort for harboring escaped slaves on board a British ship of war, but which went oix on the- ground that such a ship was for such a purpose the same as English soil.(y') In Madrazo v. Willes, it had been decided that the subjects of a state which permits the slave trade cannot be lawfully in- terferred with in carrying ii in.(a\ The great American case on this subject is Greenwood v. Curtis, where a cargo was sold on the coast of Africa for slaves, and partly paid for in them, then a balance struck in bars, an African currency, and a promissory note immediately given for the amount in slaves. (A) Justice Sedgwick held, and apparently with reason, that the whole transaction was one bargain for slaves, and that therefore no action could be sustained for the balance struck nominally in bars; but the majority of the court considered that the form of such balance showed a primary sale of the cargo for money, on which the plaintiff was allowed to recover, as separable from the agreement for slaves. The case was one for the application of the law of nature only, as it would be absurd to talk of any African *law on the subject, j-^, „„-. so that it was not all parallel to Smith v. Brown, where the Vir- L -i ginian law was in question. It has been held in argument by Chief Jus- tice Shaw that, upon a note given in a slave-state for the price of a slave, a suit might be maintained in Massachusetts :(i) but we may say with Story — and, in England, with a more confident doubt — that " this doc- trine, as one of universal application, may admit of question in other countries, where slavery may be denounced as inhuman and unjust, and against public policy."(y) 199. It will be understood that, in cases falling under Arts. 192 and 194, the taint of illegality is not confined to the mere stipulation for the performance abroad of acts there prohibited, or to the consideration branded by the strict letter of the law of the place of contract, but ex- tends to all those dealings which have a necessary, though remote, con- (d) Hope T. Hope, 22 Beav. 351; 3 Jur. N. S. 454. (e) 2 Sal. 666. (/) 2 B. & Cr. 448. Iff) 3 B. & Al. 353. (A) 6 Mass. 358. (i) In Commonwealth v. Aves, 18 Pick. 215. (/) Sect. 259, note. 122 "WBSTLAKE ON PRIVATE INTERNATIONAL LAW. nection witli the offence. This belongs indeed to the general principles of law, and not in any peculiar sense to international jurisprudence. The internal jurisprudence of every country must contain full details on the kind and degree of that connection with an illegal object which will vitiate a contract not directly aiming at it : and the same ancillary pro- tection should be thrown with an impartial hand round those foreign laws of which we admit the obligation within their proper territories. Hence, by the law of whatever country the illegality of an act or of an agreement be determined, it will affect transactions connected therewith, and other agreements depending on the primary one, to the same extent as in any ordinary violation of municipal law, though the contracts so impugned may have been made in other jurisdictions than the primary one, and may not be illegal in their immediate places of contract or exe- r*iszn '^^^^o^- Thus no *recovery should anywhere be suffered on a L J contract, made in one country, to insure a ship in a violation of the navigation or customs laws of another : such an insurance would be subsidary to the breach of a foreign law. In Waymell v. Eead, the vendor of lace at Lisle, who had packed it in a peculiar manner to facili- tate its being smuggled into England, was unable to recover the price •Jk) but in Holman v. Johnson(Z) and Pellecat v. Angell,^m) the price was recovered of goods which had been sold and finally delivered abroad, the vendor being no way concerned in smuggling them into this country, though he was aware they had been purchased with that object. In all these cases the mere agreement was to be executed as well as made abroad, but in the first it had an inseparable connection with the per- formance of an illegal act in England. It is very doubtful whether the mere knowledge of the unlawful purpose should not in the latter cases have been held to amount to an equally inseparable connection with it,()i.) but what is important for us to remark is, that the doctrine of internal law on the point, such as it was understood to be, was applied to these foreign contracts. On the principles of this article also, our courts re- fuse to take cognizance of any claims arising out of loans made, or ex- penses incurred, to assist insurgents against governments at peace with ours, until such insurgents have been recognized by Great Britain as r*1 '^M *^ ^^^ state, though the pecuniary part of such transactions may L J have its seat entirely in England. (o) 200. AVith the doctrines of Arts. 192 and 199, substantially coincides (k) 5 T. R. 599: S. P., Clugas v. Penaluna, 4 T. R. 466; and Biggs t. Law- rence, 3 T. R. 454. In the latter case, however, the court relied much on the British character of the plaintiff, a circumstance which did not exist in the other cases, and on its opinion that the agreement was to be considered as made in England. {I) 1 Cowp. 341. (m) 2 Cr., M. & R. 311. (n) HoweTCr, in M'lntyre v. Parks, (see above. Art. 194,) the vendor knew that the purchaser's object was to resell the lottery tickets in Massachusetts. (o) Expenses; Macnamara v. D'Bvereux, SL. J., Ch. 156 : loans ; Jones v. Gar- cia del Rio, T. & R. 297; De Wiitz v. Hendricks, 9 Moore, 586; 2 Bing. 314; Thompson v. Barclay, 6 L. J., Ch. 93; Thompson v. Powles, 2 Sim. 194. And the court will take judicial notice of whether the insurgents have been recognized; Taylor v. Barclay, 2 Sim. 213 : though at nisi prius evidence has been admitted on that point; M'Gregor v. Lowe, Ry. & Moo. 57 ; 1 C. & P. 200. INTERNATIONAL LAW OF OBLIGATIONS. 123 the position often taken, that contracts lawful where made are yet to be held illegal, if the parties have made them there rather than elsewhere for the express purpose of evading a prohibition decreed by the law of the country where they would naturally have been entered into. At least, that position, known as the in fraudem legis principle, appears to be true so far only as it is co-extensive with what is here delivered. ILmy contract be illegal where it is to be executed, or be inseparably con- nected with some act illegal where it is to be performed, it will not be valid though I go elsewhere to make it. In any other case, I only use my right by contracting where I please. 201. It remains to notice a a exception which has been made to the doctrine -of international legality here delivered. It has been said that no state is bound to give effect to the revenue-laws of another : and this maxim has received the support of many distinguished jurists, especially in former times, when monopolies of trade were so commonly aimed at by states that, but for the fact that all were equally culpable, we could not wonder that they did not enlist the ordinary sentiments of justice in their support. At present however the maxim is mentioned by most writers with deserved reprobation. (p) It *is one of the constant rs)ciof>-| marks of a barbarous age that the duties of humanity are con- L J ceived to be limited to compatriots : and such was the character of the jurisprudence which allowed smugglers to contract for the breach of the laws of friendly states, provided by them, in the exercise of an undoubted authority, as specially necessary to their and their citizens' pecuniary interests. In Boucher v. Lawson,(5) it was held that aa action .would lie in England on a contract to smuggle gold out of Portugal ; and Lord Ilardwicke remarked that the contrary opinion " would cut off all bene- fit of such trade from this kingdom, which would be of very bad conse- quence to the principal and most beneficial branches of our trade." If the principal branches of our trade had really corresponded to tWs con- ception of them, England must for ever have wanted the might which alone could give to such a doctrine the color of right. In Lever v. Fletcher, Lord Mansfield held it lawful to insure a ship in England against loss to be occasioned by embarking in prohibited trade with a Spanish colony, although the noble lord noticed in his judgment the additional fact tliat such trade was " illicit by the treaty of Paris."(r) Now it is a principle that, as expressed by Lord Stowell, " every treaty is a part of the private law of the country which has entered into that treaty, and is as binding on the subjects as any part of their municipal laws,"(s) so that the contract approved in Lever v. Fletcher did not more tend to the performance on Spanish soil of an act there illegal by Spanish law, than it was directly contrary to the law of Eng- land, not to *mention' the bad faith of supporting our own r^Kio^-i subjects in the breach of our owa treaties. It is only with L J {p) Pothier, Traits du Contrat d'Assurance, n. 58 ; Kent, Commentaries, v. 3, pp. 263-267; Story, s. 25'7-; &c. But Kent and Story admit tlie complete esta- blishment of the maxim in American practice, and I am obliged to repeat here the similar English cases, not being able to cite any which directly overrules them. (q) Ca. t. Hardwicke, 85. {r) 1 Park, Mar. Ins. 506 ; 1 Marsh. Ins. 56. («j In The Eenrom, 2 Rob. 6. 124 WESTLAKE ON PRIVATE INTERNATIONAL LAW. pain that such decisions can be mentioned. In Planclie v. Eletcher, recovery was Lad on the insurance of a ship which, with the know- ledge of the underwriters, cleared out for a false destination, in order to evade certain French custom-duties and English lighthouse-dues. (i) The case has been questioned on the ground of the latter,(ii) and I may include the former in the reasons of my dissent. 202. In Sharp v. Taylor an account was decreed between partners, of the profits made in the employment of a ship which had been registered in the United States by a fraud on the ship-registry laws of that repub- lic. (icl "Will the courts of this country," said Lord Cottenham, "re- fuse to administer justice between joint importers of any article of com- merce upon proof that, in the production or exportation of such article, some fiscal law of the country of produce had been violated ? During the French war the greater part of the foreign trade of this country was carried on in despite of the fiscal regulations of other countries, some of which were not at war with this country; and there are still instances existing of the same kind; but the parties to such transactions have not, upon that ground, been denied the ordinary administration of justice in matters growing out of such transactions. The cases do not support any such proposition. (See Pellecat v. Angell, and the cases there cited. ")(y) It must always be recollected that much discretion is reposed in a court of equity, in the exercise of which it may see fit to interfere in respect r*188n °^ ^^^ profits between parties *equally at fault, and it cannot L J therefore from Sharp v. Taylor be concluded that an unexecuted contract in defiance of the revenue laws of the place of performance would now be enforced in England. The reference to what happened during the great war may be illustrated from Simeon v. Bazett,(z) in which the underwriter was held liable on an insurance effected against the enforcement of the continental system by Prussia, on traffic with her; Prussia, though she had acceded to that system, not being then at war with us. The system, however, was so essentially hostile, that no court could reasonably treat the relations arising out of it by the rules of a nominal peace, and it would be difficult therefore to draw from this case a precedent for countenancing a violation of foreign laws under ordinary circumstances. It is however unfortunate that in his judgment Lord Ellenborough should have dismissed the license from the British govern- ment, under which the traffic was carried on, as rendered immaterial by the absence of open war with Prussia : a dictum which gives a color for treating the case as an authority in a state of virtual as well as' nominal peace. A court which was not disposed to coincide with the doctrines of Boucher v. Lawson and Lever v. Fletcher, and yet hesitated to draw itself the line within which justice demanded the extension of comity to foreign laws, might have found in that license a justification for the course actually pursued in Simeon v. Bazett. 203. One application of the doctrine of the legality of contracts is to stipulations for a certain rate of interest, or for compound interest, on the (t) 1 Doug. 251. (m) 1 Marsh. Ins. 462. (x) 2 Ph. 801. (2/) lb. p. 816. See Art. 199, as to the cases referred to by Lord Cottenham. (z) 2 M. & S. 94. Affirmed, sub nom. Bazett v. Meyer, 5 Taunt. 824. INTERNATIONAL LAW OF OBLIGATIONS. 125 loan or forliearanee of money. The classical text of the Digest is from Papinian : cumjudicio honm Jidei disceptatur, arhitrio judicisusurarum modus ex more regionis ubi contractum est constituitur, ita tamen *-ut legi non offendat.{a) This obviously relates to judicial inte- ^ J terest ex mora in the nature of damages ; and, even for that, expresses merely the general principle, without reference to the case of a contract made in one place, to be fulfilled in another, and sued on in a third. It has however been drawn into the controversy on stipulated interest, and with reference to such conflict. By the repeal of the British usury laws, the subject has lost much of its interest here, but is still sometimes necessary to be considered in foreign contracts. Now if the interest agreed on exceed that of the place of stipulated payment, the parties at least can never be taken to have imported voluntarily into their contract a law which would defeat it. Nor will it always be found reasonable to decide the question of usury by the law of the place of repayment. If I lend money in New York to a merchant who intends to employ it in Louisiana, where he resides, but for my own convenience stipulate for its repayment at New York, would it be just that I should be limited to the New York rate of interest ? Usury laws exist for the protection of the borrower, from whom no greater sum is to be extorted than the profit which the law conceives he may have made by the employment of the capital advanced ; but what necessary connection is there between the place of repayment, and the probable place of employment of the loan ? It is clear that a more reasonable rule would be given by the domicile of the borrower, as it is at his home, or at his place of business, that he is most likely to use the sums he has borrowed. The case is not diffe- rent when a rate of interest is stipulated in case of the non-performance of an obligation ; as if a bond, a promissory note, or a bill of exchange, specifies the interest to be paid in case it should not be discharged at the appointed date. This interest is *not indeed primarily intended r:|!iQA-i by the parties to be paid at all, for on the contrary the fulfilment <- -I of the obligation at its maturity is intended, and the interest is a compen- sation to the creditor in case the expectation so raised should be defeated. Therefore, if the parties have been silent on its amount, the court, grant- ing interest ex mora, may justly measure the compensation by the damage; that is, by the rate of the place of stipulated repayment, where it is presumable that the creditor would have employed the money, had he duly received it. But, if the parties have chosen to refer themselves expressly for such compensation to the higher rate of the debtor's domi- cile, the latter cannot complain of having to give for his use of the cre- ditor's money what he may be presumed to have made of it, nor can the creditor be deemed to act hardly if he refuse to accept the security on any other terms. In all that has been said, the place where the loan is made or the forbearance occurs may be substituted for the debtor's domi- cile, since that also is a place in which he may have employed the money.: and thus we are led to the conclusion that, from the motives of usury laws, the most onerous stipulations may be justified which are {a) 23, 1, 1. 126 WESTLAKE ON PRIVATE INTERNATIONAL LAW. allowed either by the law of the debtor's domicile, or by the law of the place of the actual transaction, but not by that of the place of repayment, which has in this matter only the technical value arising from the famous law contraxisse 204. The rate of judicial interest ex mora has properly no concern with the subject of the legality of contracts on which we now are; but, be- cause they are not well distinguished in the cases, and in order to bring together the whole doctrine of interest, I may refer to what was said in- cidentally in the last paragraph, as fixing its just measure by the law of that place in which the fulfilment of the obligation was promised. The non-fulfilment is a new fact posterior to the contract, the effects of which r*iqn ™'^^'' ^^ determined *from its own nature and appropriate law. L J Now on the one hand, the omission which constitutes such fact must be taken to occur where the performance ought to have been, and therefore under the empire of the law of that place ; and on the other, its nature is to cause damage to the creditor, the amount of which is fairly measured by the interest of the spot where he hoped to receive the money. 205. The above system agrees with that of Foelix, except that in con- vential interest he allows the parties a latitude of choice which would altogether exclude the operation of usury laws on the subject. (6) Sa- vigny on the contrary would limit all interest to the measure of the lex fori, on account of the moral end of usury laws, since it is admitted that no judge may violate the moral sense of his own legal system. No doubt it is in a supposed interest of morality that such laws exist, but the ques- tion remains, what particular interest of morality ? and, if it be the pro- tection of the borrower, cases may arise in which that will allow a foreign rate of interest to be recovered. But, so far as the lex fori does not oppose, Savigny agrees with Foelix in admitting a claim to conventional interest not lawful in the proper seat of the obligation, because he acknow- ledges no operation of law on the contract otherwise than by the volun- tary subjection of the parties, which is not conceivable with reference to a law which would defeat their engagement.(c) Story's conclusion is that " interest may be validly contracted for at any rate not exceeding that which is allowed in the place of payment or performance : and in the absence of any express contract as to interest, the law of the same place P1921 ^'^' *furnish the rule, where interest is to be implied or allowed L ""J ex mora.UT) 206. The English cases repudiate the limitation of interest to the measure of the lex fori. Thus, where there was a simple conflict between that and the lex loci contractus, no place of fulfilment appearing distinct from that of incurring the obligation, the latter law was followed both in the old cases of Dungannon v. Haokett, Lane v. Nichols, Harvey v. East India Company, and Ellis v. Loyd ;(e) and in the later one of Bodily v. Bellamy.^/) The next step is made by Stapleton v. Conway, where there was nothing foreign about the whole transaction but the situation (h) No. 109. (c) Syst. d. heut. Riim. Rechts, v. 8, pp. 2T6, 277. [d) Sect. 296. (e) All in 1 Eq. Ca. Abr. 288, 289. (/) Burr. 1094. INTERNATIONAL LAW OF OBLIGATIONS. 127 of the immovable property on which a security was given, and which thus brings the matter to this point, that the place of contract prevails over both the forum, and the "place (if any) of such seeurity.(^) The subdivision, as it may be called, of the place of contract commences in Eanelagh v. Champante, where a bond 'was executed in England, condi- tioned for the repayment in Ireland of advances made there. According to two reports, Irish interest was allowed, which appears to be the just decision :(A) but by another, the English rate only was allowed, "because the bond was executed here."(i) The latter report was adopted by Lord Hardwicke in Connor v. Bellamont, and appears to have been the ground of his converse decision in that case, allowing Irish interest on a bond given in Ireland for a debt contracted in England. (A;) *This how- r^-inoT ever, may be considered to have been set right by Lord Gotten- L J ham's dictum in Fergusson v. Fyffe, who, with reference to an alleged agreement to pay compound intel-est on the balance of an account stated, said that its legality depended on the place where the debt was con- tracted :(?) so that to the place of executing the security, if different from that where the advance is made, we need probably pay no farther atten- tion. So far then the cases agree with the principles of Arts. 203 and 204 ; but now, if the debtor's domicile, or the place of the actual trans- action, differ from that of stipulated repayment, it must be confessed that the English authorities support the rate of interest of the latter. Thus, in Thompson v. Powles, the vice-chancellor said of a loan negotiated in England by a foreign government, that " in order to hold the contract to be usurious" — that is, as transgressing the English rate — " it must appear that the contract was made here, and that the consideration for it was to be paid here. It should appear at least that the payment was not to be made abroad, for, if it was to be made abroad, it would not be usurious. "(«i) It is however difficult to see why it should have been more improper to pay the interest in London than to an agent of the fundholder abroad, the real transaction, either way, being a foreign invest- ment. 207. But in America a different ground has been taken, and the deci- sions there are consistent with what I have, suggested as the reasonable rule, in Depau v. Humphreys *a New Orleans firm had given r^iq^-i at New Orleans to their New York creditor a promissory note L J payable at New York, which, for the forbearance, was to bear interest at ten per cent., the legal rate at the former place, that of the latter being (g) 1 Ves. sen. 427. \h) 1 Eq. Ca. Abr. 289, and Pre. Cha. 128. (?) 2 Vern. 395. {h) 2 Atk. 382. His lordship also weut on a security having been given on an Irish estate, which argument may be answered from his own decision in Stapleton V. Conway, ubi supra. {I) 8 CI. & E. 121, 140. It is true that this was only a dictum (except, for which purpose it is not here used, in excluding the lex fori,) for the agreement, if any, was made where the debt was contracted. (m) 2 Sim. 194, 211. The circumstances of Harvey v. Archbold, 3 B. & Cr. 626, seem to have amounted to a commission by the bankrupts to the defendants to borrow money for them at Gibraltar. In Dewar v. Span, 3 T. R. 425, and Exp. Guillebert, re Trye, 2 Dea. 509, every circumstance combined to point to the Eng- lish law. There is also an anonymous case which decided that British subjects lending money abroad were not, as such, bound by our usury laws : 3 Bing. 193. 128 WBSTLAKE ON PEIVATB INTBEN ATION AL LAW. seven. (ji) It was sustained by tte court of Louisiana, on the ground that interest depended on the lex loci contractus celehrati and not on the lex loci solutionis, and " that the circumstance of the place of payment dif- fering from that in which the lender parts with his money ought to have no influence in the fixation of the rate of interest." In Chapman v. Robertson a New York merchant while in England had contracted to borrow £800 from an English merchant, on the security of his bond and of a mortgage of his land in New York, both which he was to execute on his return. This was done accordingly, and in a suit for foreclosure Chancellor Walworth said, •' I have arrived at the conclusion that this mortgage, executed here and upon property in this state, being valid by the lex situs, which is also the law of the domicile of the mortgagor, it is the duty of this court to give full effect to the security, without reference to the usury laws of England, which neither party intended to evade or violate by the execution of a mortgage upon the lands here.'Vo) 208. The meaning of the parties being ascertained, and found to be lawful, an obligation to fulfil it is imposed, and must therefore be mea- sured by the law to whose commands they are temporarily subject : that namely, for each, of the place where his promise is made. This is ob- viously true for the immediate rights of action, as is also a similar pro- position for those arising from delict, and for contractual obligations P^.Q.-. arising by fact, all which must depend *on the law of the place L J where the person to be charged acted. But it is no less trae for the subsequent rights of action. If I become surety for a loan which is to be repaid elsewhere on a future day, no action can be brought against me till default has been made, yet whether it will then be necessary first to exhaust all remedies against the principal debtor will depend on the law of the place where I became surety : for the conditions under which I am to be called on belong essentially to the obligation imposed on me by that law, which consists of a potential liability to suit, to become actual at a future period, and cannot from the first be defined without stating the conditions on which its actuality is to depend. The jurisprudence which binds the contractor in the inception of his contract determines the nature and extent of the liabilities he incurs, and, if any of them are conditional, the circumstances in which they are to arise : and though those circumstances may afterwards occur within another jurisdiction, they can have no other legal effect than by relation to the contract, or therefore than was traced out for them in the beginning by the law which then bound the contractor. 209. Thus, in marine insurance. There is much variation in the laws which regulate general average, both as to the interests which are liable to contribute, and the losses for which it may be claimed. The holder of a respondentia bond is not liable to contribute in England, in Denmark he is so : and in England general average is founded on the sacrifice of part to save the rest, while in some other countries it extends to all co:;t or loss voluntarily incurred to escape danger, as by putting (n) 8 Mar. N. S. 1. (o) 6 Paige, 627, 633. De Wolf T. Johnson, 10 Whea. 367, is S. P. with Sta- pleton v. Conway, sup., p. 192. Jacks v. Nichols, 1 Seld. 178, is a clear case. INTERNATIONAL LAW OF OBLIGATIONS. 129 into port from stress of weather, or by tlie destruction of tackle through putting on a press of sail to avoid being driven on shore. Will then the underwriter of an insurance effected in PJngland be liable to reim- burse a contribution exacted in a foreign port, but which would pot have been due by English law ? *In Walpole v. Ewer(p) the point i-^inp-i was decided against the insurer of a respondentia bond on the L J cargo of a ship bound to a Danish port : but this has been overruled by Power Y. Whitm6re,(j) in which the underwriter of cargo was held not liable for a general average which in England would not have been struck. The later decision is in accordance with the maxim of the lex loci cojitractus, for the promise was made in England, though it was a conditional one on events which happened abroad. The same doctrine is also firmly established in America, where the insurer will only be held liable for losses which may be incurred in accordance with the law of the place where the insurance was made.(r) 210. These cases illustrate the difficulty which attends any system of private international jurisprudence based on the supposed intention of the parties to act or contract with reference to any particular law. Was the insurer most likely to think of his own law, or of that of the port of destination for which he effected the insurance ? The balance of pro- babilities is so nice that it might be inclined either way by the judge's own turn of mind, and in Walpole v. Ewer, Lord Kenyon held the underwriter hound to know the law of the port of destination, which, according to Power v. Whitmore, he is not even supposed to know. 8uch instances may induce us to be cautious in the implication of agree- ments beyond what it is ascertained that the parties actually had in vie\*-. That indeed should be ascertained with care, as in Newman v. CazaletjM where the underwriter was held liable on *proof that r^iq^-j averages struck in the particular foreign court, in the mode then L J in question, had been often submitted to by English insurers ; and the case was accordingly distinguished in Power v. Whitmore, as depending on the special agreement considered to have beeii proved in it. But though the principle of this distinction is certainly just, it may be doubted whether in Newman v. Cazalet the special agreement was suffi- ciently proved, as the evidence, so far as it tended to establish any thing, pointed much rather to its being a general custom of English insurers to submit to the law of the port of destination. 211. Another instance is furnished by the mutual rights of partners, since they flow from the contract of partnership, and not from the trans- actions which give them their immediate occasion. The contract of partnership could not indeed be fully defined otherwise than by enume- rating the duties which in any event are to be performed by the partners to one another, and these are therefore regulated once for all by the local law of the partnership.fi) The same reasoning holds for com- (p) Park on Insurance, 8th edit., p. 898. (?) 4 M. & S. 141. (r) Schmidt v. United Insurance Company, 1 Johns. 249 ; Lenox v. Uu. Ins. Co., 3 Johns. Ca. 178 ; Shiff v. Louisiana State Ins. Co., 6 Mar. N. S. 629. («) Park on Insurance, 8th edit., p. 899. (t) Yanzeller v. Vauzeller, 15 Jur. 115; Baldwin v. Gray, 4 Mar. N. S. 193. January, 1859. — 9 130 WBSTLAKE ON PEIVATE INTERNATIONAL LAW. panies, the questions between the shareholders in which must every- where be decided by the law of that country from which they derive their incorporation or their statutes. (a) But the liability of a partner to third persons, on the dealings of his copartner, depends on the local law of those dealings : for the jurisprudence of the partners' country " can no more affect the rights of those who contract with them in a different country, than particular stipulations between the partners could. "(x) A proposition perhaps rather too large. It seems, however, to be on this ground that Story, putting the case of a partnership en commandite, of which the ^general partner orders goods from a house in a L ^^°\ country where limited liability is not allowed, asks with great hesitation whether, on an insolvency of the partnership, the commandi- taires will be liable to the vendors beyond the amount of their subscrip- tions. (y) The truth is that the directors or other managing members of a firm or company are the agents of the other members, to pledge their credit to the extent agreed on between themselves : a case which in- cludes that of an ordinary English partnership, in which all the mem- bers are agents for each other to an unlimited extent. And, secondly, these directors or managing members may act through extraneous per- sons expressly employed by them. The question then of the liability of partners to third persons depends at least on a single, sometimes on a double, application of the doctrine of agency, which we will now pause to consider. , 212. And, first, let us suppose a principal carrying on a business in a foreign country through an agent expressly employed there for that pur- pose : then in all the contracts which the agent makes, or the acts which he does, in the course of such business, it is universally admitted that the case is the same as though the principal were there present, and made or did them himself. He is indeed constructively present, and that too though his own free will, in the agent's person ; so that there can be no question of the extent of the latter's authority to bind him, but only of the substance of the obligation, as depending on the inter- pretation of what has passed between the agent and the third person, and the effect of the local law thereon. Thus, in the Louisiana cases of Malpica v. M'Kown(z) and Arayo v. Currell,(a) the pretension was re- butted that the liability of a ship owner, who employed his vessels in the rs-iQQT carrying *trade between foreign ports, in respect of losses in- L -1 curred by passengers and freighters, or torts committed against them by the captain, depended on the law of his o^vn domicile, and not on the local laws of the contracts made with the plaintiffs. There might of course be a question, supposing the voyage to commence under one law and terminate at a port subject to another, whether the true local law of the contract is that of the former place, where the agreement is made by the master of the ship, or other representative of the owner, who receives the passengers or goods, or that of the latter, where the (u) Sudlow V. Dutch Rhenish Railway Company, 21 Bear. 43. (x) Baldwin v. Gray, i Mar. X. S. 192, 193; a Louisiana case. See below. Art. 223. (y) Sect. 320, a. {:) 1 Louis. 248. (a) lb. 528. INTBKNATIONAL LAW OP OBLIGATIONS. 131 agreement is to be completely fulfilled. But that was not at issue in those cases, nor was the master's agency to contract for the carriage dis- puted ; but the point was whether the obligation of that contract was to be measured by the same rule, which would clearly have had to be applied if the owner had made it at the same place in person. 213. Next, let us suppose an agent contracting or acting out of the course of the business in which he is employed, and that a claim is made on the principal, by those with whom the agent has so dealt, as bound to ratify and adopt the dealing. Such claim may of course be sustained on the ground of private instructions from the principal, if the existence of any which the agent followed can be proved : but what if it be rested on a law empowering agents to act in emergencies for the interest of their principals ? A law to that efiFect in the principal's domicile had him for its subject when he there took the agent into his service, and therefore imposed such potential liability on him from the first, wherever the deal- ing by the agent, which was the condition for actuating the liability, may have afterwards occurred. Or, it may be said that such a law was tacitly accepted by the principal, as that which was to govern his em- ployment of the agent. But a law to the same effect in the place of the agent's subsequent dealing makes nothing *to the principal's in- p:^9firv-i tention, as to which the latter place is quite casual : nor -has it L J the principal for its subject, he not being present there, either in fact, ex hi/pothesi, nor constructively, since the agent's authority for the par- ticular dealing is the very point in dispute. 214. " Thus, the English law does not allow the master to hypothe- cate the vessel, at least expressly, unless in a foreign port where personal credit is unattainable ; but entitles him to pledge the absolute pergonal responsibility of his constituents for the amount of necessary repairs, fur- nishings, &c. : while on the other hand the French law authorizes him to hypothecate the vessel, &c., but not to bind his constituents personally, at least not beyond the eventual value of the ship and freight, &c., on her return : and it is quite clear that the merchants and artizans of the respective countries must contract with the shipmasters of each other, according to the powers respectively inherent in those offices The clear result is that the transactions must be held to have reference to the master's implied mandate, according to the law of his own coun- try."(i) 215. Let us now take a case where the principles of Arts. 212 and 213 appear to be complicated. The agent acts out of the business for which he is employed, and without private instructions, so that the third party (i) Brodhie's Supplement to Stair's Institutes, v. 2, p. 956. The leading Eng- lish case to this effect is the Nelson, 1 Hagg. Adm. 169. The American authori- ties to the same effect are collected by Justice Story, in his judgment in Pope v. Nickerson, 3 Story, 478. The same jurist, in his Conflict of Laws, s. 286, b, adds, " 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 in the master." For this he cites Emerigon, Contrats a la Grosse, c. 4, s. 8, § 3, a passage which refers solely to a concealed restraint by the owner on the master's legal authority, as to which see below. Art. 217 — and Mal- pica V. M'Kown, which refers to the wholly different case of Art. 212. 132 WESTLAKE ON PRIVATE INTERN ATIONAL LAW. r*9m 1 '^'^^^ *wlioni the agent so deals can have no claim on the prin- L -I cipal but under the law of the latter's domicile. But suppose the dealing in question to affect the interests of a fourth party, with whom the agent had previously dealt in the course of the business he was employed in, and so therefore as to bind his principal according to the local law of that previous contract. Thus a vessel, owned in Massa- chusetts, and being on a voyage from a port in Spain to a port in Penn- sylvania, is compelled by stress of weather to put into Bermuda, where the master sells both her and the whole cargo; and the action is by the shippers against the owners to recover the amount of their consignment. Surely the law to be applied is that either of Spain or of Pennsylvania, for the owners must be taken to have contracted in, the one country to carry the goods to the other. Yet the circuit court of the United States determined that the liability of the owners was governed by the law of !Massachusetts.(c) 216. As the judgment in this case was delivered by Justice Story himself, the reader will expect a more particular account of it. The learned judge entirely ignored the distinction drawn in Arts. 212 and 213, and, referring to the cases of Malpica v. M'Kown and Arayo v. Currell, said " they appear to me to proceed upon false principles, and to be at war with the current doctrines of the common law. The deci- sions proceeded upon the ground that there is no difference in the legal result, whether a contract is made in a foreign country by an agent, or by the principal himself personally in that country. Assuming the general rule to be so, to what cases does it properly apply? Certainly to those, and to those only, where the agent possesses full authority to make the particular contract." (rf) Here I pause, in order to bring into , Qfin-i strong *contrast a passage from the earlier part of the same judg- L " "'J ment. "It is not denied that the master was duly authorized to take the present shipments on board for the voyage."(e) In the mean time, the learned judge had cited from the Digest the words: cum inter- dum, ignari cujus sint conditionis vel quales, cum magistris propter navigandi necessitatem contrahamus, cequum fuit eum qui magistrum navi imposuit ieneri ut tenetur qui institorem iahernce vel negotio prce- posuit Omnia enim facta magistri debet prcestare qui eum prceposuit, alioquin contrahentes decipientur . supposing that their point was removed by the exception which yet, in connection with the admis- sion of the master's authority to take the shipments, seems to clench the matter against the owners : non autem omni ex causa prceior dat in ex- ercitorem actionem,, sed ejus rei nomine cuJus ihi propositus fuerit, id est si in earn, rem pmposifus sit.(f\ But the laws of Spain and Massa- chusetts limited the responsibility of the owners for the torts of the master and mariners to the value of the vessel and freight, a restriction which did not exist in Pennsylvania : and accordingly, said Story, " if the ship is owned and navigated under the flag of a foreign country, the authority of the master to contract for and to bind the owners must be measured by the laws of that country, unless he is held out to persons in other (c) Pope V. Nickerson, 3 Story, 465. (d) p. 481. (e) p. 473. (/) 14. ], 1. From Ulpian. INTERNATIONAL LAW OF OBLIGATIONS. 133 countries as possessing a more enlarged authority. "(5') And is he not so held out, by being sent among them for the purpose of conducting a particular business in their territory ? If a Massachusetts bank esta- blished a branch in Spain, would not the cashiers be held out as posses- sing authority to bind the partners by Spanish law ? I do not perceive what difference the flag makes, since the contract for *carriage n:(,!,f^o-\ was neither made nor to be fully executed on the high seas. An L ^ J argument for confounding the case with that of Art. 213 might have been drawn from the words of Ulpian next following those last quoted : ut puta si onus vehendum locatum sit, aut aliquas resemerit utiles navi- ganti, vel si quid reficiendce navis causa coniractum vel impensum est, vel si quid nautce operarum nomine peient. But in illustrating the con- sequences of agency, it was not necessary for the Roman jurist to distin- guish that created by the principal from that created by the law, the im- portance of the distinction arising only under a conflict of laws such as did not exist in the Roman empire. In the former description of cases, the third person deals with the agent as with the principal : in the latter, he deals with him expressly as agent. 217. Another distinction often taken on this subject is between the general powers incident to an employment, and those to which the agent may be restricted by the private instructions of his principal. It is per- fectly sound, only the student may be misled by the terms sometimes used, as though such general powers were referred to the general law maritime, or to the Roman law, as supposed to be common ones, to which exceptions may exist by municipal laws, or by private instruc- tions compared to municipal laws. This however is not the meaning, nor would it be sound. By whatever municipal law the principal's lia- bility may have to be determined, it cannot be farther restricted by spe- cial terms concealed from the person who deals with the agent knowing him to be an agent : and in this, the Roman and general maritime laws figure only as the municipal laws of the countries which adopt them. 218. By some laws, as of Massachusetts, all acts done by an attorney after the death of his principal are nullities. " By the law of Louisiana, if an attorney, being *ignorant of the death or of the cessation of r^oA^-i the rights of his principal, should continue to act under his power, L J the transactions done by him during this state of ignorance would be valid. There is no doubt that an authority given to an agent is to be executed according to the law of the place where the business is to be transacted. But this may well be admitted to be the rule while the authority is in full force, without making the law of that place the rule by which to ascertain whether the original power of attorney is still subsisting. Some of the cases already alluded to may be thought to furnish an analogy unfavorable to the validity" (A) of the acts so done under it in Louisiana, after the death of the principal in Massachusetts. It would seem that the principal created against himself an obligation in the country, where he employed the agtent, t6 be pursued however against his heirs by the law under which they take his succession. (g) 3 Story, 475. (A) Story, s. 286, d. 134 'WESTLAKE ON PRIVATE INTERNATIONAL LAW. 219. These principles on agency afford perhaps the best insight into contracts made by correspondence. The comparision of a letter with a messenger is familiar in this subject, and will be made still clearer by observing that a messenger is esactly analogous with, in fact is, an agent employed by his principal to transact a particular business in the country into which he is sent. Now when the formal requisites of a letter for binding the writer, as with regard to the necessity of signature or the statement of the consideration, are in issue, these are comparable to the question discussed in Art. 213, on the disputed authority of an agent : and the decision there given, in favor of the law of the principal's domi- cile, as that of the agent's employment, coincides with that of Art. 178, referring the formal requisites of a letter to the place from which it is P^„„r-] sent. But when the letter is established as *against its writer, L J the contract concluded by it is one of the place where the assent is given by the correspondent, just as in Art. 212, we saw that a prin- cipal contracts through an agent in the place where the agent contracts. 220. These conclusions are chiefly operative in the contract of sale, where the warranty of title or quality involved, and the rights of rescis- sion and of lien for unpaid purchase-money, depend on the lex loci con- tractus : only here the farther question arises, which is perpetually meeting us on international obligations, between the places of final assent as that of celebration, and of delivery as that of fulfilment. In general these are the same, for the order comes from the purchaser, and is assented to by the vendor, who executes it by delivery to a carrier who is the purchaser's agent. But they may be different, as when the nego- tiation is opened by an offer from the vendor, or when the delivery is by agreement not to be complete till the goods reach the purchaser. These topics were much considered in Orcutt v. Nelson, an action in Massa- chusetts for the price of wine and spirits ordered, by a letter written in that state, from a dealer in Connecticut, and delivered in the usual manner to the carrier as the purchaser's agent.(i) The difi&culty arose from a Massachusetts statijte invalidating the sale of spirituous liquors, and not only the contract sustained as one of Connecticut, but it was said that the result would have been the same even had a delivery in Massachusetts been contracted for :(fc) an opinion which may be justified on the ground that it was not the delivery, but the sale, at which the r*90fi1 *statute in question struck. A case in which the locus eon- L -I tractus of the sale was not that of delivery is furnished by Territt v. Bartlett, which arose in Vermont on a similar law of that state, the liquor having been delivered at New York in pursuance of a contract made by the vender in person while travelling in Vermont : and the judgment was, on similar principles, against the validity.(^) (i) 1 Gray, 536. The facts were more complicated than here stated, but were reduced to this form by an interesting discussion, involving the principle that the ratification of a change in an order so relates to the original order as to incorpo- rate the change with it. {k) Ubi supra, p. 543. With reference to the application of Art. 199 to this case, it was stated that there was here no fraudulent view to a resale of the liquors in Massachusetts: p. 541. {I) 21 Termont, 184. INTERNATIONAL LAW OF OBLIGATIONS. 135 221. We have seen in Art. 193, that the legality of an insurance de- pends on the law of the place of business of the insurers, where the policy is granted, and the promise contained in such policy is to be exe- cuted by payment, if occasion arise, of the amount insured. But sup- pose the contract for the policy is made by correspondence, the proposals coming from a client in another country, the law of which forbids the insurance by foreign companies, or by such foreign companies, of pro- perty there situate ; and that the policy is either despatched to such client by post, or delivered to him at his home by the company's agent. This case has happened when New York mutual insurance companies have insured in Ohio or in Canada West, and their liability has been sustained at New York.(m) "When the application," said Justice Johnson, " was received and approved by the company, and the policy executed and put in course of transmission to the insured, the contract was complete, and both parties became bound, so that if a loss had occurred before its actual receipt by the insured, the company would have been responsible The validity of the contract is there- fore to be determined by the law of New York. Here it was made, and here it was *to be performed. "(ra) But it appears that the New [-^-5,^7-1 York company cannot recover in Canada West on a note given L -i there for the premium, as might have been expected, the legality of the consideration for such note depending on the law of the place where it was made.(o) 222. Let us now apply these results as to agency to the case of a part- nership en commandite suggested by Story, as mentioned in Art. 211. The general partner may, on the principles of Art. 220, so act as clearly to subject himself to the law of the country in which the goods are sold, as by giving the order through an agent of his established there for that purpose, and there receiving the goods. This is taking the case most strongly against the commanditaires. But even so, before the principles of the same article can be again applied to show that they also subjected themselves to the same law through the general partner as their agent, the authority given by them to him must be strictly examined : and since that authority, if they have not held themselves out as partners in the place of the sale, can only be deduced from the terms of their copartner- ship, it seems impossible to set it up at all without at the same time im- porting the limit to which the liability was restricted. 223. Suppose however a partnership of liability unlimited by any defi- nite amount of subscription, but existing in a country where its members are liable only for a proportionate share of each debt contracted by it. Will this restriction follow it, in contracting where partners are liable in (m) Hyde v. Goodnow, 3 Comstook, -266 — policy sent by post to Ohio : "Western v. Genesee Mutual Insurance Company, 2 Kernan, 258 — policy delivered by agent in Canada West. (n) 2 Kernan, p. 262. But Justice Marvin appeared to think the law of Canada West would have been important, if it had been before the court on proper proof, on account of the difference of the principles applicable to the for^gn operations of corporations and nrftural persons, noticed below in Art. 224. (0) Genesee Mutual Insurance Company v. Westman (Western?), imperfectly stated, in 2 Kernan, 259. 136 WBSTLAKE ON PBIVATE INTERNATIONAL LAW. r*9nRT ^olidum ? No, for there is here an unlimited mutual *agency of L J the partners, to contract for one another according to the local law of each transaction : or, supposing the contract to be made by an agent not a member of the firm, he is the agent for all the partners, each of whom subjects himself through him to the local law.(p) If, on the contrary, liability in solidum be the law of the country of the partner- ship, and liability for a proportionate share that of the place of the par- ticular contract, it seems difficult to give to the creditor a larger right against the partners than that for which he contracted, so that they will be responsible for their virile parts only.(j) These principles apply also to part owners of vessels used in trade. 224. But as cbrporations are persons in law, there can never in their case be any question of separate liability on the part of their members, supposing the corporate power of acting to be at all recognized extrater- ritorially. As to this, the following opinion has been expressed by Jus- tice Denio of New York : — " In respect to contracts made in another state, a corporation stands upon a difi'erent footing in some respects from individuals. As to the latter, the citizens of each state are entitled to all privileges and immunities of the citizens of the several states. This is secured by the national constitution. But corporations are not citizens in the sense of that provision. They are beings existing only in contem- plation of law, and have no other attributes than such as the law confers upon them ; and as the laws of a country have in general no extraterri- torial operation, a corporation cannot challenge, as a matter of right, the privilege of dealing in a country not under the jurisdiction of the sove- reignty which created it. Any of the states of the Union may, as this and several of the other states have done, interdict foreign corporations r*9nQn *f''°'^ performing certain single acts, or conducting a particular L J description of business, within its jurisdiction. But in the ab- sence of laws of that character, or in regard to transactions not within the purview of any prohibitory law, and not inconsistent with the policy of the state as indicated by the general scope of its laws or insti- tutions, corporations are permitted by the comity of nations to make contracts and transact business in other states than those by virtue of whose laws they were created, and to enforce those contracts, if need be, in the courts of such other states. It is of course implied that the con- tract must be one which the foreign corporation is permitted by its charter to make; and it must also be one which would be valid if made at the same place by a natural person, not a resident of that state. (Silver Lake Bank v. North, 4 Johns. Ch. 370 ; Bank of Augusta v. Earle, 13 Pet. 519 ; Mumford v. American Life Insurance and Trust Company, 4 Comst. 463.")(r) 225. In promissory notes and bills of exchange there is a conflict of laws as to the conditions necessary to call into play the guarantee of the drawer or indorser, namely, as to the necessity and form of a demand and protest, and as to what is sufficient notice of dishonor. " By the common (p) Story, s. 322. Ferguson v. Flower, 4 Mar. N. S. 312. {q\ Baldwin v. Gray, 4 Mar. N. S. \'J1. (r) In Bard v. Poole, 2 Kernau, 504. INTERNATIONAL LAW OF OBLIGATIONS. 137 law," says Story, "the protest is to be made at the time, in the manner, and by the persons prescribed in the place where the bill is payable. But as to the necessity of making a demand and protest, and the circum- stances under which notice may be required or dispensed with, these are incidents of the original contract, which are governed by the law of the place where the bill is drawn. They constitute implied conditions, upon which the liability of the drawer is to attach, according to the lex loci contractus ; and, if the bill is negotiated, the like responsibility y-ifn-,c^-i ^attaches upon each successive indorser, according to the law of L -I the place of his indorsement ; for each indorser is treated as a new drawer."(s) I cannot altogether agree with this doctrine. There is, no doubt, a sound distinction between the events on the occurrence of which the drawer or indorser undertakes to pay, and the notice given to him of their occurrence : but the making a demand and protest, when necessary by the law of the place of payment, should, I think, rank among the for- mer no less than the dishonor itself ; since, if these formalities be omitted, the drawer may be impeded in the exercise of his remedies against the acceptor. Besides, if the necessity of demand and protest were deter- mined by different laws for the drawer and the several indorsers, it might easily happen that one of those parties was made liable without being able to recover over from a previous one. A sounder rule therefore is that given elsewhere by the same author. "If a protest of a bill of ex- change, made in another state, is required by the laws of that state to be under seal, a protest not under seal will not be regarded as evidence of the dishonor of the bill."(<) But the sufficiency of the notice after completion of the protest, if any, may well be tested by the law of the place of drawing or indorsing, as a condition implied in the contract, and which a regard for the contractor's own security does not refer to any other law. The latter point is indeed well settled in America. One of the most recent authorities for it may be cited, because it at the same time asserts one of those exceptions which afford the clearest insight into rules, inasmuch as they spring out of their principles. I will give it in the words of Chief Justice Buggies. 226. " The defendant indorsed the notes for the *accommoda- r^om tion of the maker. This appears from the fact that the notes L -• came from the possession of the maker and not of the indorser, and were first negotiated in New York (the place where they were made payable,) and apparently for the benefit of Carew, the maker. So long as they remained in Carew's hands, there was no liability on the part of the indorser. The indorser's contract therefore must be regarded as having been made in New York, where the notes were delivered to Kyckman (who passed them to the plaintiff,) and the indorsement first became effective. The law of Michigan (where the indorsement was made) has, therefore, no application to the case. The contract having been made in New York, the law of New York governs the case as to the sufficiency (a) Conflict of Laws, s. 360. \i) Story, Conflict of Laws, s. 260, a; citing Tickner v. Roberts, 11 Louis. 14; and Bank of Rochester v. Gray, 2 Hill, N. Y. 227. 138 WESTLAKE ON PRIVATE INTBENATIONAL LAW. of the notice. "(m) In truth, the accommodation party to a bill of ex- change or promissory note makes that party to whom he lends his signa- ture his agent for putting the instrument in cirpulation, and his own contract with those to whom it is negotiated must consequently be judged on the principles of agency, which refer it to the place where the circu- lation commences. 227. Rothschild v. Currie was an action, on the dishonor of a bill drawn in France, against the payee who had indorsed it in England. (a) A delay in the notice arose solely from an inevitable delay in the protest, which was despatched to the defendant immediately on its completion, so that in my view the plaintiflf rightly recovered. The argument how- ever passing lightly over the necessity of the protest, which in England is not required on inland bills, appears to have turned mainly on the sufiBciency of the notice as from the date of the dishonor, a point on r*oio-i which, if the English law had been held to rule, the plaintiff L -I *must have failed. And the-court, taking the same view of the stress of the case, selected the French law for reasons to which I cannot assent, for they followed Pothier in considering that every question about a bill must be decided by the law of the place where it is payable, as that of the performance of the contract. Now even were this in general a true interpretation of the principle of the lex loci contractus, yet the place where the bill is payable is not that of the performance of the drawer's and indorser's contracts, since it is not there that they contract to pay, but in the respective places where they become parties to it, only on the occurrence of such events in the place drawn on as, by actuating their potential liability, may give occasion to a demand to be made on them where they severally affixed their names. (y) Story, determining the necessity of a protest by the lex loci contractus of the draVer or in- dorser, has objected to Eothschild v. Currie. (2) In the New York case of Aymar v. Sheldon, the necessity of a protest for non-payment, one for non-acceptance having been made, was determined against the indorser by the law of the place of indorsement : and the court looked in the face the probable consequence of its judgment, that the defendants might have to pay without recourse against the drawers, which it said was their fault for not having indorsed specially.(a) 228. We have now to consider the acceptor's contract. If the bill be payable in the place where it is accepted, his obligations will of course be governed by the law of that place ; and any equitable defence, or right of set-off, which he may by it enjoy against the holder, he cannot be deprived of on account of the bill having originated elsewhere. Thus, r*91 ^T ^'^ Burrows v. Jemino, it was held that the ^question whether L J an acceptance is avoided by the acceptor not having sufficient effects of the drawer in his hands at the time of the acceptance, must be decided by the law of the place of acceptance : and, the acceptance having been vacated by a court of that place, he was held discharged in wTcook V. Litobfield, 5 Selden, 279, 290. {x) 1 Q. B. 43 ; 4 P. & D. 737. y] See the judgment in Allen v. Kemble, 6 Mo. P. C. 321. z) On Bills, s. 296, note. (a) 12 Wendell, 439. INTERNATIONAL LAW OF OBLIGATIONS. 139 England. (6) Nay, the drawer and indorsers, as the acceptor's sureties, may use in their own countries the same pleas which he might found on the law of his acceptance. Thus, in Allen v. Kemble, bills haying been drawn and indorsed in Demerara, and accepted payable in London, the assignees of the bankrupt holder obtained in Demerara a judgment against the drawer and indorser for the full amount due on the securities, notwithstanding that the acceptor had a right of set-off against the plaintiffs by English law, which right could also have been made avail- able in the colony in proceedings against the acceptor — the objection to its validity in the actual suit being that by the Roman-Dutch law, which is that of Demarara, compensation only takes effect in cases of mutual debts between the parties to the action: but on appeal to the Privy Council the set-off was allowed. (c) The same case throws light on the question between the places of acceptance and payment, when these are different : for the bills, though drawn payable in London, were addressed to the drawee in Scotland, and there accepted by him payable in Lon- don. The latter therefore, said Lord Kingsdown, " being fixed as the place of payment, they are payable by the drawee according to the law of England : a different law is imported as regards the acceptor, but not as affects other parties."((f) *That is, the place of payment is p^„, ,-, completely substitued for that of acceptance, as to all questions >- J which depend on the law of the acceptor's contract, and which, as we have seen, sometimes mediately affect the drawer and indorsers; but the contracts of the latter parties, so far as they are independent of that of the acceptor, depend still on their own laws. Thus, if in Allen v. Kemble those parties had been able to claim a set-off against the assignees by the Roman-Dutch law, it would certainly have been allowed without refe- rence to the law of England. 229. It is impossible to exhaust the particular kinds of contracts. The instances given will enable the reader to form an opinion on those cases which have not yet come before our tribunals, or at least are not contained in their reports. But the following cases, which have mostly not been already mentioned, may be usefully brought together, as well for illustrating continental views of the matter, as because some of them which sound very foreign may find application in our system of equity. To the law of the contract belong every peremptory exception, for these only determine various forms and degrees of imperfect validity, and therefore cannot be referred to the laws of procedure, the more so as any attempt to distinguish them from the question of validity could only be carried out through such sharply defined thoughts and expressions as are often wanting in modern legislation :(e) but not herein the exceptions arising from the senatus consultum Macedonianum and sc. Velleianum, ,(!>) 2 Strange, Y33. (c) 6 Moore, P. C. 314. Lord Kingsdown said, (p. 323,) that the case must be decided according to the law of Demerara, by which was perhaps intended that that law itself would treat the appellants as sureties, liable only for what was due from their principal, though it must be confessed that this ground does not appear in the judgment. (d) 6 Moore, P. C. 322. (e) Savigny, v. 8, p. 270; opposing Fcelix, n. 100. 140 WESTLAKE ON PRIVATE INTERNATIONAL LAW. because these do not turn on the imperfection of the obligation in itself, but on the imperfect capacity of the parties, by the laws of whose domi- cile they must therefore be decided. Also every action by which a con- tract can be defeated : as the nullification of a sale for lesion above half r*91 flT ^^^ value, or through the redhihitoria *actio, or the actio quanti L "" -1 minoris : and every restitution against a contract producing an obligation, even when such restitution rests on minority, because, from the gradual development of that institution in the Roman law, it cannot be regarded as a simple consequence of incapacity, but as a remedy de- feating the obligation as such.(/) In sales, warranty, the right to re- scind either for simple change of mind or for non-accomplishment of conditions, and the risk of the articles perishing before delivery : in par- titions, warranty : in general contracts, the real or personal nature of the obligation ; whether co-contractors, co-sureties, or co-heirs of a contractor are liable in solidum or pro virili parte ; which party must pay the fiscal dues ; and accessory obligations, as the giving security. (^) Also all questions arising out of farming-leases, the place of execution, of which the law is decisive, being the situation of the immovable. (/i) To the accidental consequences of a contract, which produce their juristic efiect according to the law of the place where the events which occasion them occur, belong restitutio in integrum founded on non-performance, the duty of reinvestment of moneys repaid, and the confirmation or ratifica- of a null, defective, or rescindible contract. (t) The lex loci contractus governs an agreeement for discharging a mortgage on a foreign immo- vable. (y) 230. The last point on the material contents of obligation is the con- sequences arising from their breach, as to which the main principle is that the creditor must be reinstated in the same position in which he would have stood had the contract been duly executed in time and place. Let us consider these two points separately, and first as to time. T7e r=f=9iRn I'^ve already seen that interest ex mora is allowed *at the rate L J of the place of stipulated performance, or of that where perfor- mance ought to have been made, since it is there that the creditor has really missed the use of his money, and the rate of that place therefoi'e measures the damage actually incurred. To the authorities cited on this in Art. 206, may be added the opinion of Savigny,^^) and a case show- ing that the interest on damages from a tort is measured by the rate of the locus delicti, the principle being similar, for it must have been there that the means of the injured party were cramped by the loss.(Z) The same result follows from the principle which we saw in Arts. 166 and 167, that the nonperformance of a contract is a new fact, producing its juristic effects according to its own local law. For the place of such nonperformance is that where performance ought to have been, as has (/) Savigny, p. 272. See also pp. 164, 165. {y) Foelix, n. 109. (A) Foelix, n. 109, with Demangeat's note: Savigny, p. 281, who iu the same place asserts the same law for the vendor's right of repentance. (i) Pcelix, n. 109. (/) Campbell v. Dent, 2 Mo. P. C. 292, 30T. (k) System, &c., v. 8, p. 282. (l) Eldns T. East India Company, 1 P. W. 395 ; 2 Bro. P. C. 382. INTERNATIONAL IjAW OF OBLIGATIONS. 141 been expressed by Lord Langdale. " The nonpayment of the money when the bill becomes due is a breach in England of the contract which was to be performed in England .... and I think that the law of England, that is, the law of the place where the default has happened, must govern the allowance of interest which arises out of that default."(?>i) From this point of view also the doctrine is carried a step farther that it is taken by regarding the amount of damage as a matter of fact. For if the law of the place of default, as such, determines the juristic conse- quences of the breach of contract which has been committed there, then it will be for that law to say whether interest ex mora shall be given at a]l.(m) 231. And so clear is this that discussions have seldom been raised about it except on the question where a particular *obligation rjicn-iY-i ought to have been performed, which is one of municipal as much ^ '' J as of international law. I might perhaps say, never : but for an opi- nion of Lord Wynford, expressed indeed only at nisi prius, in an action on a Scotch judgment, rendered for the balance due to an agent in Scot- land from his principal in England. The question was whether the interest which the judgment had allowed could be sustained; and his lordship said, in disallowing that part of the claim, " as the contract (for the employment of the agent) was made in England, although it was to be executed in Scotland, I think it ought to be regulated according to the rules of the English law.'Vo) Story approves the decision, but on the ground that, though the agent's services were to be performed in Scotland, yet the principal was to pay the commission in England :(p) a ground perhaps not inconsistent with Savigny's reference of the contract of agency to the place where the defendant transacts afi'airs connected with it.(j) Advances are generally considered to be repayable where made, and therefore to carry the interest of that place :(r) but they have been held in Louisiana to carry the interest of the domicile of the prin- cipal for whom they are made, a rule which the court said accorded with the general mercantile opinion. (s) In the great case of Consequa v. Fanning, it was decided that the consignee of goods, who is to sell them and remit the proceds, performs his contract by putting the money on board the proper conveyance, even though the goods were *deli- r^niQ-i vered to his agent by the consignor at the latter's place of busi- L J ness.(<) But in both the higher and lower courts it was allowed that the rate of interest, in case of the consignee's default, depended on the place where his repayment would have been complete. (m) Cooper v. "Waldegrave, 2 Bear. 282, 285. {h) See Montgomery V. Bridge, 2 Dow & Clark, 29Y ; where however a conflict between the places of contract and performance did not arise for consideration. (o) Arnott v. Redfern, 2 Ca. & Pa. 88. (p) Sect. 292, note. (q) See above, Art. 105, (II.) So a factor is subject, as to the amount of his remuneration, to the law of the place of his employment : Pennant v. Simpson, 1 Knapp, 399. Yet that amount may carry the interest of the place where the principal has to pay it. (r) Grant v. Healey, 3 Sumner, 523, decided by Justice Story. See his Conflict of Laws, 3. 28'7. (s) Ballister T. Hamilton, 3 Louis. Ann. 401 ; cited in Story, s. 284, b. [t) 11 Johnson, 511, reversing Chancellor Kent's decision in 3 Johnson, Ch. 587. 142 WESTLAKB ON PRIVATE INTERNATIONAL LAW. 232. Next, to take the question of place alluded to in Art. 230. The creditor cannot call on the defendant to remit the amount of his debt to the country of the forum :(m) on the contrary, such sum only will be adjudged as, on being remitted to the country where the debt ought to have been paid, will produce that amount there. (a;) But what if the question of place become complicated with one of time, by a variation of the rate of exchange between the date when the debt fell due, and that when the action is brought? It is the latter period at which the ex- change must be taken, for the only fixed element is the amount owing in the place where the debt is payable, increased of course from time to time by such interest as may there accrue on it : what is due elsewhere fluctuates from forum to forum and from moment to moment, being always the sum which on being remitted will produce that amount. (,y) 233. In the last article, it has been assumed that the effect of consider- ing the exchange will be favorable to the debtor. But what if in the r*9lQT forum it require a larger *sum than the nominal amount of the L -1 debt, in order to produce, by remittance, the true amount in the place where the debt is due ? There is no reason why the same principle should not still be applied, the hardship to the debtor being only appa- rent, for it is but nominally that the sum he would have to pay would exceed that justly due from him : nor can there be any suspicion that the English courts would hesitate to apply the principle.(2) But the usual state of the exchange between Europe and America makes the question to be of most importance in the recovery of debts due to the former in the latter quarter of the globe. The courts of New York and Massachusetts allow no recovery but at the par of exchange, in any ease except on bills of exchange : but in the circuit court of the United States the actual rate is allowed, as we have seen that it is in Jamaica. (o) 234. The question of commission, when the debt is received by an agent, obviously depends on similar principles to that of exchange, and is thus treated by Lord Eldon. "Where a debt is contracted in Jamaica, and is therefore prima facie to be paid therCj it is obviously reasonable that, if the creditor lives in London, and his agent makes a demand upon the debtor where he resides, and he there pays the whole, he has paid the creditor when he has paid the agent ; and the expense of the transmission of the debt is between the creditor and his agent, the contract of the debtor being satisfied. But upon a security made payable in London, the creditor is in London to receive so much money, and the (m) Ekins v. East India Company, 1 P. W. 395 ; 2 Bro. P. C. 382 ; Delegal v. Naylor, 1 Bing. 460. (x) Scott V. Bevan, 2 Ba. & Ad. 78. (y) As to the precise time for talking the rate of exchange, Lord Tenterden, in Scott V. Bevan, (2 Ba. k Ad. 85,) referred generally to that current "at the com- mencement of the action, or for some time before or afterwards ;" but the note to the same case, (p. 86,) states that under an act of the Jamaica legislature, as to the recovery there of English debts, the colonial practice has fixed the day on which the execution is lodged, which seems more correct in principle. In Ber- tram T. Duhamel, 2 Mo. P. C. 217, it was said, "at the time the judgment is re- corded." (z) See Cash v. Kennion, as cited in the next article. (a) Story, s. 311, a. As to Jamaica, see above, note (y), p. 218. INTERNATIONAL LAW OP OBLIGATIONS. 113 person wto undertakes to pay must pay that money in England without deduction (of agent's commission :) otherwise he does not make good his contract.' V6) *235. To apply this to the damages on bills of exchange, we r^,r,^n-, must observe that the acceptor promises to pay where the bill is L "' J made payable, or, if no place of payment is named, at the known place of business from which he dates his acceptance. (c) He will therefore be liable to such interest ex mora as is given in that place. (f?) Also, failing payment by the drawee, the drawer and indorsers promise to pay, each in the place where he became a party to the bill, a full compensa- tion to the holder. Now the holder may if he pleases have recourse to re-exchange : that is, he may, from the place where the bill should have been paid by the drawee, draw another bill on the drawer or any of the indorsers, for the amount of the former one, increased by costs, and by the exchange, at the time of receiving the notice of nonpayment,(e) of the place on which he draws on that on which the old bill was drawn. Thus if a bill be drawn in London on Amsterdam, and be indorsed at Paris, the holder may, on its dishonor draw a new bill on the indorser for such a sum that, when negotiated at Amsterdam according to the current rate of exchange between that place and Paris, it may immedi- ately produce to him the amount of the former bill with his costs : or he may redraw on the drawer, for a sum to be similarly ascertained by the rate of exchange between London and Amsterdam. The amount for which the holder *may so redraw is clearly that of the debt which r-5,.n„, -, at the time of the notice of dishonor is due to him from the L J drawer or indorser in the place of drawing or indorsing-: it is that which if then paid him there would place him in the same position as if he had been duly paid the first bill in the place on which it was drawn. This then is the amount for which he must sue the drawer or indorser. 236. But if in the place of drawing or indorsing there exist a rule for determining such amount by a fixed proportion to that of the dishonored bill, "in lieu of interest, charges of protest, and all other charges incurr red previous to or at the time of giving notice of non-acceptance or non- payment,"(/) such rule is binding as a part of the local law of the (J) Cash v. Kennion, 11 Ves. 314, 315, 317. (c) But see Art. 190. In America, payment of a promissory note, which carries no place of payment on its face, is demandable at the maker's then residence or place of business when it becomes due, even though the maker have changed bis residence or place of business since the making, so it be still in the same state where the note was made : if the maker have no establishment in that state, or none known to the payee, the place of making is that of demand : Anderson v. Drake, 14 Johnson, 114 ; Hepburn v. Toledano, 10 Mar. 643. And the observance of these rules is necessary to charge the indorsers ; Jacks v. Nichols, 1 Selden, 178, 186. See also Peck v. Hibbard, 26 Vermont, 698, 702. (d) Cooper v. Waldegrave, 2 Beav. 282. (e) Denston v. Cairns, 13 Johnson, 322. (/) Revised Statutes of New York, in Bouvier's American Law Dictionary, Art. Damages on Bills of Exchange ; where also the other fixed rates here mentioned will be found. It was determined by a very narrow majority that the old New York rate of twenty per cent, was not inclusive of the exchange ; Graves v. Dash, 12 Johnson, 17. And the same holds now, if the bill be expressed in foreign money, when the exchange " at the time of the demand of payment" will be added, besides the ten per cent. " upon the principal sum specified in the bill ;" but if the 144 WESTLAKE ON PRIVATE INTERNATIONAL LAW. drawer's or indorser's contract. Thus in Maryland the damages on bills on Europe are fixed at 15 per cent., in Pennsylvania at 20, and in New York at 10. Suppose a bill drawn in Maryland on England, and suc- cessively indorsed in the other states named : the holder, on its dishonor, for every 100 dollars of its amount may sue his immediate indorser in New York for 110, the previous indorser in Pennsylvania for 120, or the drawer in Maryland for 115. And if the suit be brought elsewhere, it must be as for a debt of such respective amount due in the state of the drawing or indorsing, on the computation pointed out in Arts. 230-233. (^) And the sum *which each indorser can recover over from the L "'J drawer or any previous indorser will be correspondingly limited, so that though the first indorser pay 120 dollars in Pennsylvania, he will only receive 115 from the drawer in Maryland. (7i) 237. Delicts. — Every authority which traces the force of a contract, or of an obligation quasi ex contractu, to the local law under which the agreement or the act is made or done, must of course be of equal avail to trace the obligation arising from a delict to the local law under which it is committed. The same conclusion follows from the generally recog- nized forum delicti, combined with the considerations which in all cases assert the law of the proper jurisdiction as that which must be applied if the cause emerges elsewhere. Thus we have see'n that the interest given byway of damages depends on the locus delicti ;[ii\ and in Caldwell V. Vanvlissengen, a Dutchman was held liable for the infraction in Eng- land of an English patent,(/i;) a case however the point in which, inas- much as the locus delicti was there also the forum, is of less value than the broad terms in which the principle was laid down. Natural justice, said Sir George Turner, required the provisions of the stat. 32 Hen. 8, e. 16, s. 9, which enacted " that every alien and stranger born out of the king's obesianoe, not being denizen^ which now or hereafter shall come in or to this realm or elsewhere within the king's dominions, shall, after the 1st of September next coming, be bounden by and unto the ^^^^ laws *and statutes of this realm, and to all and singular the con- L ^^' J tents of the same." 238. But we shall expect to find that the view by which private in- ternational jurisprudence is based on the freely willed subjection of the parties, and not oq the territorial authority of law, is incompatible with the conception of an obligation so deeply imprinted by the lex loci of a delict that it may be enforced elsewhere. Accordingly Savigny refers delicts entirely to the lex fori, being farther influenced thereto by the bill be expressed in United States money, the exchange will not be reckoned: Bouvier, ubi supra, New York. (ff) So that the rate of interest will also be that of the place of drawing or in- dorsing: Gibbs V. Fremont, 9 Exch. 25. But see Pecks v. Mayo, 14 Vermont, 33, where after two arguments the court decided by a majority that the indorser of a note was liable to the interest of the place where it was made payable, forgetting that the amount due in that place is fixed once for all when the note is dishonored, the subsequent delay occurring where that sum should then have been paid by the indorser. (A) Story, s. 314. — See, on this article, Francis v. Rucker, Ambl. 672. (i) Ekins v. East India Company, 1 P. W. 395; 2 Bro. P. C. 382. (/c) 9 Hare, 415. See particularly pp. 425, 426. INTERNATIONAL LAW OF OBLIGATIONS. 145 stringent moral end of the laws which redress them. I fail however to see clearer proofs of such an end in the redress of most torts than in that of a breach of contract : and, were this difficulty got over, though it is true, as before remarked, that the morality of a legal system must prevent the admission of foreign claims which might subvert it, it re- quires to be explained how it can confer the right of extending its own penalties to acts which have been committed in the empire of another law. " This question," says Savigny, " has been in no class of obliga- tions so frequently mooted, doubted, and disputed, as in those flowing from seduction and adultery If then such a claim is urged before a court which stands under the French law, it must be rejected, even when the intercourse has taken place at a spot of which the law permits and favors such a claim.". (Z) So far the doctrine may be admitted, as demanded by the excluding force here, and in Art. 196, attri- buted to 'the morality of a jurisprudence. The investigation to which the suit would lead cannot be made where the law regards it as too foul. 239. But it is more questionable, when the same jurist proceeds to say that " conversely must such a claim be admitted by the court of a spot of the latter kind, even *when the intercourse has taken r;):r)9i-i place at a spot under the French law. And what holds here for L "^ J . the extreme opposition of unconditional rejection or admission, must be similarly asserted when the several local laws diverge in a less degree, as in the conditions or scope of the claim. The decisions of the courts on this question are very various. For the forum, which will in general^wi) coincide with the defendant's domicile, the superior court of Stuttgart has pronounced : for the locus delicti, the supreme court of appeal of Munich, and two judgments at Jena It follows from the above principles that in such cases an important power will often be placed in the hand of the plaintiff, who often has the choice of several jurisdic- tions, and so can determine which of several local laws shall be applied. But this is the inevitable result of the peculiar nature of this class of laws. Also the danger for the defendant is diminished by the very restrictive conditions to which the special forum of every obligation is bound. "(m) 240. With respect to the actual place of a delict, " it has been deter- mined in Ohio that an action on the case, for diverting water from the plaintiff's mill situated in Ohio, might be sustained in the courts of that state, although the act of diversion took place in another state. "(o) Yet the legal character- and consequences of an act must certainly depend on the jurisprudence of the country where it is done, and not on that of any spot to which its consequences may extend. The damage is not an injury, (l) Syst. d. h. Rom. Rechts, v. 8, p. 279. The lex fori was repudiated in Cope V. Doherty, as inapplicable to torts : 4 K. & J. 367, 384. (m) Observe, not always, so that this is not Savigny's reason. (n) That is, the alternative of the defendant's personal presence or possession of property there, as necessary for the forum delicti as for the forum contractus. See above. Art. 109. (o) Thayer v. Brooks, 17 Ohio, 489, thus shortly stated in the 7th edition of Story's Conflict of Laws, s. 554. January, 1859 10 / t^ 146 WBSTLAKB ON PRIVATE INTEEN ATIONAL LAW. unless it results from conduct prohibited by the law which governs the agent. [*225] *3. Transfer of OUigations. 241. If an obligation be not assignable in its inception, it is clear that no private attempt to assign it, to which he is not a party, can give a title against the debtor, and even its public assignment by the bankrupt law of the creditor's domicile will not enable the assignee to sue on it, in a country where choses in action are not assignable, otherwise than in the creditor's name.(p) 242. If an obligation be assignable in its inception, the assignee may sue on it, and in his own name, even in a forum by the proper law of which choses in action are not assignable ; for the promise or duty of the debtor was, from the first, to the contingent series of assignees no less than to the original creditor. This is equally true, whether the original assignability existed by the peculiar law of the obligation, as in the case of Irish judgments made assignable by an Irish statute,^^) and in that of a Scotch bond :(r) or by the terms of the obligation, notwith- standing that no effect would be given them by its peculiar law, as when a note is made payable to order in a country where notes are not nego- tiable, and is indorsed in another country where they are negotiable-(s) For, in the last case, the maker must be considered as having waived by his original contract the privilege he might have had of being sued only at the option of the payee, and the right of the latter is excluded by his own negotiation made in a country where that is effectual. And what is thus true of the general question of assignability is equally so of the r*99fj-i conditions under which it exists. Thus if a promissory note *is L J made payable to bearer, in a country where a hona fide transfer for value confers a good title to a stolen note, the maker's liability to a bearer who satisfies the large conditions thus implied is a part of his con- tract from the first, and if the note be stolen and transferred hona fide for value in another country, it will not be necessary to inquire what the effect of such transfer would be by the law of the latter locality.(<) On the other hand, if the maker, by the law of the place of making, may set up any equitable defence against a hona fide indorsee which he could offer against the payee, he will retain the same fapulty notwithstanding an indorsement in a state where such is not the law.(?() 243. Suppose that the obligation is assignable, but that there is a con- flict of laws as to the proper form of an assignment, or as to its substan- tial validity. Between the original creditor and the assignee, the general principles as to contracts show the just rule to be the law of the place of assignment : and that rule imposes no hardship on the debtor, whose {p) JefFery v. M'Taggart, 6 M. & S. 126. (q) O'Callaghan v. Thomond, 3 Taun. 81. (r) Innes v. Dunlop, 8 T. R. 595. (s) Lodge T. Phelps, 1 Johns. Ca. 139; 2 Caines, Ca. in Error, 321. Q\it,per curiam in the same case, the maker may use against the assignee all the defences which by the law of the place of making he could have had against the payee. U) De La Chaumette v. Bank of England, 2 Ba. & Ad. 385. (m) Ory V. Winter, 4 Mar., N. S. 27Y. See also Lodge v. Phelps, ubi supra. INTERNATIONAL LAW. OF OBLIGATIONS. I47 interests are equally liable to be afifected by an assignment under any law. Thus where a bill of exchange, drawn in the state of New York on Massachusetts, in pursuance of a written authority and promise to accept by the drawee, was purchased in the former state by a banker there, and made payable to his cashier, in an action in Massachusetts against the drawee the banking-law of New York was referred to, appa- rently for the purpose of showing that on such an assignment of the defendant's promise the batiker could sue in his own name. But in the same case the previous question, whether the defendant's promise was negotiable at all, was decided by the law of Massachusetts, where it was given, (a;) 244. There is a conflict of laws on the necessary form *of rit:c,:^<—i indorsing promissory notes and bills of exchange, an indorsement L J in blank not being allowed in France. (?/) The point between the places of making and indorsement did not arise in Trimbey v. Vignier, in which both had been done in France, and the court accordingly, while rejecting the lex fori, did not explain whether it rested its judgment for the defendant on the law of France as that of the original contract, or as that of the attempt to assign it.(«) But the principles above main- tained would command the universal assent of foreign jurists, on the ground that locus regit actum, and are supported also by the cases which decided that foreign notes were made negotiable here by the English statute 3 & 4 Anne, c. 9 : since the law which can confer negotiability may also prescribe the form of negotiation. (a) Also, if the holder of a negotiable security dies, and a personal representative is duly appointed to him in his domicile, so as to be the legal transferee of the security in the place of the asserted transfer, our principles would show that the latter, or his indorsee, can sue the foreign drawer or maker, without taking out administration either in the forum or in the country of the *original contract. And this, in cases where the two latter i-jisnoo-i coincide, as indeed they usually would, has been decided by the l J supreme court of the United States,(6) as well as by the latest judgment of the court of Maine, overruling its former doctrine on the point, (c) {x) Barney v. Newcomb, 9 Gushing, 46, 53, 54. (y) Code de Commerce, Arts. 137, 187. (z) 1 Bing. N. C. 151 : 4 M. & Sc. 695. If we remember tbat the maker's pro- mise was always a negotiable one, the following remarks of Chief Justice Tindal, though valuable for their general principles, seem applicable to the French law in either character. " We think the French law on the point above mentioned is the law by which the contract is governed, and not the law which regulates the mode of suing. If the indorsement has not operated as a transfer, that goes directly to the point that there is no contract upon which the plaintiff can sue. Indeed, the difference in the consequences that would follow, if the plaintiff sues in his own name or is compelled to use the name of the former indorser as the plaintiff by procuration, would be very great in many respects, particularly in its bearing on the law of set-off:" 1 Bing. N. C. 160; 4 M. & S. 705. (a) Pollard v. Herries, 3 Bos. & Pul. 335 ; Splitberger v. Kohn, 1 Star. 125 ; Milne v. Graham, 1 Ba. & Cr. 192 ; Bentley v. Northouse, M. & Mai. 66: over- ruling Carr v. Shaw, Bayley on Bills, 6th edit., p. 28. Of course our law could not have given effect against the maker to an indorsement here of a note not nego- tiable where made. (J) Harper v. Butler, 2 Peters, Sup. Co. 239. (c) Barrett v. Barrett, 8 Greenleaf, 353 ; supporting the doctrine of Story, s. 359, in opposition to Stearns v. Burnham, 5 Greenl. 261. 148 WBSTLAKE ON PRIVATE INTEKNATIONAL LAW. 245. It must here be observed that though a contract be illegal, yet if benefit be actually derived from it, either through the debtor's sense of honor preventing him from setting up the illegality, or by any other means, an assignment of that benefit, made even prospectively, to a per- son whose conduct has not been tainted with the original illegality, even though he may be cognizant of all the circumstances, will be supported as between the assignor and assignee. This is a rule of municipal law also, a leading case on the principle of which is Thomson v. Thomson, (rf) and it is the same principle that Lord Cottenham considered himself to follow in Sharp v. Taylor :(e) but I mention it here because, in an im- portant American case,- it has been applied to the assignment of a con- tract which was void itself as made to promote insurrection in a foreign and friendly state, under the doctrine of Art. 199. (/) The conduct of the assignee was here untainted by the illegality, because the Mexican insurrection was complete, by the achievement of acknowledged inde- pendence, before the assignment, though the Mexican government did not discharge the claims on it till afterwards. It seems almost super- fluous to remark that an assignment, however good between the parties to it by its own local law, or unconnected with the illegality affecting r*99Qn ^^^ contract *assigned by its local law, cannot avail to give the L -I assignee a claim upon that contract against the original debtor which the assignor could not have enforced. ((/) 4. Extinction of Obligations. 246. The primary manner in which an obligation may terminate is by its due fulfilment, or, failing that, by satisfaction of the damage : as to which there is only to be said that, in case of dispute as to the fact, it must, like any other fact, be proved by such evidence as the lex fori ad- mits in general, without requiring such special evidence as that law may require of the fulfilment or satisfaction of obligations contracted in its own sacramental forms. Thus, if in A. payment of a debt contracted in writing can only be proved by written evidence, or in B. that of a • debt contracted under seal only by evidence under seal, yet payment of a debt contracted in A. in writing, or in B. under seal, may be proved elsewhere by witnesses : and, conversely, payment of a debt contracted by sealed writing out of A. and B. may be provable in either of those countries by witnesses, though not by such witnesses whose testimony is inadmissible in the forum on grounds unconnected with the mode of contracting the obligation. The locus contractus must be also the forum, (d) 1 Ves. 470. (c) 2 Ph. 801. See above, Art. 202. (/) M'Blair v. Gibbes, 17 Howard, 232. See also Chief Justice Taney's remarks in pp. 268, 269. [g) Yet in Thatcher v. Morris, 1 Kernan, 437 — an action in New York against the contractor in a Maryland lottery, for the prizes drawn by tickets bought by the plaintiff after the drawing— the marginal note, countenanced by some expres- sions of Chief Justice Gardiner which are probably insufficiently reported, attri- butes the plaintiff's failure to his not showing that he purchased the tickets in a state where lotteries are lawful. The true point, as taken by Justice Allen, was in what state the defendants' promise to the plaintiff's vendor was made. INTERNATIONAL LAW OF OBLIGATIONS. 149 in order to necessitate any special mode of proving the payment; and the lex loci contractus must coincide with the lex fori, in order pnly to justify it: These principles can cause no difficulty to any *one p^nqnn who reflects that the obligation is by universal jurisprudence L J actually extinguished by the payment; and that neither, on the one hand, if the lex loci contractus shuts its eyes to the fact of its extinc- tion, can that justify the judges of a different forum in doing the same thing ; nor on the other, if the lex fori chooses to fence round with peculiar peril what may be called its own sacramental forms of contract- ing, is it bound to make defendants pay twice out of respect to the sacra- ments of a foreign law, though certainly from comity it may do so. But these truths have been strangely perplexed, by confounding the case with the totally distinct one of an obligation dissolved without being ful- filled or satisfied, so that the law of the place of payment has been brought into the discussion. (A) 247. Supposing then that the obligation is neither fulfilled nor satis- fied, it may be dissolved by the consent of the parties, or by the free act of the creditor; either of which, being a new contract or quasi-contract, will be subject, as to its formal and material requisites, to the rules in- vestigated in the first two sections of this chapter. And this is the true application to the subject of the principle that unumquodque dissolvitiir eodem modo quo colligatur. 248. Farther, all contracts carry with them from the beginning a lia- bility to dissolution upon the happening of more or fewer contingencies, of which a certain lapse of time is always one, the right of either of the parties to rescind the contract, either generally within a limited period, or on the occurrence of certain conditions, may furnish another, and so on. Now this liability is a part of the vinculum juris existing between the parties, and to take the obligation without it would be, while nomi- nally referring to the proper law of the contract, to take in fact a more stringent tie than that law ever created. "If," said Lord r-ifoo-i-i *Brougham, expressing the views both of this and of the last L J . paragraph, "a contract for sale of a chattel is made, or an obligation of debt is incurred, or a chattel is pledged in one country, the sale may be annulled, the debt released, and the pledge redeemed, by the law and by the forms of another country in which the parties happen to reside, and in whose courts their rights and obligations come in question ; unless there was an express stipulation in the contract itself against such avoid- ance, release or redemption. But at any rate this is certain, that if the laws of one country and its courts recognize and give effect to those of another in respect of the constitution of any contract, they must give the like recognition and effect to those same foreign laws when they declare the same kind of contract dissolved. Suppose a party forbidden to pur- chase from another by our equity, as administered in, the courts of this country (and we have some restraints upon certain parties which come very near prohibition ;) and suppose a sale of chattels by one to another party, standing in this relation towards each other, should be effected in [h) Story, B. 351 a, 633. 150 WESTLAKE ON PRIVATE INTEENATIONAL LAW. Scotland, and that our courts here should (whether right or wrong) recognize such a sale because the Scotch law would affirm it ; surely it would follow that our courts must equally recognize a rescission of the contract of sale in Scotland by any act which the Scotch law regards as valid to rescind it, although our own law may not regard it as sufficient. Suppose a question to arise in the courts of England respecting the exe- cution of a contract thus made in this country, and that the objection of its invalidity were waived for some reason : if the party resisting its exe- cution were to produce either a sentence of a Scotch court declaring it rescinded by a Scotch matter done in pais, or were merely to produce evidence of the thing so done, and proof of its amounting by the Scotch r*9^9T '^^ ^^ ^ *rescission of the contract, I apprehend that the party L J relying on the contract could never be heard to say : ' The con- tract is English, and the Scotch proceeding is impotent to dissolve it.' The reply would be, ' Our English courts have (whether right or wrong) recognised the validity of a Scotch proceeding to complete the obligation and can no longer deny the validity of a similar but reverse proceeding to dissolve it — Unumquodque dissolvitur eodem tnodo quo colligatur.' Suppose,' for another example, which is the case, that the law of this country precluded an infant or a married woman from borrowing money in any way, or from binding themselves by deed ; and that in another country those obligations could be validly incurred : it is probable that our law and our courts would recognize the validity of such foreign obli- gations. But suppose a femme cocerte had executed a power, and con- veyed an interest under it to another femme coverte in England ; could it be endured, that where the donee of a power produced a release under seal from the femme coverte in the same foreign country, a distinction should be taken, and the court here should hold that party incapable of releasing the obligation ? Would it not be said that our courts, having decided the contract of a femme coverte to be binding when executed abroad, must, by parity of reason, hold the discharge or release of the femme coverte to be valid, if it be valid in the same foreign country ?"(i) 249. As a first instance of the liability to termination inherent by the lex contractus, I may mention merger in another cause of action, the occurrence of which will therefore be determined by the law of the former cause. (^) 250. Another instance is furnished by the prescription of the lex p-j-oqo-i ^oci contractus, which belongs entirely to what *may be called L -I the modality of the obligation. (?) The opinion which refers this (i) In Warrender v. "Warreuder, 9 Bligh, N. R. 125 ; 2 CI. & F. 544. (k) Bryans v. Dunseth, 1 Mar., N. S. 412. (1) Hertius, de Coll. Leg., s. 4, § 65 : Savigny, v. 8, pp. 273, 274; who cites on the same side a judgment given in 1843 by the court of revision at Berlin, as well as numerous recent German writers: and the uniform current of modern French decisions, alleged byFoelix, u. 100, and by Demangeat, in his note on that passage in the posthumous edition. On the other side are P. Voet, de Stat., s. 10, c. 1, n. 1, 2 : Huber, de Oonfl. Leg., s. 1 : and Story, with a positiveness quite unusual with him, s. 576, et seq. The older French authorities will be best seen in Foelix, n. 100, as the effect of what is said by BouUenois and Pothier is a little overstated by Story on his side. That French jurists should assert the law of the debtor's domicile was likely, as the forum contractus was not originally received in France ; ■INTERNATIONAL LAW OF OBLIGATIONS. 151 question to tlie lex fori, as one of procedure, rests on two fallacies. First, " the argument that the limitation is of the nature of the contract supposes that the parties look only to the breach of the agreement. Nothing is more contrary to good faith than such a supposition.'Ym) ^ But this is to confound the interpretation of the contract with the ope- ration on it of the lex loci contractus. After the detailed exposition already given of the difference between these, in Arts. 187-189, I need only add that I am not acquainted with any writer on this subject who has treated them as identical in theory, though of course many questions arise in practice as to the points which belong to each. Secondly, " it is said that by the law of Scotland" — the lex fori, Which it was proposed to apply as governing the remedy — « not the remedy alone is taken away, but the debt itself is extinguished. I do not read the statute in that *manner The debt is still supposed to be existing r^^o i-i and owing."(ra) There is however little or no meaning in saying L "" -I that a debt subsists which cannot be recovered. The law may preserve a memory of the circumstances out of which it arose, in order to justify the late creditor in retaining its amount if he can get it, but in the mean time he has no right, for a right is only a faculty of putting the law in force. There is nothing therefore at bottom, in any statute of limitations, but an essential modification of the rights created by the jurisprudence in which it exists, and which is therefore incapable of a just application to rights created by the jurisprudence of another country. The rule here advocated is also, as Savigny remarks, the most reasonable, because it excludes both the arbitrary power of the plaintiff to choose between competing forums that which allows the longest term of prescription, and the arbitrary power of the defendant to defeat his creditor by re- moving his domicile to the forum which allows the shortest term, and avoiding, while it runs, personal presence in the special forum of the obligation. 251. The lexforihas, however been established as the Scotch inter- national rule on prescription by two decisions of the highest authority. In Campbell v. Steiner the court of session had declared for the lex loci contractus, but, on appeal, Lord Eldon moved the judgment of the House of Lords in favor of the lex fori, because it had been ruled that, where the merchant creditor resided in England and his debtor in Scot- land, he might plead the Scotch prescription. (o) His lordship unfor- tunately did not perceive that in most of the cases which he thus de- scribed the locus contractus would coincide with the/oram. In r^^nQK-i Don y. Lippmann a similar judgment was *moved by Lord L J it is therefore at least as much as we could expect, when we find Boullenois, Par- dessus and Troplong maintaining the prescription of the place of execution named by the parties, in doing which they clearly lead the way to the present French ac- ceptance of the European doctrine, to which Foelix himself inclines in principle. It will be considered in the next paragraphs how far the American doctrine is re- ceived in Great Britain. (m) Lord Brougham, in Don v. Lippmann, 5 CI. & F. 16. The debt is similarly said to be left existing by the English statute, and by others in pari materia. (b) See note (m). (o) 6 Dow. 116, 134. 152 WBSTLAKE ON PKIVATB INTERNATIONAL LAW. BroughamYj)) and an opinion to the same effect has been expressed by Lord Cottenham in the Scotch case of Pergusson v. Fyffe.(2) 252. The English cases are The British Linen Company v. Drum- mond,(r) and Huber v. Steiner.(s) In the former, Lord Tenterden in- clined to the lex fori, on the authority of Huber and (as alleged) of John Yoet, but with a hesitation grounded on the old Scotch law, as it stood before the appeal in Campbell v. Steiner, which was not quoted to him. The point was not pressed to a decision, but, had it been so, and the whole literature of the subject presented to his lordship, it is probable that, sitting as an English judge, he would have held the general con- sent now arrived at in Europe to outweigh the decision of the House of Lords On that Scotch appeal. He actually considered himself to follow the general European doctrine as opposed to the particular Scotch, and we' may suppose that, on an international question, he would have been prepared to do the same, had he known that each was the reverse of what he thought it. In the latter case the lex fori was adopted, chiefly it seems on Story's authority, from whom also a distinction, not arising on the facts, was cited with approval. It was, that the prescription of the lex, loci contractus will extinguish the claim, if " the parties are resi- dent within the jurisdiction (of that law) during all that period, so that it has actually operated upon the case :" then this part also of the lex loci contractus would go ad valorem contractus, ad dedsionem, litis. It would be intelligible that the law of any country, in which the parties have both been domiciled during the whole period of prescription fixed by it, should be held to extinguish *the right, on the ground of L J its having had them both for its subjects :(<) but I do not under- stand why this should be asserted of the lex loci contractus more than of any other law ; nor how the question, whether the lex loci contractus is effectual to mould the essence of an obligation, can depend on sub- sequent events, when the efi&cacy of that law cannot be sustained at all except on principles which exhaust it at the moment of contracting, although indeed, which is an entirely different matter, that law, if it be efficacious, may create at that moment obligations dependent oq subse- quent conditions. The whole subject is still open for the higher Eng- lish tribunals. 253. In the cases of merger and proscription, we have had to consider the manner in which the vinculum juris is moulded by such general provisions of the law which creates it, as are immediately applicable to the particular obligation itself. But the same law may contain general provisions concerning debtors personally subject to it by domicile, under (p) 5 CI. & F. 1. (q) 8 CI. & F. 140. (r) 10 Ba. & Or. 903. (a) 2 Scott, 304; 2 Bing. N. C. 202. (i) See above, Art. 157. In Ruckmaboyne t. Mottichund, 8 Moore, P. C. 4 : 5 Moore, I. A. C. 234, the principle of the law common to the parties was held not to include terms of prescription, so that the English term was applied between Gentoos, notwithstanding the rules contained in the Indian charters of justice, as to which see above, Art. 153. The reason given was that the question was one of procedure, but the weight of the authority was, as usual, impaired by the igno- rance that a serious doubt existed. " It has becoipe almost an axiom in jurispru- dence, &c. INTERNATIONAL LAW OF OBLIGATIONS. 153 which they may obtain certificates discharging them^ as bankrupts or in- solvents, from all personal liabilities. Suppose the debtor either to be at the time of the contract domiciled in the forum contractus, or, for that appears to make no difference, to become domiciled there during the continuance of the obligation, and then to obtain his discharge in that forum under its law of bankruptcy. Suppose also that, through another change of domicile, or through happening to be, or to possess goods, in a country where the principles on jurisdiction ^ar^ lax, r-i^^o'r-x he is yet sued on the obligation : will the discharge be avail- L J able ? It is not indeed such an extinction of the obligation by the lex loci contractus as those we have dealt with, but it is a discharge of the debtor by the authority of the same law, or sovereign, which, or who, bound him : and if that authority is recognised for the latter purpose, why not also for the former ? The plaintiff cannot object that the exer- cise of discharging authority founds a plea which is ex post facto aB re- gards his right, because the exercise of such authority must be con- sidered as always reserved by a sovereign whose code includes a law of- bankruptcy, whenever he imposes an obligation on a contract. It has accordingly long been settled by the English cases that an obligation is extinguished by a discharge of this nature under the laws of the country of the contract.(M) Of course, to have this international effect, the dis- charge must be a complete one from the debt in the country where it is given, and not merely protect the person from incarceration, or exempt special classes of effects from seizure, as tools or wearing apparel. (ij) 254. There does not now exist in the United States any general bankruptcy law, and those which have been established in many of the several states have been adjudged to impair the faith of contracts, con- trary to the constitution of the Union. Hence it was a great question how far discharges of obligations, under such laws existing in the coun- tries where they were incurred, could be received, and an inclination was shown, the history of which is traced through the cases by Story, to limit their reception by the condition of the creditor also being a domi- ciled *subject of the sovereign authority which gave the dis- r^ooo-i charge, in which case it would be sustained on the principle of L -■ the law common to the parties. (a;) In the recent case of Peck v. Hib- bard it has however been fully laid down, on a review of the decisions, that the discharges in question, when granted by jurisdictions foreign to the Union, will be held universally valid therein : but that, when granted under the insolvency laws of the states of the Union, they will not be held valid against plaintiffs whose title accrued before the date of the defendant's application for tSe discharge, unless such plaintiffs were at that date citizens of the same state with the debtor, in which case the constitution of the Union cannot interfere between them : while even the' latter discharges will be held valid against plaintiffs taking, as by («) Ballantine v. Golding, 1 Cooke's Bankruptcy Laws, p. 347, 5th edit. It was thought an open question in Pedder v. Maomaster, 8 T. R. 609 ; but again decided in Potter v. Brown, 5 East, 124, which has been followed by Quelin v. Moisson, 1 Knapp, 265, note. {v) Exp. Burton, 1 Atk. 255. {x) Story, s. 340. 154 WESTLAKE ON PRIVATE INTERNATIONAL LAW. the indorsement of a promissory note, after the date of the defendant's application. (^) 255. As between the members of the Union, then, this case settles the law as laid down in Braynard v. Marshall, where, though both the maker and payee were citizens of the state where the note was made and the discharge obtained, the maker was still held liable to the citizen of another state who had taken by indorsement previous to the proceedings in insolvency.(2) And it is hard to see how any other conclusion could have been arrived at, under the constitution of the Union, interpreted as proscribing discharges of bankrupts. " The promisor," said Chief Justice Parker, " became, immediately upon the indorsement, the debtor to the indorsee, who was not amenable to the laws of New York, where r*9'^QT ^^^ application *was made for relief under the insolvent law. "(a) L -I But, as a wider doctrine of public law, applicable beyond the United States, the same case has followed the strictures made on Bray- nard V. Marshall by Story, who, observing that the indorsement does not 'create a new contract between the maker and the indorsee in the place of the indorsement, justly contends that the maker's discharge by the original lex loci contractus of the note must avail him against the holder under a negotiation effected in a foreign country. (6) 256. But will effect be given internationally to a discharge by the bankruptcy law of any other country than that of the contract, as if the debtor, not being domiciled in \he forum contractus, becomes bankrupt in the jurisdiction to which he is personally subject, and is afterwards sued in the forum contractus, or elsewhere ? There seems to be no juristic principle which compels an affirmative answer, and Story very positively gives a negative one :"(c) but the case is eminently one for the application of comity, between those nations which have instituted such discharges in their respective systems of law. They cannot mutu- ally object to their justice, though in other countries these discharges may be considered as imparing the faith of contracts : and, when their international validity has once been established to this extent, for which there appear to be precisely the same motives which recommend such discharges to the public opinion of trading countries at all, the maxim that they are granted by the jurisdiction of the debtor's domicile becomes a part of the knowledge with which men are presumed to contract. '"*9im -^^^ there *seems to be some advance towards the establishment L J of this comity. In the older cases, it was held that when the plaintiff was a British subject, and the debt was contracted here, a dis- charge under a foreign bankruptcy was unavailing :((Z) and in applying {y) 26 Vermont, 698. The promissory note in the case was payable where made, but the validity of the discharge jras expressed to be founded on the law of that place as the place where it was payable. (z) 8 Pickering, 194. [a] P. 197. See also Donnelly v. Corbett, 3 Seld. 500 ; Scribner v. Fisher, 2 Gray, 43. (A) Conflict of Laws, ss. 344, 345. These strictures were extended by Story to the case even as it actually arose under the constitution of the Union. (e) Sect. 342. {d) Smith v. Buchanan, 1 East, 6. Why this repeated reference in these cases to the plaintiff's nationality, which seems contrary to the equal footing on which INTERNATIONAL LAW OF OBLIGATIONS. 155 this rule, an Irish, hankruptcy(fi) was held a foreign proceeding here, as an English bankruptcy was in the application of a similar rule in Scot- land. (/) Next, a discharge under a Scotch sequestration was held in England to bar an English debt, on the ground that it was founded on an act of the parliament of the United Kingdom, an authority compe- tent with regard to English plaintiffs and transaetions.(^) Finally, it was determined by the Privy Council, on appeal from the supreme court at Calcutta, that the certificate under an English bankruptcy barred an actioQ for a debt contracted by the bankrupt at Calcutta, though the creditor was resident at Calcutta and had no notice of the commission of bankrupt. (A.) 257. I have in the last paragraph considered the suit as not brought in the forum of the discharging law ; but there is an obvious connection between the question there discussed, and that of what debts the bank- ruptcy law is to be considered in its own forum as intended to discharge. Story appears to suppose that, in the absence of express words, such a law is only meant to discharge debts ^contracted under it; and r^o^^i-i clearly lays down that, if it attempts to do more, even its res L -■ judicata may be held of no authority abroad. (i) But in Sidaway v. Hay the presumption that parliament intended a Scotch sequestration to discharge English debts, merely because it was competent to entertain such an intention, goes beyond Story's interpretation of the prima facie meaning of the law : and in Edwards v. Ronald, inasmuch as our par- liament does not, though it might, legislate on the private law of India, the assumption that our bankruptcy laws intend a discharge of all debts, wherever contracted, appears almost undisguised. The 200th section of the Bankrupt Law Consolidation Act, 1849, declares the certificate a discharge to " the bankrupt from all debts due by him when he became bankrupt, and from all claims and demands made provable under the bankruptcy." The latter words seem to refer to claims and demands made provable by the act, but debts contracted abroad and to foreigners are provable, and therefore within the reason of the rule. And the weight of authority appears to be in favor of attributing to such laws the widest intention to discharge of which their expressions will admit.(y ) 258. It will be understood that international effect cannot be given to any discharge obtained under a law which in such an application would be palpably unjust, even though existing in the locus contractus ; as if some bankruptcy law should provide for a distribution of the debtor's we treat alien friends, if the judges felt themselves strong on the discharging law not being the lex contraclus? (e) Lewis v. Owen, 4 Ba. & Aid. 654. And so was a Scotch cessio bonorum : Phillips v. Allan, 8 Ba. & Cr. ill, where, aemble,. it would have been different, if the plaintiff had accepted a share under the cessio. Yet see Exp. Burton, as cited in Art. 253. (/) Rose V. M'Leod, 4 Shaw & Dunlop, 311; overruling Royal Bank of Scot- land v. Cuthbert, 1 Rose, 486. {g) Sidaway v. Hay, 3 Ba. & Cr. 12. (A) Edwards v. Ronald, 1 Knapp, 259. [i) Sect. 348. (y) See Lynch v. M'Kenny, 2 H. Bl. 554 ; Murray V. De Rottenham, 6 Johns. Ch. 52 ; Marsh x. Putnam, 3 Gray, 551 ; Journeay v. Gardner, 11 Cush. 355 ; Le Feuvre v. Sullivan, 10 Moore, P. C. 1, 13. 156 WESTIjAKE ON PRIVATE INTERNATIONAL LAW. effects, without any notice which could by possibility reach his foreign . - creditors.(A) Such a law was held, in the case cited in the note, L J to be intended only for operation *within the jurisdiction : at least, whatever the intention, it could only be allowed to operate there. Again, it is not necessary that the domicile to found a bankruptcy should be that strictly so called, on which, for instance, succession on death would de- pend : but similar remarks would apply to a discharge which should be granted on an unreasonably slight connection with the jurisdiction. 259. Thus much for dissolubility inherent in the obligation. Th^re are some other topics which belong almost equally to the material con- tents of obligations, as involved in the interpretation of the contract, and to their extinction. " A tender and refusal, good by the lex loci con- tractus either as a full discharge, or as a present fulfilment of the con- tract, will be respected everywhere. Payment in paper money, bills, or in other things, if good by the same law, will be deemed a suflEicient pay- ment everywhere. And on the other hand, where a payment by nego- tiable bills or notes is by the lex loci held to be conditional payment only, it will be so held even in states where such payment under the domestic law would be held absolute. "(;) In all this however the locus solutionis must be understood, since the debtor cannot compel his credi- tor to accept an arbitrary mode, any more than an arbitrary time or place of payment. [*243] *CHAPTER VIII. IIOYABLES 260. Corporeal chattels are entirely within the reasons which have been given in Chap. IV. for answering by the situs all questions of the property in, and jurisdiction with regard to, land. No other sovereign can lawfully use force to change or maintain their existing state of pos-- session, and it is therefore a matter of mere fact that the forum of the situation of every corporeal chattel must conclusively determine on its property.(a) Can any reason be given why in so doing it should apply any law but its own ? None which will net equally be of force as to the property in land. On the other hand, the protection which the local power accords to the rights of ownership draws with it the just claim to regulate them. It is indeed true, as said by the court in Philips v. Hunter, that " the country where the proprietor resides, in respect to {k) Story, s. 351, citing with approval the language of Chief Justice Parker in Prentiss v. Savage, 13 Mass. 24. {I) Story, s. 332. (a) " In a legal view, says Lord Karnes, " a movable situated within a certain territory is subjected to the judge of that territory, and every action claiming the property or possession of it must be brought before that judge. Warrant for exe- cution must be granted by the same judge, as no other judge has authority over it:" Principles of Equity, b. 3, c. 8, s. 3. MOVABLES. 157 another species of protection afforded to him and his property, has a right to regulate his conduct relating to that property. This protection afforded to the property of a resident subject which is situated in a foreign country is not imaginary, but real. The executive power of this kingdom pro- tects the trade of its subjects in foreign countries, facilitates the recovery of their debts, and if justice be delayed or denied, the king by the inter- vention of his ambassadors demands *and obtains redress. "(J) r*oa.4.T But the occasional protection thus afforded has only to be named, L J in comparison with the continual protection on which the enjoyment of property depends, to show how little it can weigh in determining the law to be applied. It is moreover a protection, not against the justice of the country to which the proprietor sends his ships or his merchandise, but against the possible failure of that justice, and therefore presupposing its course as the rule. To that course indeed the proprietor must in general be taken to submit himself as to the chattel which he acquires within its jurisdiction, or which he despatches thither. Or even if the circumstances are not such that a submission can be presumed, the terri- torial sovereign authority is always recognized as competent to operate on the property of the individual chattel, provided it does so in pursu- ance of general and reasonable laws, and not by an arbitrary act directed against particular persons, or by judicial processes not so framed as to afford a fair prospect of justice. Thus an American ship, captured by pirates, whose capture is universally allowed not to change the owner- ship, and afterwards stranded within a Spanish port, was regularly sold there by the Spanish officer as a derelict : and the title so acquired was held at New York to be good.(c) Why then, if the territorial sove- reignty may judicially transfer the property in an individual chattel, shall not its general laws on the transfer of property in chattels be of force with regard to such as are found within its jurisdiction ? The existence of any sufficient reason is altogether denied by Savigny.(c?) 261. But the actual dicta of the majority of jurists, at *least r:|t24f;-| until recent times, are thus correctly expressed by Lord Kosslyn L J in terms which run precisely counter to the principles here advanced. " It is a clear proposition," said his lordship, " not only of the law of England, but of every country in the world where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner. With respect to the disposition of it, with respect to the transmission of it, either by succes- sion or the act of the party, it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession. For instance, if a foreigner having property in the funds here dies, that (b) 2 H. Bl. 406. (c) Grant v. M'LaoUin, i Johnson, 34. These proceedings are quite ordinary, and always supported. (d) System d. heut. Rom. Rechts, s. 366. 158 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. property is claimed according to the right of representation given by the law of his own country."(e) 262. The general adoption of the law of the owner's domicile for cor- poreal chattels has been founded on two reasons, thus given by Story. " Some are of opinion that all laws which regard movables are real ; but at the same time they maintain that by a fiction of law all movables are supposed to be in the place of the domicile of the owner. Others are of opinion that such laws are personal, because movables have in contem- plation of law no situs, and are attached to the person of the owner wherever he is ; and, being so adherent to his person, they are governed by the same laws which govern his person, that is, by the law of the place of his domicile. "(/) The latter reason has been extended to rights of action, by the aphorism nomina creditoris ossibus inhcerent; and both are summed up in the maxim mohilia sequuntur personam. r*94n *263. Let us however examine the true motives by which these L J fictions have been suggested. In the first place, the reader will observe that the propositions quoted are asserted of movables, whereas we set out with considering only corporeal chattels. The latter alone are strictly subjects of property: the former include also incorporeal rights of action, lucrative or active obligations, with regard to which, when we speak of property in them, we only mean in whom the power of enforc- ing them is vested, by the original creation or the rights, or by their voluntary or involuntary assignment. These have been classed with the true subjects of property, on account of the importance which attaches to them as part of the fortune or means of the creditor. Indeed, this conception of a person's fortune as an entirety is forced upon us in num- berless eases, as bankruptcy, administration on death, and others involv- ing what are called universiiates juris, in which the corporeal chattels must be dealt with as forming one mass with the active credits, a mass too which continually tends to include immovable property, hitherto more or less excluded from it in most countries by the system of feudal law, or from considerations referring to the supposed interest of the state. Now it would be intolerable that in these cases the several corporeal chattels and active credits should be administered on principles varying with the casual situation of each of the former, and with the true seat of each particular tort or contract that might be involved in the latter, rather than on one uniform rule for the whole body of rights dealt with : and hence the necessity of considering together rights which must be distinguished in a scientific classification. It is thus impossible to apply to movables, at least in every case, principles as strict as those by which we dealt with immovables, for whatever principles are employed must often serve for rights of personal action as well as for rights of property noAn-i *i" things corporeal, and therefore, if strictly drawn from either, L " J could apply only by an imperfect analogy to the other : nay, whichever of these classes of movable rights be taken as the typical species, it would be improper to select our principles from a consideration of it alone, and not also with a view to their application to the other (e) In Sill V. Worswick, 1 H. Bl. 690. (/) Sect. 311. MOVABLES. 159 species. Now when once it is recognised that rights of property and of action are, for many purposes of transmission and administration, to be grouped together in the character of wealth, the only point of union which can furnish a common rule for them is to be found in the person of the owner whose wealth they constitute. They are so grouped together round the person of their owner, for jnore or fewer of these purposes, in every system of law which exists among civilized men : and therefore, when they are similarly dealt with in international law, it can only be from his domicile that the rules to be applied to them must be derived. (^) 264. These considerations show at once the foundation and the limits of the lex domicilii as applied to movables. Their results are very well expressed by Foelix, though it is to be regretted that he has taken the vague notion of a more or less intimate connection with the owner's per- son as the framework of his classification, when the particulars he enu- merates show plainly enough that the true distinction is between the cases in which a man's property is considered as an entirety, and those in which the single articles which compose it are considered ; the lex situs being allowed to prevail in the latter cases, from the absence of any sufficient motive to the contrary. La rhffle, says Fcelix, suivant laquelle les meubles sont rigis par la loi du domicile de celui A qui ils appartien- nent, repose sur le rapport intime entre les meubles et la personne du pro- prietaire, sur *une fiction Ugale qui les ripute exister au lieu du (-;|co^o-i domicile de ce dernier. De Id il suit que cette rigle ne peul L J s'appliquer qu'aux circonstances ou actes dans lesquels les meubles n'ap- pariaissent que comme un accessoire de la personne ; par excmple, en cas de succession ab intestat, de dispositions de derniire volonti ou entre-vifs [tels que les contrais de maria.ge expris ou tacites.^ La rigle est sans application d. tous les cas oil les meubles n'ontpas un rapport intime avec la personne du propriitaire : par exemple, lorsque lapropridtd de meubles est reclamde et contestie, lorsqu'on invoque la maxime qu' en fait de meu- bles possession vaut titre ; lorsqu'il s'agit d'exercer undroit de gage, des priviUges ou des voies d'exicution sur les meubles, d' en proJdber V aliena- tion, d'enprononcer la confiscation ou de declarer une succession mobililre en dishirence au profit du fisc, ou enfin d'interdire V exportation des meubles. Dans tous ces cas, ilfaut appliquer la loi du lieu oil les meu- bles se trouvent effectivement : car la dite fiction cessepar le fait. Par exemple, la convention conclue en pays Stranger, par laquelle le propri- kaire d'un objet mobilier qui se trouveen France accorderait lepriviUge de gage (Art. 2073, et suiv. du Code civil) sur cet objet, n'auraitpas d'effet en France, si ce gage n'apas 6t6 livre au credncier [Art. 2076), quoique cette condition ne f {It pas exig&e par la loi du domicile du pro- priitaire.Oi) 265. It is nevertheless true that the lex domicilii, as governing the transmission of the property in movables, has not by the jurists of former times been generally restrained within these limits, but has been applied to the alienation of individual chattels, also in all the latitude expressed in the citations given above from Story and Lord Rosslyn. The practi- ce) See Art. 59. (K) No. 62. 160 ■WBSTLAKB ON PRIVATE INTERNATIONAL LAW. cal point at issue is commonly whether the sale is complete without de- livery. For by the Code Napoleon, the property is transferred by the r*94.qi *ooDt''act of sale,(i) while by the English law, and that of many L J colonies and American states based on ours, the purchaser is only bound to take possession within a reasonable time, or, if the goods be at sea at the time of the sale, within a reasonable time after their arrival in port : if he complies with this condition, his title is superior to that of subsequent purchasers and creditors who by greater diligence may have anticipated him in taking possession. But the law of Louisiana, as the Prussian, (y) and some others which are founded on the Roman, awards the property to the one who first gains the possession on a lawful title, without regarding the priority of the titles, or whether laches is imputable to the claimant who has been outstripped. 266. The preference of the hx domicilii of the alienor in these cases appears to have been founded on a feeling, expressed thus by Lord Karnes : " the will of a proprietor, or of a creditor, is a good title jii.re gentium, that ought to be effectual everywhere."(Z;) And this maxim has thus far a true foundation, that the feudal principles, which con- tributed so much to exclude the operation of foreign laws on the trans- mission of land, did not extend to chattels ; so that there was in their case no jealously guarded positive law, proceeding on motives of a public character, to interfere with the will of a foreign proprietor, properly ex- pressed and authenticated. It is farther true that the absence of such motives encouraged a laxity in examining private dispositions of chattels, to such an extent that in many countries the conception of property in them was almost entirely dropped, as we know that in England, and the case was the same in France, a chattel could not be specifically re- r*9'Sm "O^^i'sd, but only a personal *action lay for its value. But it is L "^ J not true that any such maxim was ever formalised in private law as that the mere will of a proprietor, however authenticated, made a good title. That it never could have been so appears from several con- siderations. The nations which alone could have been disposed to adopt such a maxim, as having abandoned the Roman requirement of delivery of possession, were those which at the same time abandoned, as just pointed out, the conception of title to chattels altogether, reducing the rights existing with regard to them to the description of personal rights. Moreover, the whole question of what modes of acquisition were natural, ox juris gentium, and what of positive institution, belonged to the publi- cists, who discussed it for the purpose of regulating the acquisitions of territory by states, and was never, at least for any practical purpose, transported into the domain of modern private law.(/) The feeling how- ever which lies at the bottom of Lord Karnes's maxim, that the interests of commerce require great freedom of disposition to be allowed to pro- prietors, was certainly operative in producing a tolerably wide interna- tional recognition of the validity of an alienation made in the manner {i) Art. 1138. (j) But not for the Ehenish province, which is under the Code Xapoleon. (k) On Equity, b. 3, i;. 8, s. 4. {I) See, as to this question, Grotius, as referred to in Art 159. MOVABLES. 161 prescribed, not only in the alienor's domicile, but even in the place of sale :(m) and in fact, notwithstanding the reiterated assertions by jurists of the lex domicilii for movables, it is the forms of the place of sale which have been most usually employed, and on which by the same jurists the most stress has been practically laid. These in *fact ^^^.^-. are the forms which it is easiest and most obvious to follow, and L J they had for them the continental maxim locus regit actum. 267. Of late years however the current has set very strongly, even in commercial countries, towards enforcing the lex situs on the title to chattels. We have seen the French doctrine in the words of Foelix. The courts of Louisiana enforce it also, in sales made under the domi- nion of the English law. The cases where this has been done are those of ships or goods sold, in Virginia for instance, and afterwards, but before delivery, attached at New Orleans by creditors of the vendors ;(n) and of the same goods sold by each of two partners, the earlier sale made at a place under the English law, but possession first taken at New Orleans under the later.(o) The last-mentioned case is also varied, as the domicile of the firm is either at New Orleans or in the place of the earlier sale. Similar decisions to these of Louisiana have been made jtoo in Massachusetts, where delivery is also thought essential, though without express reference to the topics of international jurisprudence involved. (p) And Savigny says expressly, " when a Parisian sells at Paris to a Parisian his movables then happening to be at Berlin, the property is only transferred by delivery. But when, conversely, a Berliner sells at Berlin to a Berliner his chattels at Paris, the mere con- tract immediately transfers the property. The same result exactly will follow, if in these examples we put Cologne for Paris. For the applica- tion of this rule it will suffice that the existence of the chattel in the place *in question should be only transitory and brief, for in ^.^.^^^- every case the transfer of the property rests on an instantaneous L ''J transaction, and so occapies no long space of time. It will be otherwise only in the exceptional cases in which the momentary place of the thing is so undetermined, that the parties cannot have dealt under any certain consciousness of that place. In such cases we shall have to consider that as the place of the thing supposed at which it is next destined to remain, which will often be the domicile of the present owner, the alienor'Vg) (as when ships are on a voyage, even perhaps an outward (m) Thus Story says, that to maintain the lex situs, as to the necessity of de- livery on a sale of chattels, "would most materially impair the confidence which the commercial world have hitherto reposed in the universal validity of the title acquired under a bill of lading :" s. 394. When bills of lading and dock war- rants are regarded as negotiable representatives of the chattels to which they re- late, the maxim locus regit actum becomes applicable at once to their transfer by indorsement or otherwise. (n) Norris v. Mumford, 4 Mar. 20 ; cotton at N. 0. sold at N. Y., and order for transfer- of possession delivered' to purchaser : Olivier v. Townes, 2 Mar. N. S. 93 ; ship at N. 0., though the sale was effectual by laws of place of contract, and vendor's and vendee's domicile. (o) Case put in Thuret t. Jenkins, 1 Mar. 353. (^p) Lamb v. Durant, 12 Mass. 51 ; Lanfear v. Sumner, 11 Mass. 110 ; commented on -by Story, s. 392, and note to s. 389'. (?) V. 8, p. 184. Januabt, 18.59. — 11 162 WESTLAKE ON PRIVATE INTERNATIONAL LAW. one, but of which the home port is to be not merely the ultimate conclu- sion, but the first at which they are destined to make any stay.) 268. In the leading case on this point, that of Olivier v. Townes,(r) the Louisiana tribunal expressed itself thus. " We readily yield an assent to the general doctrine for which the appellee contends." This was the efficacy of the law of the vendor's domicile, coinciding in the particular case with that of the place of sale. " He has supported it by a variety of authorities dravrn from diiferent systems of jurisprudence. But some of these very books furnish also the exception on which we think this case must be decided, namely, that ' when those laws clash and interfere with the rights of the citizens of the countries where the parties to the contract seek to enforce it, as one or other of them must give way, those prevailing where the relief is sought must have the pre- ference.' Such is the language of the English books to which we have been referred ; and Huberus, whose authority is more frequently resorted to on this subject than that of any other writer, because he has treated P^„p.q-| it more extensively(s) and with ^greater ability, in his treatise L J De Gonflictu Legum, In. 11, V tells us, effecta contractuum certo loco initorum pro jure loci illius alibi quoque ohservantur, si nullum inde civibus alienis creetur prcejudicium in Jure sibi qucesito. The efiects of a contract entered into at any place will be allowed according to the law of that place in other countries, if no inconvenience will re- sult therefrom to the citizens of that other country with respect to the right which they demand." Observe that injure sibi qucesito does not mean " with respect to the right which they demand," but " which they have acquired," which is very different : for if the purchaser gained the property in the ship by the law of the place of sale, then the attach- ing creditor acquired no right, because when he instituted his process there was nothing left in the vendor on which the attachment could operate. Yet, as we saw in Art. 144, Huber came to the same conclu- sion with the Louisiana judges. If the foreigner, continued Justice Porter, *' sends his property within a jurisdiction different from that where he resides, he impliedly submits it to the rules and regulations in force in the country where he places it. What the law protects it has a right to regulate." The court finally examined the point of injury to its own citizens in these words : — " This city is becoming a vast store- house for merchandize sent from abroad, owned by non-residents, and deposited here for sale ; and our most important commercial transactions are in relation to property so situated. If the purchasers of it should be affected by all the previous contracts made at the owners' domicile, although unaccompanied by delivery, it is easy to see to what imposition such a doctrine would lead, to what inconvenience it would expose us, and how severely it would check and embarrass our dealings It would be giving to the foreign purchaser an advantage which the resi- rifonA-i dent has not, and that frequently at the expense of the latter. L -• This, in the language of the law, we *think would be a great (r) 2 Mar. N. S. 93. (s) Yet Ruber's treatise is one of the shortest of the many on this subject. ■ MOVABLES. 1G3 inconvenience to the citizens of tliis state, and therefore we cannot sanction it." 269. It must be regarded as unfortunate that the doctrine has been rested in Louisiana on these grounds. The appearance of a departure from general rules of law, for the express purpose of favoring the citizens of the forum, has produced an antagonism which is quite apparent in all Story's remarks, though he finally sums up by declining to express an opinion :(<) and the preference of the lex situs might, as we have seen, have been grounded on the strictest principles. On the whole, I am dis- posed to regard the language of the judges as the somewhat loosely ex- pressed efforts of a strong common sense, freeing itself from the trammels of the older jurists, whose dicta in favor of the lex domicilii formed almost the only technical material it had to work upon. The adoption of the lex situs would, no doubt, occasion some inconvenience in the case of ships or merchandize, of which the exact situation at the moment might be unknown to the owner, and to those with whom he dealt. We have seen that Savigny meets this by a reference, not simply to the duration, but to the nature of the chattel's continuance in its temporary situation, namely, whether it is such that its owner must be considered to have submitted himself to the lex situs by carrying or sending it thither : and in the ambiguous cases lying on the limits, he considers that a longer or shorter continuance will found the application of the lex situs, according to the rule of that law which is in question, the form of volun- tary alienation being applicable, for instance, on a shorter stay than the term of prescription for clothing a bona fide possessor with the pro- perty.(M) But this method leaves far too much to the court to suit the genius *of English jurisprudence : and the submarine telegraph p^.,._-. will soon remove the difficulty which it is intended to obviate. L -■ J 270. It remains to observe that if the ship or goods were at sea at the date of the earlier sale, it has been decided even in Louisiana that the creditor or second purchaser cannot take or obtain possession on their arrival at New Orleans, because there was no lex situs to oppose the final effectuation of the earlier sale at the instant when it was made.^cc) 271. It may happen however a British ship, or a share in a British ship, is transferred abroad to one qualified to be owner under the 18th clause of the Merchant Shipping Act, 1854; and that such transfer is good by the lex situs, but that a memorandum of it is not indorsed on the certificate of registry under the 45th clause of the same act, or the transferee registered as owner under the 57th. It is clear that in such a case a British court would be bound by our statute, inasmuch as the public motives of its provisions would take the case out of the class in which the maxims of international law can be applied, and assimilate it to those in which an obligation, good by its lex loci, is defeated in the forum by the plea of turpitude. But as this is a consideration for that forum only in which the stringent law exists, it is probable that the courts of the nation in whose harbors the ship was found would give full (t) Sects. 390, 394. (m) See the citation in Art. 267, and Savigny, pp. 178-181. (x) Tliuret v. Jenkins, 7 Mar. 318. 164 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. effect to the transfer. If the transferee be not qualified to be owner of a British ship, no difficulty arises, for the ship will," by the transfer, merely cease to be British within the meaning of the statute. 272. Next, let us suppose that by the law of the sale, whether that of the vendor's domicile or, if the transaction took place elsewhere, that of l-^f,p.„-. the place of sale, the vendor *had, in accordance with the Roman L '^ J law, a lien on the goods for the price, or, in accordance with the English, a right to stop them in transitu in case of the consignee's in- solvency. How far will either of such rights prevail against the vendee, or his assignees as representing his general creditors, or against innocent purchasers from him, the goods being found, or the sub-purchase made, where the vendor has no such security for the price 1(y\ or how far will the former of such rights prevail, in conflict with a law giving only the English or more limited security ? Mr. Burge has answered these ques- tions in favor of the vendor, as against the vendee, on the ground of the lex loci contractus ; but against him when he competes with third par- ties, as the vendee's other creditors. (z) It may be argued that the vendor, by empowering the purchaser to carry the thing into the empire of another law, has enabled him to deal, on the strength and credit of its property, with those who, cannot be held to know the rights retained by the late owner under a foreign jurisprudence. But Story says that " upon the general principles as to the operation of contracts, and the _^n-_-, rule that movables have no locality, *it would seem that these L -I privileges, hypothecations and liens ought to prevail over the rights of subsequent purchasers and creditors in every other country : that having once attached rightfully in rem, they aught not to be dis- placed by the mere change of local situation of the property ."/a\ In this opinion that learned writer includes "hypothecations and liens recognized to exist for seamen's wages, and for repairs of foreign ships, and for salvage '"{V). and indeed both these, and every sort of pledge or mortgage given either expressly or tacitly without possession, appear to be indistinguishable in principle. In a recent case it has been held that a mortgage without possession, but valid as between the parties to it at New York, where it was made, and where the chattels were at the time it was contracted, was yet defeated by an attachment in Vermont, into [y) The conflict here imagined did not arise in Inglis v. UsherTrood, 1 Bast, 515, for there the vendors repossessed the goods while still in Russia, under the right given by the law of that country, which was also the place of sale. Notwith- standing therefore that the goods were afterwards found in England, by the law ef which country the right to stop in transitu would have been lost by the delivery to the agent of the vendee, which was made previous to the vendors' repossession, yet the vendee bad no colorable foundation for seeking to apply our rule to a de- livery made in Russia. In Whistou v. Stodder, 8 Mar. 95, it was decided that a vendor, who has no lien by the law of the place where the sale was completed, through his final assent being given and the goods being shipped on account of the purchaser, acquires none by the law of the country where they are received by the purchaser: see Mr. Livermore's very learned argument in this case. (z) V. 3, p. '7 TO. In the case of concursus, Burge makes the lien to depend on the law of the owner's domitile, where he says the movable estsite is by a fiction. (a) Sect. 402. (J) Sect. 4Q1. MOVABLES. 165 whicli state the mortgagor brought the chattels. (c) Bat the decision has been very much questioned in a still later case, where a mortgage made by partners in Massachusetts having been there foreclosed, the -chattels also then being there, though in the possession of the mortgagors, where- by the mortgagee obtained a title to the property which was assumed to be valid by the laws of that state against even hona fide pur- chasers, one of the partners afterwards took the chattels into Vermont, and sold them there to innocent persons, whose title under Vermont law was consequently preferable. (cZ) The Massachusetts law was applied, as it clearly ought : and it was said, with great hesitation, that Skiff v. Solace might perhaps *be distinguished, on the difference be- r^p-n-i tween a lien and the entire property. >- " J 273. The assignment of a debt may be either equitable or legal, the difference between the two relating to the name in which the assignee must sue, but either, when complete, enabling him to recover the debt. Now by some laws, as by ours and that of Massachusetts, (e) the assign- ment is itself a complete transfer, though the debtor will be discharged if he pay the debt without notice of it : consequently notice pendente lite will prevent the debt being recovered by an attaching creditor or poste- rior assignee. By others, as the Scotch, the transfer is only completed by intimation, as the Scotch call it, to the debtor, so that such intima- tion pendente lite comes too late. Evidently then there is room for a conflict of laws analogous to that which occurs on the sale of a corporeal chattel, intimation taking the place of delivery, and the forum in which the debtor is sued that of the situs. And accordingly we find analogous opinions and decisions. That the assignment of a debt, complete by the law of the creditor's domicile, must be held complete and valid every- where, is asserted by Kames, Story, and a Pennsylvanian case.(/) That its completeness must be decided by the law of the forum where the debt is sued for, has been held in Louisiana, on the attachment of a promis- sory note previously assigned without delivery. ( ^^ selling also those parts of the estate which may be L J situate in their jurisdictions. They treat the process as one of the creditors' remedy, and compare the assistance thus claimed for the curator to the execution which is allowed to be had on judgments in foreign countries. There are indeed those who hold that each judge should establish a separate concursus, for the distribution of the property lying within his limits : but this is answered by the argument that, since a concursus is founded on nothing but the existence of numerous rights of action which cannot all be fully satisfied, it cannot arise in any juris- diction on the mere ground that the debtor has property there, no forum for personal actions being, on Koman principles, founded on that circum- stance. Thus, where those strict maxims of jurisdiction are upheld, the refusal of assistance to the curator of the domicile would amount to a denial of justice : and even elsewhere it is granted, though on a comity demanded by a less imperious necessity. The difference between plural and singular concursus is important on the priorities between unsecured creditors : for on that point, belonging as it does to the remedy on merely personal obligations, each forum would follow its own law, a rule which is well established in bankruptcies. (6) As an English bankruptcy passes r*9fid.l ^'^ *^® estate within the British ^dominions, there cannot be a L -I second British concursus to compete with a prior English adjudi- cation, (c) 278. The English and Scotch cases may be divided into two classes : those in which the effect of an English bankruptcy in Scotland, or of a foreign bankruptcy in England, is considered, and those in which the effect of an English bankruptcy abroad is considered. As to the former class, the doctrine " that an assignment under the bankrupt-law of a foreign country passes all the personal property of the bankrupt locally situate, and debts owing, in England"((i) or Scotland, was finally esta- (J) Story, s. 323, coincides with the general opinion that priority is no part of a contract, and therefore independent of the lex loci contractus. Huber holds the existence of property in a given jurisdiction to vest a right in the creditors to be paid out of it in the order of priority there established, an opinion which would lead to the necessity of plural concursus, or at least that the /oram domicilii should regard the leges situs of the different parts of the estate in the matter of priority, which was probably never done in practice : 1. 3, J. P. Univer., c 10, s. 44. Her- tius, Rodenburg, the two Voets, Mattheeus, Boullenois, &c., determine priorities by the law of the debtor's domicile, except as against immovables, which however Savigny would bring into the concursus of the same place. See Art. 280, for France. (c) As to the relative priority of adjudications and sequestrations, see Exp. . G-eddeg, re Mowat, 1 Gl. & J. 414, whence it appears that the relation of the adjudication to the act of bankruptcy does not supersede a sequestration actually prior. [d) These are the words of Story, s. 409. BANKRUPTCY AND INSOLVENCY. 169 blished for Scotland though not previously unknown there,(c) by the leading cases of the Royal Bank of Scotland v. Cuthbert, (commonly called Stein's case,)(/) and Selkrig v. Davis :(§') which also fully show, as before alluded to, that the English bankrupt's assignees prevail against an arrestment made by a Scotch creditor subsequently to the assignment, but before its intimation to the Scotch debtor. In England the same doctrine rests on still earlier authorities, f A) 279. As to the latter class, the effect which an English bankruptcy, may have abroad calls for the decision of our courts only in contests be- tween the assignees and those *who having, after the bankruptcy, p^„„ _-, obtained property belonging to the bjinkrupt, or received payment L J of debts due to him, in foreign countries, afterwards bring such property to England, or are sued here in respect of such receipt. Now in the three leading cases of Hunter v. Potts,(i) Sill v. Worswick,(^) and Philips v. Hunter,(A the assignees indeed recovered, but in all of them the defend- ant, who as creditor of the bankrupt had attached abroad, was a domiciled Englishman, and the debt due to him had been contracted in England, while the proceeding in attachment had been commenced by him with knowledge of the bankruptcy, and in the first two cases by swearing an affidavit in England. Some surprise may be felt that some of these cir- .cumstances should have weighed with the judges,(m) and perhaps they might have been safely omitted from a summary statement of the facts. But the English domicile is important, for it introduces the question how far our law may not have been enforced as a rule common to all the par- ties, and not simply as that of the bankrupt's domicile. Now in none of the cases had there been an intimation of the bankruptcy pending the attachment, but Lord Rosslyn held that if there had, and the foreign court had notwithstanding rejected the title of the assignees, a foreign creditor would not, though he appears *to have thought that an r^of-p-i English creditor would, be liable to refund. (w) Upon the whole L -I then the English doctrine may be said to stand thus : — (e) Strather v. Reid, cited by Lord Meadowbank, 1 Rose, 481. (/) 1 Rose, 462. (g) 2 Rose, 291 ; 2 Dow, 230. (A) Solomons v. Ross, 1 H. Bl. 131, note; Jollet v. Deponthieu, 1 H. Bl. 132, note. Neale T. Cottingham, 1 H. Bl. 132, note, established the same doctrine in Ireland. And if some of the syndics appointed abroad may, by the law of their appointment, sue without joining the others, they will be permitted to do so here, their title as procurators, (see Art. 280,) where such is really their character rather than assignees, being recognized in Kngland : Alivon v. Furnival, 1 Or. M. & R. 277; 4Tyrwhitt, 751. (i) 4 T. R. 182. {k) 1 H. Bl. 665. \l) 2 H. Bl. 402. The attaching creditor resided in America for a temporary purpose, and his firm had no house there, so that his domicile was English : p. 404. (m) It is difficult to introduce the locus contractus of the attaching creditor's debt into this discussion, for both the attachment, and the assignment under the bankruptcy to trustees for the creditors, concern that debt only as remedies for its recovery, and remedies are of the lex fori. It is not therefore true, except for- mally and only in the forum of the bankruptcy, that the creditor's " interest is transferred to the assignees." We have here in fact a conflict between two pro- cesses in different forums, each of which claims to be the proper remedy. But for the weight which the locus contractus had with the judges, see 2 H. Bl. 405. (ra) 1 H. Bl. 693. And see the creditor's subjection to our bankrupt laws urged 170 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. (1) The foreign court in case of intimation pendente lite oug^it to hold the title of the assignees superior to that of the creditor whose proceed- ings in attachment were commenced after the act of bankruptcy, even though it might use a different rule in the case of an assignment of a particular chattel by the owner, (o) ; (2) If it does not, but in the face of such an intimation adjudges the property or the payment to the creditor, our conceptions of private inter- national justice have been violated, but the respect due to the res judicata of a competent tribunal — for in regard to the situation of the corporeal chattel, or the personal .obligation of the trustee, the forum of the attach- ment is ex hypothesi competent — generally protects in the creditor's hands what he has so received. Add to this, that the attaching creditor has gained his advantage in the course of procedure, the validity of which must therefore depend on the law of the forum in which it was gained. TJtique ex lege domicilii \dehitoris\ discutienda causa creditorum est. Nisi forsan executio directa sit in ejus dehitoris mobilia qui adhuc in possessione suoruin honorum sit : feret enim turn creditor diligentice ac vigilantice sucb prcemium, si quid eo nomine loci mores, ubi in causam judicati ceperit mohilia, prce aliis creditoribus ipsi indidserint, quod privilegium illud nan tarn proficiscatur ex credito, quam ex actu ipso executionis qua alios creditor proevertit, adeoque haic res, tanquam con-- r*9r7n '^^''""'^'"■^ ^exequendi ordinem, legem accipiat a loco ubi ilia pera- ■- J gitur.(^p\ The reasoning is the same, though in our case the advantage is not given through a priority allowed in the situs to a certain description of creditor (though that case also might arise, and would have to be decided in the same way,) but on a systematic preference of indivi- dual creditors to the assignees or curators acting for the body. (3) But if the creditor be an Englishman, this farther circumstance strips him of the protection he would otherwise derive from the res judi- cata, an effect which will be accomplished in legal form by raising an irrebuttable presumption that what he recovered he recovered to the use of the assignees. (4) And lastly, we may probably add that if no intimation was given previous to the completion of the recovery by attachment, the same pre- sumption will be raised, and the creditor, whether foreign or English, compelled to' 'refund, although the law of the place of attachment might refuse efficacy to such intimation even if given pendente lite.f^q) 280. With regard to France, in which the Eoman system of the cessio honorum has been developed into a modern bankruptcy capable of dis- charging the debtor, Blerlin states th^t, first, the syndics named by a in 2 H. Bl. 405, 406, 408. No light is thrown on the question by Exp. Dobree, 8 Ves. 82, for if the law of Jersey only vested the property " upon the completion of the judicial act" of attachment, it was not in conflict with that of England as to the effect of the bankruptcy on the debts attached. (o) This is distinctly laid down in Sill v. Worswick, 1 H. Bl. pp. 691-693. (p) Rodenburg, de Jure quod oritur e Stat. Div., tit. 2, c. 5, s. 16. ((?) At least no inquiry seems to have been made about the law of the place of attachment in Hunter v. Potts, Sill v. Worswick, or Philips y. Hunter ; and the distinctions there suggested on the creditor's nationality refer only to the case of an intimation actually given. BANKRUPTCY ASD INSOLVENCY. I7I foreign tribunal in the bankruptcy of a foreign trader may recover in France his credits and other effects, without previously causing either the adjudication of bankruptcy, or their own appointment, to be declared executory by a French tribunal. For, although the alleged bankrupt might dispute the adjudication in France, yet the syndics are but the attorneys of his ^creditors to sue for his effects; and the validity r*9RCT of their title, as against a debtor to his estate who does not dispute L J the existence of a just ground for the adjudication, must be decided, on the maxim locus regit actum, by the law under which they derive their appointment as such attorneys. Secondly, that he who purchases any of his French effects from a foreign trader, bankrupted in his domicile, in ignorance both of the adjudication, not yet declared executory in France, and of the actual disorder of his affairs, has a good title against the syndics, even though they afterwards cause the adjudication to be declared exe- cutory. Thirdly, that if the purchaser knew of the adjudication, he would be admitted to sustain his purchase by showing that it was not well founded. Fourthly, that if the purchaser did not know of the ad- judication, but knew that his vendor had stopped payment and was sell- ing in fraud of his creditors, his purchase would be invalid on account of his complicity in the fraud. And fifthly, that the creditor, to whom a foreign trader has mortgaged any of his French effects, cannot complete his title by obtaining a valid inscription in the hureau des Jii/othiques if the mortgage was made later than ten days before the act of bankruptcy, (ouverture de la faillite\ this being the lex situs, to which it makes no difference whether the act of bankruptcy and consequent adjudication be French or foreign. (r) It is evident that these conclusions proceed, like the English doctrine, on a liberal application of international comity to bankruptcy laws ; but that they are modified by the French system of declaring foreign judgments executory. This system has also, as may be seen in Merlin's reasonings, altered the basis on which the conclusions rest, even where they agree with ours. The title of the foreign assignees is not now received in France on the '•'ground of the international rs(:of>Q-| validity of universal assignments made by the law of the domi- L J cile; or on the ground that a trader's subjection to bankruptcy laws is in the nature of status, dependent therefore on the law of the domicile ; for the validity of the adjudication may be disputed, on the demand for de- claring it executory. It depends on the validity of the assignees' pro- curation to act for the creditors, so that in fact their authority, as that of the curator in a Roman cessio, is not made to turn on the conceptions of conveyance or property, but on those of procedure. Also no distinc- tion appears to exist between movable and immovable property, with regard to any of the doctrines here abstracted from Merlin. 281. In the United States, where the policy of our bankruptcy laws is not admitted, an opposite opinion is correspondingly maintained on the first of the four points enumerated in Art. 279. Not only do they object to the discharge of the debtor, as impairing the faith of con- tracts — a ground which here would not be decisive, since they might (r) E^pertoire, Faillite et Banqueroute, Sect. IL, ^ II., Art. X. 172 ■WESTLAKE ON PRIVATE INTERNATIONAL LAW. assist the distribution without recognizing the discharge, as an English distribution would in fact be assisted by a judge under the Roman law, in which the cessio honorum does not operate a discharge — but they re- fuse to allow property within their limits to be distributed according to any priority not obtained under their own laws. Other reasoning' will be found in the reports of the American judgments, in which it is attempted to base the same conclusion on the principles of international law, but it will be seen on examination to revert in the end to this re- fusal to apply those principles to the case : a refusal in which the courts and legislatures of an independent nation are fully justified, if they do not possess that community of ideas with us, on which alone comity can be founded. Thus it is said that foreign laws must not be admitted r*97rn ^^^'^ ^'^^y would prejudice the citizens of the forum, a *position L " J the value of which here depends on the degree in which priori- ties between creditors are thought of vital importance : that laws only operate territorially, so that the involuntary assignment made by the law of the domicile has not the same claim to extraterritorial validity which it is admitted might justly be advanced for a voluntary assign- ment made by an owner, a position which even in theory would only be true if the latter assignment as well as the former did not depend for its validity on its recognition by the lex situs, and which is disregarded in America itself in the case of transmission on intestacy,(s) where the con- venience of subjecting the whole personalty to one rule is obvious, and is only taken up in bankruptcy because the corresponding convenience is not recognized in America : and that bankruptcy laws work a kind of forfeiture, which brings them within the rule that penal statutes do not operate extraterritorially, a position not very consistent with the rejec- tion of the discharges granted under them as being too favorable to the bankrupt. In fact, the reasons thus given go beyond the doctrines actually maintained in the United States. " In most of the eases," says Story, " in which assignments under foreign bankrupt laws have been denied to give a title against attaching creditors, it has been distinctly admitted that the assignees might maintain suits in our courts under such assignments for the property of the bankrupt. This is avowed in the most unequivocal manner in the leading cases in Pennsylvania and New York already cited, and it is silently admitted in those of Massa- chusetts. The point has hitherto been a struggle for priority and pre- r*27n fsi'^nce between parties ^claiming against the bankrupt under L -I opposing titles ; the assignees claiming for the general creditors, and the attaching creditors for their separate rights."(i:) Story's own opinion, as well as that of Kent, was in favor of the European doctrine against that of the United States. 282. The English bankrupt cannot be compelled to execute an assign- ment of the movable property owned by him, or debts due to him abroad, («) It may be said that the intestate assents, by his intestacy, to the statutes of distribution of his domicile : not more however than the bankrupt, by his resi- dence and trade, and his creditors, by their dealings with him, do to the bank- ruptcy laws of his domicile. {l) Sect. 420. BANKRUPTCY AND INSOLVENCY. 173 in aid of the assignment by law wHch may not be respected in any foreign country :(tt\ nor indeed will a confirmatory conveyance, even voluntarily made by the bankrupt, be allowed any force in New York, for the title of the assignees under the adjudication is, as we have just 'seen, held good there against him, so that nothing remains in him which he can convey, (a) , 283. We have already seen that his British immovables are not suf- fered to pass to the assignees or syndics of a foreign bankrupt, but are left as a prize for the diligence of those creditors who may proceed by our laws. The assignees in an English bankruptcy now take, by sta- tute, the debtor's immovables throughout the British dominions :(v) but the creditor of an English bankrupt is not bound to impart to his fellow- creditors the benefit of proceedings he has taken against the bankrupt's immovable estate situate out of those dominions, subject of course to the condition that by those foreign proceedings, and his proof in the domi- cile, he must riot together receive more than twenty shillings in the pound. (z) If however a creditor have attached abroad personal pro- perty of the *bankrupt, he will not be suffered to receive divi- ^^„-^^ dends here without communicating what he has so received, and L "■ J suspending the farther progress of his foreign proceedings. " The prin- ciple is," said Lord Wensleydale, " that one creditor shall not take a part of the fund which otherwise would have been available for the pay- ment of all the creditors, and at the same time be allowed to come in pari passu with the other creditors for satisfaction out of the remainder of the fund : and this principle does not apply where that creditor obtains by his diligence something which did not and could not form a part of that fund,"(a) as the foreign land, in the case supposed. But the principle applies to personalty, to which the assignment in bank- ruptcy makes even abroad an effectual title in the absence of a com- peting claim by attachment. Hence it may be concluded that the same doctrine would operate against even a foreign creditor, who might by foreign law obtain possession of the bankrupt's personalty in spite of an intimation of the assignment. The res judicata would, as we have seen, protect his retention of the property from the suit of the assignees in England, a country to the bankrupt-laws of which he is not personally subject ; but our law would have a right to impose its conditions on him if he sought to avail himself of it by proving his debt. 284. It will readily be understood that in England, no less than in America, the bona fide payment, which the bankrupt's debtor makes under process of foreign law to his creditor, protects him from a second payment at the suit of the assignees in the bankrupt's domicile. (J) It is only from the creditor that we ever allow the assignees to recover. [u) Exp. Blakes, 1 Cox, 398. (x) Holmes v. Remsen, 20 Johnson, 267; reversing Ckancellor Kent's decisiony (with which Story agrees, s. 418,) in 4 Johnson, Ch. 489. (j/) 1 2 & 13 Vict. c. 106, s. 142. (2) Cockerell T. Dictens, 3 Mo. P. 0. 98'. (a) Cockerell v. Dickens^ 3 Mo. P. C. 132. (b) Le Chevalier v. Lynch, Doug. 170. 174 WESTLAKB ON PRIVATE INTERNATIONAL LAW. r*97qi *285. The bankruptcy of partners gives rise to difficult ques- L J tions. In Stein's case, before alluded to, an English commission of bankrupt issued against five copartners, of whom three resided in Lon- don, was held a bar to a sequestration against the property of the other two, who resided at Edinburgh and carried on in Scotland trades distinct from that of the firm :(c) but it has been held in England that the assignees of a partner residing here, and separately bankrupt, cannot recover from a joint creditor of the firm any portion of the joint property which he may have attached abroad in the place where the firm has its establishment.((f) "The difficulty," said Sir W. Grant, "seems to me to be insuperable, where a partnership originating in another country has at least a divided establishment, and some of the partners continue to reside and carry on the trade in that other country. How are the West Indian partners to be controlled in the management of their trade, or restrained, by any proceeding here, from paying and applying the partnership assets as they think fit ? Equality of distribution cannot possibly be attained. Are we then to tell a creditor, that, because he happens to reside in England, and his debt has been contracted there, he shall not be allowed to take such remedies against his foreign debtors as the laws of their country may permit ? In the cases before the Lord Chancellor, in which the domicile of the partnership was completely English, the court, taking from the creditor his separate remedy, pro- fessed to give him his distributive share of the whole partnership pro- perty. But it cannot in this case reach the West Indian property, or bind the West Indian partners; then you would take from the partner- r*97J.n ^^'P creditor one remedy, without substituting any other *in the L -• place of it. This would be to say that the West India property must be left for any creditors but English creditors. Then, if English creditors are not to be restrained from suing, it would be incongruous to force them to refund what they have recovered. I think, consequently, the defendant is entitled to retain what he has recovered or received from the West Indies, to the extent of satisfying the joint debts due to him."(e) 286. In Exp. Goldsmid, A. and B. were partners at Liverpool, and A., B. and 0. at Pernambueo, each firm trading under the name of A., B. & Co. The Pernambueo house, being in advance to that of Liver- pool, drew bills upon it, which were accepted, and purchased by the Brazilian government. The Liverpool house then became bankrupts, and afterwards the Pernambueo house became /a /?/rfos by Brazilian law, and entered into a concordata with their creditors : and the question was whether the Brazilian government, having received a dividend under the concordata, was entitled to prove under the adjudication. Lord Justice Knight Bruce avowed his opinion to be that abstract justice, and the principles of Commercial law and of general jurisprudence, were with the petitioners, and that the law of England was not opposed to them. Lord Justice Turner, adverting to the question whether the case ought to be (c) 1 Rose, 462. (d) Brickwood x. Miller, 3 Mer. 279. (e) p. 283. BANKEUPTCT AND INSOLVENCY. 175 dealt with according to the Brazilian or English law, considered " that, the bills being accepted here, the case must be dealt with upon the foot- ing of the English law," of which he took a different view from his learned brother. (/) The case, however, is reported as under appeal. One element in it was how far the firms should be recognized as having a personality, which might *dispense with the consideration of p^„„_-, the identity of two Pernambuco partners with those at Liverpool. L J Where the same persons traded under different firms at Antwerp and in London, the superior court of Brussels in 1816 refused to admit the title of the assignees, in the bankruptcy of the London house, to interfere in any manner with the affairs of the Antwerp house, which had not been bankrupted in the Netherlands, and to which they attributed an entirely distinct personality.(^) A joint English commission of bankrupt was not superseded on the ground of a previous separate Irish commission. (^) 287. In all cases of concursus or bankruptcy, the priorities between unsecured creditors must be distinguished from any rights of mortgage or lien. These must always be enjoyed according to the laws in force in the situation of the effects to which they apply, being in fact real and not personal rights. It will be only the surplus which the assignees or curator, appointed in the domicile, can be allowed to appropriate for the benefit of the general creditors. Thus the title of the assignees will he held, even in England, inferior to that of an attaching creditor who ob- tained his judicial lien by commencing proceedings before the act of bankruptcy. 288. With regard to such assignments of property for the benefit of creditors as are not allowed by the law of the assignor's domicile, so far as they relate only to foreign property, they will necessarily be held valid even in the domicile, provided that, as contended for in the last chapter, the rule for the transfer of property in particular movables by the owner be there drawn from the lex situs. Still more will this be the case, if the assignment was made *while the debtor was domiciled in r;):o7fj-i another jurisdiction, where the preference of certain creditors is L J lawful, and he only afterwards came within the limits of the forum which has to pronounce on the assignment in case of his insolvency. But the debtor who makes a conveyance of this kind will in either case be exposed to the penalties with which, in his present domicile, an unlawful prefe- rence of certain creditors may be visited. " Although our courts might not be authorized to annul such contracts, as to their effects between the parties, yet they might well inquire whether it was not the intention of the legislature to afford the protection of the insolvent laws to such only as shall have abstained from giving an undue preference to certain cre- ditors, in derogation of that vital principle of our system, that the pro- perty of the debtor forms the common pledge of his creditors, and although such preferences may be tolerated by the lex loci. If thef legislature has (/) 1 De G. & J., 257, 282, 285. See Exp. Ootesworth, re Vanzeller, 1 D. & Ch. 281, and Exp. Chevaiier, re Vanzeller, 1 M. & A. 345. But could the place of ac- ceptance of the bills affect this qnestiou of procedure ? (ff) Merlin, RiSp., Faill. et Banqu., Sect. II., ? II., Art. X. ; Jurisprudence de la cour Superieure de Justice de Bruxelles, 1816, t. 2, p. 181. (A) Exp. Cridland, 3 V. & B. 94. 176 WESTLAKE ON PRIVATE INTERNATIONAL LAW. thought proper to declare such a condition, as one upon which shall de- pend the right to claim the benefit of the insolvent laws, which it is not denied they had an unquestionable right to do, then there is an end to the argument, unless it can be shown that the mere residence of the party in another state, Tor the existence of his eifects there,] dispenses him from a compliance with the condition. "(t) 289. It will be observed that, to found bankruptcies and insolvencies, a trading establishment is a sufficient substitute for a domicile strictly interpreted. Such an establishment is in truth a domicile of the firm, the personality of which is universally recognized in commerce, and calls imperatively for a recognition in English law, such as it has already ob- P,^n__, tained on the continent. (A;) The possibility has *been suggested L J that, with reference to the question of domicile, an English adju- dication, actually prior, may be a fraud on a Scotch sequestration, which would therefore stand in spite of it. (A When the same merchant has a trading establishment in two places, Kodenburg agrees with Burgundus in holding that the priorities between all his creditors, as to all his effects, must be decided by the law of that place which is his true domicile : only if he has a true domicile in each, do these jurists admit a double concursus.(m\ [*278] *CH AFTER X. MOVABLE SUCCESSIONS. 1. Jurisdiction as to the Movable I tination of Law, . . 293 Property of a Deceased | 3. Validity of Wills of Movables, 304 Person, .... 279 I 4. Construction and Operation of 2. Succession to Movables by Des- | Wills of Movables, . . 310 1. Jurisdiction as to the Movable Property of a Deceased Person. 290. Throughotit Christendom, the property of a deceased person — or at least the movable part of it — is vested by law in a representative or representatives continuing the person of the defunct, who must satisfy the claims outstanding against him, either fully or to the value of his succession, and who hold the surplus either for his or their own enjoyment, or for distribution among those interested. The proximate source of this is in the Roman jurisprudence, which not only made the heir, nominated either by the law or by testament,. represent his ancestor, but was so intolerant of any breach in the continuous line of representa- tion that, until, the heir took to the inheritance, it invested the estate (i) Andrews v. His Creditors, 11 Louis. 464, 477. (it) See Art. 286, and Mr. Ludlow's able paper in the Transactions of the Juri- dical Society, v. 2, p. 40. {I) Exp. Geddes, re Mowat, 1 G. & J. 414, 423. (m) Rodenburg, de Stat. Div., tit. 2, e. 5, s. 16. See Lord Eldon's remarks on the diflBculties attending a double concursus, in Selkrig v. Davis, 2 Rose, 314, 315. MOVABLE SUCCESSIONS. I77 itself with quasi-personal qualities as standing in its late owner's place. Its remoter source is in the general character of western civilization, which rests upon the family as the integrant element of the state, and thus involves the perpetuity of the family, and *excludes the r^nyq-i confiscation or dispersion of the inheritance on the death of the <- -I ancestor. But the original idea of the continuity of the person, which in the Roman heir was simply and rigidly expressed by a continuity both of interest and burdens, often throwing on him a damnosa hcere- ditas, has been so far and variously modified that in England, for in- stance, the continuity of burdens has been entirely separated from that of interest : the former, with the technical property necessary for sup- porting them, being thrown on the executor or administrator, the latter being vested in the legatees or next of kin, for whom the executor or administrator holds the surplus in trust. 291. Now suppose a movable succession comprising articles situate in different jurisdictions. First, a transferee of what I have called the technical property must be created by each jurisdiction for the portions of the succession within it, since the territorial principle allows no other sovereign to exercise authority there. It is in fact the question of creating a legal owner for certain special articles the bare property in which is considered as vacant by death, and not that of transmitting the beneficial interest of the defunct in his entire estate after discharge of burdens. Hence no one claiming to be a representative, whether a testato or ab intestato, can meddle with any portion of the succession before proving the will, or receiving a grant of administration, or some other formal induction into the property, in the forum where such portion is found (a) 292. But, in order to preserve as far as possible the singleness of the representation, it has been decided, first, that if there be a will, the juris- diction of the testator's *domicile can alone decide upon its vali- |-^.^„-.-, dity, and, secondly, that the person who obtains administration L "^ J as next of kin in the jurisdiction of the intestate's domicile, or his attorney, is entitled to a similar grant in any other jurisdiction where the deceased had personal estate.(6) Thus, when the will of one domi- ciled abroad is offered here for probate, if its validity has already been established in the forum of the domicile, it will be admitted here on the strength of the foreign judgment.(c) If not established abroad, and not con,tested here, the probate will pass in England on affidavit of the law of the foreign domicile, when the will is found conformable thereto ■.{d'j but, if contested here, proceedings will be suspended till the foreign jurisdiction has pronounced for or against the validity.(e) And, with regard to the second of the above rules, it does not apply to one who in (a) Our courts so uniformly refuse to act on foreign probates or administrations, that it is sufficient to refer for the principle to the dicta in Pipon v. Pipon, Ambl. 25, and to Price v. Dewhurst, 4 My. & Cr. Y6. See also Tourton v. Flower, 3 P. W. 369. (b) Per Lord Mansfield, in Burn i. Cole, Ambl. 416. (c) Larpent v. Sindry, 1 Hagg. Eccl. 382. \d) Maraver's goods, 1 Hagg. Eccl. 498. (e) Hare v. Nasmyth, 2 Add. 25 ; De Bonneval v. De Bonneval, 1 Curt. 856. February, 1859. — 12 178 WESTLAKE ON PRIVATE INTERNATIONAL LAW. the forum domicilii has obtained administration as a creditor : it is then discretionary in the forum situs to grant the local administration to the same or another person. (/) The universal successor is appointed by the personal jurisdiction, though his title must be confirmed in the situs of the chattels : but the limited beneficial interest of a creditor prevents his being regarded in that light. Nor even where there is a universal successor, is the court so far bound by the mere form of the foreign proceedings but that, if it sees fit, it may only grant administration with the will annexed to one who in the testator's domicile has obtained pro- bate as constructive executor.(gr) In all these cases, the probate or admi- r*9Rn oistration granted in the domicile is called the *prineipal, that in L " J the siiMS of any other part of the succession the ancillary, adminis- tration, the latter term being used in a general sense, as including probate or any other mode of representation by judicial appointment or confirma- tion : and either the principal or ancillary, as limited to the chattels having a particular situs, may be termed a local administration. 293. And now, by st. 21 & 22 Vict. c. 56, it is " competent to in- clude, in the inventory of the personal estate and effects of any person who shall have died domiciled in Scotland, any personal estate or effects of the deceased situated in England or in Ireland, provided that the value of such personal estate and effects situated in England or Ireland respectively shall be separately stated in such inventory. "(/i) And " when any confirmation of the executor of a person, who shall" by the interlocutor of the commissary " be found to have died domiciled in Scotland, which includes personal estate situated in England or Ireland, shall be produced in the principal court of probate in England, or in the court of probate in Dublin, such confirmation shall be sealed with the seal of the said respective court, and shall thereafter have the like force and effect in England or Ireland respectively, as if a probate or letters of administration, as the case may be, had been granted by the said re- spective court of probate. "(t) 294. Correspondingly, by the same statute, " when any probate or letters of administration to be granted by the court of probate in Eng- land or Ireland respectively to the executor or administrator of any per- son who shall therein, by any note or memorandum written thereon signed by the proper officer, be stated to have died domiciled in England r^9on-i or Ireland respectively, shall be produced in the commissary L "^ J *court of the county of Edinburgh, the commissary clerk shall indorse or write a certificate thereon ; and such probate or letters of administration, being duly stamped, shall be of the like force and effect, and have the same operation in Scotland, as if a confirmation had been granted by the said court.'Y/i-) 295. In considering generally the rule that property of a deceased person cannot be possessed except under an administration granted in the situs, I assumed, as was necessary for the establishment of the prin- ciple, that its situs is not changed between the time of the death and (/) Lord Mansfield, in Burn v. Cole, nbi supra. (g) Read's goods, 1 Hagg. Eccl. 474; Mackenzie's goods, Deane, 17. [h) Sect. 9. (!) Sects. 12, 13. {k) Sect. 14. MOVABLE SUCCESSIONS. I79 that when the attempt is made to reduce it into possession. Let us now examine what eflfect such a change will have. The principle appears to be that every administration, principal or ancillary, operates on such goods of the deceased as either are when it is granted, or at any subse- quent time shall be, within the jurisdiction of the court from which it issues. The property in all such goods is vacant, and the jurisdiction where they are found, and it alone, can confer it. If indeed, before the goods come into jurisdiction A., they have already been possessed under an administration granted by jurisdiction B., then the administration granted in A. cannot affect them, whatever the order of the grants as to priority, because the property in the goods was not vacant when they arrived in A. : they were in fact no longer the goods of the deceased, but of the B. administrator. But, for convenience, and also as a result of the maxim that en fait de meuhles possession vaut titre, the same effect is not attributed to an administration in B. under which possession might have, but has not, been taken before the arrival of the goods in A. Thus in an American case, where there were stage-coaches and stage-horses belonging to a daily line ^running from one state to ri^c)Qn-, another, it was said that, if the administrators in the two states ^ " J had been different, " the property must have been considered as belong- ing to that administrator who first reduced it into possession within the limits of his own state."0 And, " according to the common course of commercial business, ships and cargoes and the proceeds thereof, locally situate in a foreign country at the time of the death of the owner, always proceed on their voyages and return to the home port," where " they are taken possession of and administered by the administrator of the forum domicilii." {ni) 296. Let us apply these principles, established for corporeal chattels, to debts due to the deceased, which may at the time of the death be recoverable in different forums, as that of the debtor's domicile and that of the contract, and which may, by a change of the debtor's domicile, or by his coming casually within a jurisdiction where such casual presence is admitted to found the process, become after the death recoverable in still other forums. By the analogy, such a debt will be recoverable in any forum where the action will otherwise lie, by an administrator who has obtained his grant from that forum, without the necessity of a grant from the forum where the debt must have been recovered at the time of the death. The English decisions bearing on this point are curiously involved with the notion of certain kinds of debts as having a situs iden- tical with that of the instrument by which they are evidenced, a notion which, as we know, was influential in our municipal law in determining the jurisdiction of local courts of probate. It has however been deter- mined that a grant in the forum of this artificial situs, when that is foreign, is not necessary to sustain a suit in England :(m) *and r-^naA-, so far this agrees with the principle that an adniinistration in the L J forum of the suit is alone necessary. 297. The conclusions of the last article are subject to the remark that (Z) Orcutt V. Ormg, 3 Paige, 459, 465. (m) Story, s. 520. (n) Whyte v. Rose, 3 Q. B. 493. 180 WESTLAKB ON PRIVATE INTERNATIONAL LAW. if by any means, such as exist in tlie ease of negotiable paper, the debt can under an administration be reduced into what is equivalent to pos- session without actually receiving it from the debtor, the debtor may then be sued in any other forum without the necessity of administration being granted therein. Thus if the representative under an administra- tion in A. becomes possessed there of notes payable to bearer, he may sue thereon in B. as the legal owner and bearer without taking out ad- ministration in B. : or if the notes were payable to the deceased's order, and they are indorsed by the representative who gets them under the administration in A., the indorsee may sue in B. without taking out any farther administration. (o) But such a reduction into possession is not operated by getting hold of a deed of covenant, under an administration granted in the artificial situs attributed to it by the English rules above alluded to. To sue on such a deed in England, there must be an Eng- lish administration, notwithstanding a foreign grant where the deed was hona notahilia at the death. (^) 298. It is obvious that since the question, what debts are properly recoverable under any local administration, depends on rules of juris- diction which are subject to differences of opinion, the farther question arises, whether a recovery by one local administrator will protect the debtor in a suit by another, brought in a forum by the rules of which the former recovery would not have been allowed. Thus, an English ad- ministrator recovers in England, on a contract not made in England, and P^_Qp.-. from a debtor not domiciled *in England, the jurisdiction being L -I founded on the defendant's casual presence here. Will that recovery protect the debtor from a suit by the local administrator of his, the debtor's, domicile, by the law of which, we will suppose, the defend- ant's casual presence is not sufficient to found the jurisdiction ? Sup- posing the recovery to have been by the testator or intestate, the afiirma- tive would admit of no doubt, because payment to the creditor is satis- faction in fact, wherever made. But we shall see that according to the preponderance of authority in England and the United States, each local administrator must administer the values received by him, for the benefit of the deceased's creditors, according to the priorities given by the law of the forum which appointed him : so that it may not be indifferent to the parties concerned by which local administrator the debt is received. But the payment made under judicial — and therefore, to a private per- son, irresistible — authority ought, in justice, to protect the debtor from all farther claim : and similar protection ought, I think, on the same principle, to be furnished by a payment made without suit, but to a local administrator who had at the time the power of enforcing it by suit. And these points appear to be well established in England. It is true that, in an old case of the year 1571, (g) a release by an Irish administrator to a merchant of Waterford was held no answer to an action by the English administrator on a bond which at the death was lona notahilia in Ens- (o) Story, s. 517, and see above, Art. 244. [p) Per curiam, in Whyte r. Rose, 3 Q. B. 507, notwithstanding Hathwav v. Phaire, 1 Man. & Gr. 159. (j) Daniel t. Lucre, Dyer, 305 ; Dalison, 76. MOVABLE SUCCESSIONS. 181 land, but the reason probably was that the Irish administrator could not have recovered for want of being able to make profert of the bond ; so that, in spite of th.B prima facie aspect given to the case by the defend- ant's domicile, it is rather an authority for the principles here maintained, *which are farther supported by Shaw v. Staughton,(r) and the r:(-f)Qn-i argumentative remarks in Huthwaite v. Phaire(s) and Whyte v. L *" J Rose.(<) 299. But what if a debtor to the estate pays a local administrator who could not have recovered from him ? In that case it may be said that there is no reason why he should not suffer the loss caused by his own facility, and the old case just quoted is a direct authority for his having to pay again. (it) But the American dicta are for the sufficiency of the discharge. (x) " Is not," asked Chancellor Kent, " the policy of the law sufficiently answered, when our courts refuse to lend their assistance to any authority not derived from our own laws, touching the administra- tion and distribution of assets ?" 300. Lastly, if a local admistrator obtain a judgment against a debtor, but payment is not made under it, he may sue in his own name upon the judgment in any other local jurisdiction, without taking out administra- tion there, " for he makes himself accountable for it" in his own forum "by bringing his action. "(y) And, on the other hand, it is said in the same case that after such judgment no other local administrator can sue, either on the judgment, " not being privy to it," or " on the original contract, for the defendants might plead in bar the judgment recovered abroad."(y) But the conclusiveness of a judgment by a foreign adminis- trator as a bar, and the right of maintaining an action upon it, must of course be both taken subject to *the limitations which apply to r-iftton-t the international effect of foreign judgments generally. }- J 301. When any property of the deceased has, under the rules we have been considering, been properly reduced into possession by an adminis- trator, it is thenceforward treated as his in every jurisdiction. If he remits it to a foreign country, it cannot be taken from his agent by the administrator appointed in that country.(«) Nor is there any difference in respect to this, or any of the preceding rules, between a principal and an ancillary administrator. We shall find a distinction in their duties as administrators, but their full legal title to the property fairly possessed by them is equally protected, and the principal cannot recover from the ancillary that which the latter has so obtained, because the latter must himself administer it in the ancillary jurisdiction. (a) 302. Indeed, the duty of an administrator, taking, as before, that term to include any judicial representative, is to discharge the debts of the deceased out of the assets which come to his hands, and either to distri- bute the surplus among those beneficially entitled, or to remit it to the (r) 3 Keble, 163. W 1 Man. & Gr. 159, 162. (t) 3 Q. B. 493, 510. («) Daniel v. Lucre, ubi supra. [x) Chancellor Kent, in Doolittle v. Lewis, 7 Johnson, Ch. 49 : Justice M'Lean, in Mackey v. Coze, 18 Howard, 104. (i/) Talmage v. Chapel, 16 Mass. 71. (z) Ourrie v. Bircham, 1 Dow. & Ry. 35. \a) Preston t. Melville, 8 CI. & F. 1. •182 WESTLAKE ON PRIVATE INTERNATIONAL LAW. principal administrator to be so distributed by bim. This must be done under the superintendence of the judge from whom he derives his autho- rity,(6) to whom, and not primarily to any private person, he is account- able. Hence he cannot be sued as administrator, whether by creditors, heirs, or legatees of the deceased, in any other jurisdiction than that of the sovereign who appointed him. If he transmit the assets into another jurisdiction, then he who would there obtain redress must constitute him- self administrator there, in which character he may claim the assistance r*9SRn °^ *^® local courts in obtaining an administration *of the assets L J which have been brought by the foreign administrator within its jurisdiction. (J5) Nor again, if the relief is not sought out of assets of the deceased, still distinguishable as such, brought by the foreign adminis- trator within the jurisdiction, but from such administrator as having so dealt with the assets as to make himself personally liable, and as domiciled or present, or having effects of his own, within the jurisdiction, still the suit will not be entertained without administration taken out here ;(c) for any value recovered in it will be unadministered assets of the deceased, which cannot, as we have already seen, be recovered in any forum without a grant of administration therein. Unless indeed the foreign " executor or administrator has so dealt with" the fund transmitted to this country, or for which he has made himself personally liable, " that it has ceased to bear the character of a legacy or share of a residue, and has assumed the character of a trust-fund in a sense different from that in which the executor or administrator held it : if it has been taken out of the estate of the testator, and appropriated to or made the property of the cestui que trust, it may not be necessary that the cestui que trust should bring before the court the personal representative of the testator in a suit to recover that part of the estate. "((?) 303. Hence also one who has accepted abroad a grant of administration without benefit of inventory, and has consequently made himself liable r*98QT ^°'' P^y™®'**' °^ ^^^ debts *irrespective of the value of the assets, L "^ J cannot, even by a creditor who has taken out administration here, be sued in the English chancery upon that liability, or unless he has received English assets, as executor de son tortAe) It is another ques- tion whether he might not be sued at common law, on the personal obli- gation to the creditors contracted by him through acceptance of the unlimited administration, and, if so, the plaintiff would not need an English administration. But the defendant's liability as representing the deceased, on which alone the suit in chancery could be framed, simple personal obligations not being there enforceable, exists only in the juris- (J) Jauncy T. Sealej, 1 Tern. 397. (bb) Lowe v. Fairlie, 2 Madd. 101 ; Logan v. Fairlie, 2 Sim. & Stu. 284; Bond T. Graham, 1 Hare, 482. See also Sandilands t. Innes, 3 Sim. 263. (c) Tyler r. Bell, 2 My. & Cr. 89 ; overruling Anderson t. Gaunter, 2 Mr. & Ke. 763. In connection with this, it is useful to know that an executor of an executor is not executor of the original testator unless both probates were granted in the same court: Jernegan v. Baxter, 5 Sim. 568; Twyford v. Trail, T Sim. 92 ; over- ruling Fowler v. Richards, 5 Russ. 39. {d) Sir James Wigram, in Bond v. Graham, 1 Hare, 484 : and see this doctrine acted on in Arthur v. Hughes, 4 Beav. 506. (e) Beavan t. Hastings, 2 K. & J. 724. MOVABLE SUCCESSIONS. Ig3 diotiou from which he derives his represeiitatioQ. And, from the entire absence of privity between the several local administrators, in respect of the liabilities incurred* by them, a judgment recovered against one v^ill not be accepted in another jurisdiction, as even prima facie proof of a debt due from the estate, in an action against the different local adminis- trators there j(/) though it might be otherwise, if the same person were administrator in both countries at the time of the judgment. (i;) 304. But will the administrator be accountable in the jurisdiction from which he derives his title for assets of which he has succeeded in possessing himself, but for which another local administration ought to have been taken out ? This may happen by, a debt being paid him, or chattels being delivered to him, in a foreign country without suit, or by a recovery in a foreign country, if any such there be, which permits a suit without requiring a local administration. Now on the principle that an administration extends to the property of the deceased which is or *shall be within the jurisdiction, subject only to the condition i-:(c9qa-i that it shall not have ceased to be the property of the deceased, <- J and become that of an administrator, by reduction into possession under a lawful administration,' the administrator should be accountable, in his own jurisdiction for these values when he brings them within it. And this was held in Dowdale's case,(A) where it was said that " if the execu- tors have goods of the testator in any part of the world, they shall be charged in respect of them ; for many merchants and other men, who have stocks and goods to a great value beyond sea, are indebted here in England, and God forbid that those goods should not be liable to their debts, for otherwise there would be a great defect in the law." The same doctrine appears to be laid down by Lord Hardwicke in a case of Atkins V. Smith, (i) of which there is only a very short and obscure note, but is objected to by Story,(A) who however assumes that in Dow- dale's case the foreign assets had been collected under an Irish probate. This, which neither appears in the report nor is implied in the general observations above cited, would entirely alter the case. For the Irish executor being, as we have already seen, liable only in Ireland to account for the assets received under his Irish probate, could not, as such exe- cutor, be sued in an English court of law, though a complete adminis- tration of them in chancery, as assets brought into England, might be obtained through an English grant by a plaintiff administrator under it. Story's suggestion that an administrator receiving assets in a foreign country, without a due local grant, should be accountable there as exe- cutor de son tort,{l\ may also be received, as it appears to have been in America ; but that is no answer to the reason given in Dowdale's case for making him liable in his own jurisdiction as well. *305. 'The administration of the assets, to which each local r^icoqi-i representative is bound in the manner we have now considered, L J (/) Brodie v. Bickley, 2 Rawle, 431; Stacy v. Tlirasher, 6 Howard, 44 ; M'Lean V. Meek, 18 Howard, 16. \g) Per curiam, in Brodie v. Bickley, 2 Eawle, 437. \h) 6 Coke, 46, b ; Cro. Ja. 55. (i) 2 Atk. 63. \k) S. 514, a. [I) S. 514. 184 WESTLAKE ON PRIVATE INTERNATIONAL LAW. refers to the payment of the debts of the deceased; for the priDoiple is that until these are satisfied the property will be retained within the jurisdiction, but that the surplus then remaining is transmissible to the deceased's domicile, to be distributed by that forum among his heirs and legatees, (mj Hence also if a testator make separate wills of his effects in different countries, the administrator cum testamento annexo appointed in his domicile must also have the foreign will annexed to his grant. (h) To clear the estate, in short, is the duty of an ancillary, and of the principal considered merely as a local, administrator : to distribute it is the duty of the principal administrator as such. For it is only by regarding the estate of the deceased as a unit, that it can be claimed by hiS' personal jurisdiction from the jurisdictions in which the several articles composing it exist : but again it is only his beneficial interest in it, or the balance of value after deducting the sum of its negative from that of its positive items, which can be regarded as a unit. The first care of the jurisdiction in which property vacant by death is found, must be to vest it in some one who shall discharge the burdens on it : not till then is it free to follow the international courtesy which refers to his personal law the beneficial continuation of his person. 306. Upon the conduct of each local administration in discharging r*9C(9n these burdens many important questions arise. *First, the re- L "" -I muneration, if any, which the administrator receives out of the estate, depends on the practice of the court whose officer he is. Thus, if a testator domiciled in India names different executors for India and England, the Indian executors, if no legacy is accepted by them for their trouble, (o) will be entitled to a commission of 5 per cent, on the assets received by them, though, by transmitting those assets here, they may ultimately have to receive their commission under the authority of an English court :(p) but the English executors will not be allowed any remuneration. (g) 307. Next, each local administrator, being only accountable to his own jurisdiction, must discharge the debts in such order, as to preference or priority between creditors, as the practice of that jurisdiction de- mands. The debts here spoken of are not merely those owing to cre- ditors within the jurisdiction, or upon obligations contracted within it, but all which the deceased may owe anywhere, for it is not until all are discharged that the principal admistrator can justly claim any thing on account of the succession : only a debt owing on a foreign judgment, or any other kind of foreign security which does not fulfil the technical re- quisites for placing it in a given rank according to the rules of the forum, (m) Preston v. Melville, 8 CI. & F. 1 ; Meiklan v. Campbell, 24 Beav. 100. The latter case shows that its discretionary power of ordering service abroad will be used by the court of chancery in aid of an ancillary administration, that is, to enforce administration here of the English assets of a foreign testator. In \Yea- therley v. St. Giorgio, 2 Hd. 624, the difference between principal and ancillary administrations does not appear to have been considered. (re) Spratt v. Harris, 4 Hagg. Eocl. 405. (o) Freeman v. Fairlie, 3 Mer. 24 : which shows also that the legacy, if refused, must be refused within a moderate time. (p) Chetham v. Audley, 4 Ves. 72 ; Cockerell v. Barber, 1 Sim. 23. (g) Hovey v. Blakeman, 4 Ves. 596. MOVABLE SUCCESSIONS. 185 will be classed among obligations of the lowest order.(r) And if assets, by transmission after the death, come to be administered where they would not have been recoverable, the rights of the creditors against them are considered to be vested, so as not to be affected by such transmission, and the priority as to each part of the assets will depend on the law of that *forum by the authority of which they were originally pos- rjisncvq-] sessed.(s) Hence the priority as to the produce of the sale of L J land can never depend on any other law than that of the situs. (t) 808. The doctrines of the last paragraph are firmly established in the United States. (m) But upon the continent of Europe it has been more usual to bold that the priorities of creditors against the assets depend on the law of the deceased's domicile. This arises from what has already been alluded to, the original Roman conception of an absolute continua- tion of the deceased's person, throwing therefore on the heir all the burdens as well as all the benefits of the succession. For, in conse- quence of this uninterrupted transmission, no change is made in the several special forums of the ancestor's obligations, (.-c) while, for his domicile as the general one, is substituted that of the heir upon whom they pass over personally. Hence, instead of the conception of the administration of an insolvent estate, we have that of a concursus of cre- ditors against the heir; and, when the heir is allowed to limit by an in- ventory the extent of his liability, it follows naturally that this concursus, so far as concerns his ancestral debts, shall be separated from any claims of his other creditors, and held in that forum where he enters on the succession. A similar result is arrived at, though perhaps less correctly, by asserting a special forum, in the place where he enters on the suc- cession, for the obligations, confessedly of a contractual nature, which by that entrance the heir incurs towards the ancestral creditors. (y) It is *impossible, either way, to , apply a result so reached to the r:itnQ4^-| jurisprudence of nations which have not restrained, but aban- L J doned in principle, the personal liability of the universal successor ; who do not in fact employ the conception of a succession, except in reference to the surplus remaining after the payment of debts ; and among whom therefore any identity of the beneficial heir with the administrator, who must pay those debts out of the assets, is altogether casual. There can, under such a jurisprudence, be no concursus except against the assets, without relation to any forum of personal obligations. No doubt a comity mighi have been established in England and America to this efiect, that the assets collected under every ancillary administration r) Cook T. Gregson, 2 Drew. 286. s) Cook V. Gregson, 2 Drew. 286. (t) Hanson v. Walker, T L. J. Ch. 135. u] Story, s. 524. (x) Dig. 5, 1, 45. (yj There is still another view, perhaps the least tenable of all on Roman grounds, that the heir founds for the ancestral creditors a special forum against himself in every place where he possesses himself of a part of the estate. This, in its application to the concursus of the creditors against him, would lead directly to determining their priorities as to each portion of the assets by its own lex situs: but for an English lawyer that doctrine requires no such questionable support. For the rest, these points are chiefly mooted abroad with regard to the query whether the co-heirs are bound in solidum or pro virili parte. See particularly Boullenois, t. 1, p. Vll, et seq. ; Merlin, R^p., Dette, ? IV. ; Savigny, v. 8, p. 238. 186 WESTLAKB ON PRIVATE INTERNATIONAL LAW. should be remitted to the domicile, in order that the principal admi- nistrator might there apply them in payment of creditors as well as of beneficiaries. Such a comity would have been analogous to the inter- national recognition of the title of assignees in bankruptcy, and would have led to a similar result, in determining priorities by the laws of the single concursus. But no such rule has been established by the courts of this country, or of the United States ; on the contrary, as we have seen, their doctrine is that only the surplus is transmissible to the domi- cile. Wherefore the same principles which, under the continental jurisprudence, lead to determining priorities by the law of the domicile of the defunct, in their application to our jurisprudence refer the same question to the situs of the assets, as determining the administration under which they are recoverable. *309. Nevertheless, in Wilson v. Dunsany, the view here L -I opposed was made to prevail. (y) The judgment is short, and does not clearly state the reasons. The argument of counsel enlarges on the topic that personal property follows the law of the owner's domicile, but without noticing that property is primarily only in a corporeal thing, that its conception is enlarged scientifically in order to include obligations so far as increasing or diminishing the means of the party, and that with obligations in this relation the questions which arise between the several creditors of the same debtor have nothing to do. It is by no means from any consideration of property, but from the maxims applicable to a concursus, that the continental jurists reached a similar, and in their case it seems a right, conclusion. For England, the prin- ciple of Cook V. Gregson appears more correct. 310. 'As to the future application however of that principle, when both the jurisdictions concerned are British, a question may arise on the recent statute. The administration granted in any one part of the United Kingdom being now capable of being made available in any other part, it may be said that a single British administration has been established, and that, with one concursus, we must also have one rule of priority, from which ever part of Great Britain and Ireland the assets come. Since however the Scotch confirmation, for instance, is to have the same effect, when made available here, as an English probate or administration would have had, while such a probate or administration would have produced a liability to account here for the assets received under it — and similarly for the other cases — it appears that the only re- lief is from the burden of proving the same facts, as to the death, domi- r*9Qn ^^^^> ^^'' *° several courts, and that separate local *adminis- L J trations, with separate accountabilities, and therefore rules of priority, are still intended. 311. Thus far there is no difference between ancillary and principal administrations, but if the ancillary administration take place here, there is nothing to prevent our chancery from adopting any proceedings of the forum domicilii, or any accounts taken there, and it often does so for convenience when the bulk of the property lies in that jurisdiction. («) (y) 18 Beav. 293. (z) Meiklan v. Campbell, 24 Beav. 100, 104. MOVABLE SUCCESSIONS. 187 Also, when tte ancillary administration has been completed here, al- though, as we have seen, the surplus is transmissible for distribution to the forum domicilii, yet this is only permissive, each representative being accountable to the tribunal which appoints him for all that he re- ceives by its authority : and the same end is sometimes more easily accomplished by a distribution under the authority of our court, the de- cision of the strictly competent forum as to the persons beneficially entitled being for that purpose adopted. («) The same principle furnishes an answer to the question — suppose the estate cleared of debt without an administration suit, and the executors in both jurisdictions the same : in what forum must a claimant of the beneficial succession sue them for the surplus ? It has been decided in Innes v. Mitchell,(a.) that such a plaintiff is not confined to the principal forum, that he may sue in the ancillary forum for so much of the property as was there received under the ancillary probate, and is therefore there to be accounted for : and that this will be so even though the executors, or those adverse claimants to whom they may have paid over the surplus, have removed the pro- perty into the jurisdiction of the principal forum. *312. In the above investigation, reference has frequently been r-ifc^a'T-i made to the surplus which remains of the assets in any jurisdic- L -I tion after a complete administration there. Now it is often a difficult question what is a complete local administration, and how it shall be made; and these points appear to have received more attention in the United States than in England. It has been there said that in the case of an estate solvent on the whole, but of which the portion recoverable in any one of their jurisdictions might be insufficient to pay all the debts in full, the citizens of each jurisdiction ought to be paid out of the assets there. " For it would be but an idle show of courtesy to order the pro- ceeds of an estate to be sent to a foreign country, and oblige ou^" citizens to go or send there for their debts, when no possible prejudice could arise to the estate or those interested in it by causing them to be paid here, and possibly the same remark may be applicable to legatees living here, unless the circumstances of the estate should require the funds to be sent abroad. "(6) The difficulty is greater in the case of an insolvent estate, and on this the same learned and able judge, Chief Justice Parker, offered the following observations. 313. " What shall be done, to avoid, on the one hand, the injustice of taking the whole funds for the use of our citizens to the prejudice of foreigners, and, on the other, the equal injustice and greater inconve- nience of compelling our own citizens to seek satisfaction of their debts in distant countries ? The proper course would undoubtedly be to retain the funds here, for a, pro rata distribution according to the laws of our state among the citizens thereof, having regard to all the assets, either in the hands of the principal administrator or of the administrator here, and («) Meiklan v. Campbell, 24 Beav. 100, 104. (a) 4 Drew. 141 ; 1 De G. & J. 423, 432 ; which case shows also that the court will support its jurisdiction under the circumstances by ordering service abroad. (6) From the judgment in Dawes v. Head, 3 Pick. 145. 188 WESTLAKB ON PRIVATE INTERNATIONAL LAW. r*9Q«T *li^ving regard also to the whole of the debts which by the law L J of either country are payable out of those assets ; disregarding any fanciful preference which may be given to one species of debt over another, and considering the funds here as applicable for the payment of the just proportion due to our own citizens; and if there be any residue, it should be remitted to the principal administrator to be dealt with according to the laws of his own country, the subjects of that country, if there be any injustice or inequality in the payment or distribution, being bound to submit to its laws. The only objection which can be made to this mode of adjusting an ancillary administration upon an insolvent estate, is the difficulty and delay of executing it. The difficulty would not be greater than in settling many other complicated affairs, where many persons have interests of different kinds in the same funds. The powers of a court of chancery are competent to embrace and settle all cases of that nature, even if the powers of the court of probate are not sufficiently extensive; which however is not certain. The administrator here should be held to show the condition of the estate abroad, the amount of property subject to debts, and the amount of debts; and a distribution could be made upon a perfectly fair and equitable principles. The delay would undoubtedly be considerable, but this would not be so great an evil as either sending our citizens abroad upon a forlorn hope to see the fragments of an insolvent estate, or paying the whole of their debts out of the property without regard to the claims of foreign creditors. And if the probate court has not sufficient power to make such an equitable adjustment, a bill in equity, in which the administrator here should be the principal respondent, would probably produce the desired result, and then time and opportunity could be given to make known the whole con- r*9QQn <^i*-io'^ of ^^^ estate, and all persons interested might be *heard L J before any final decree : in the meantime the administrator could be restrained from remitting the funds until such decree should be passed."(c) 2. Succession to Movables hy Destination of Law. 314. The law of an intestate's domicile as the rule for his succession has sometimes been rested on an assent which he is supposed to imply, and to this there is no objection in the case of his having enjoyed the power to vary the destination which the law would have given to his property. But no such reason can apply to the case in which the law of his domicile absolutely prescribes that destination, in whole or in part, by a provision not subject to the wills of testators : and yet it is certain that that law is then also the rule. In truth, the testamentary power, where it exists most unfettered, has attained that point by progressive enlargement, and in some countries the tide has recently set towards its restriction ; so that it is more in accordance with legal history to regard destination by law as normal, and not to seek in implied assent a justifi- cation for the preference which the lex domicilii is allowed to have over (c) Dawes v. Head, 3 Pick. 147. MOVABLE SUCCESSIONS. 189 the lex situs, whether in case of voluntary intestacy, or of a statute pre- cluding the free bequest of the whole or of some fixed proportion of the individual's fortune. It is firmly based in the intimate connection of the subject with the person of the deceased. 315. This preference appears to have been always recognized in Eng- land, though in some cases before Lord Hardwicke ineff'ectual attempts were made to shake it.(cZ) But in Scotland the lex situs is upheld by the older authorities, *nor can the true rule be considered as |-:|.qnfi-i having been fully established for that country till the decision of L J Balfour v. Scott.(e) That was a ease of distribution on intestacy, and in Hog V. Lashley(/i it was ruled that the lex domicilii empowered a tes- tator to exclude a child from the legitim given by the lex situs. Balfour V. Scott also settled another important point, namely, that the heir of Scotch heritable estate, though compellable to collate it if he claim a distributive share in the personalty of his intestate ancestor domiciled in Scotland, is not so compellable if the ancestor were an Englishman : for no such condition of collation is imposed by the English law, which gives him his interest in the personalty. 316. Farther, however nicely the evidence may be balanced between competing domiciles, one of them must, at least for the object of distri- bution, be pronounced for. "The next rule is," said Lord Alvanley, " that though a man may have two domiciles for some purposes, he can have only one for the purpose of succession. That is laid down expressly in Denisart under the title Domicile ; that only one domicile can be acknowledged for the purpose of regulating the succession to the personal estate. I have taken this as a maxim, and am warranted by the neces- sity of such a maxim, for the absurdity would be monstrous, if it were possible that there should be a competition between two domiciles as to the distribution of the personal estate. It could never be possibly determined by the *casual death of the party at either. That would be [-jijon-i-i most whimsical and capricious. It might depend upon the acci- L J dent whether he died in winter or summer, and many circumstances not in his choice, and that never could regulate so important a subject as the succession to his personal estate.'Yf/) Supposing however that there is an absolute impossibility of fixing the domicile, even that of origin being uncertain, his lordship, as we saw in Art. 34, considered a recourse to the lex situs necessary : but Savigny solves the same difficulty by the casual place of death. (6) 317. One application of the general rule is, or may be, to the legitimacy of the successors. " The law of the domicile," says Story, " is to decide (d) Pipon T. Pipon, Ambl. 25 ; Thome v. Watting, 2 Ves. 35. (e) 6 Bro. P. 0. 550. As the house of lords held the intestate's domicile to have been English, the point naust have arisen on the cross-appeal, on which it was decided in effect that the personal estate in Scotland was distributable by Eng- lish law. The true doctrine had been laid down by Lord Thurlow in the Scotch case of Bruce v. Bruce, 2 Bos. & Pul. 229, n., (see dictum in page 230;) 6 Bro. P. C. 566 ; but the point did not arise there, as the domicile was ultimately held to be English, and there were no effects in Scotland. (/) 3 Hagg. Eccl. 415, u. ; 6 Bro. P. C. 611. {ff) Somerville v. Somerville, 5 Ves. 786. {h) V. 8, p. 296, note (6). 190 WESTLAKB ON PEIVATB INTERNATIONAL LAW. whether a person is legitimate or not, to take the succession. "(j) "It holds/' says Savigny of the same law, " also for the conditions of kinship generally, and thus for the existence of kinship traceable through wed- lock, as for legitimation. "(7c) On the other hand, it is plain that all the reasons which have been given for determining the legitimacy of a claimant once for all, by the appropriate law, as against the lex situs when he seeks to inherit land, apply with equal force against the lex do- micilii of the deceased when he would succeed to personalty. (?) And accordingly it was not on the ground of the lex domicilii testatoris that the word " children," when the question of legitimacy arose on it, was interpreted in a will:(m) a precedent which is fairly in point here. r*^n9n ^^^' •'^'^ Potinger v. Wightman,(K) it was held that a ^mother L J may through a change of residence acquire a benefit in the suc- cession of her child whose domicile is hers, provided the change was made without improper motive : and it seems as though Sir "William Grant considered that any direct view to the law of the new abode, as being more favorable to the mother, would be an improper motive. 319. Distributive shares do not give rise to all the questions properly belonging to succession. When the claims of creditors against the estate have been satisfied, the question by what portion of the estate the burden of those claims is primarily to be borne, being as I may say one internal to the inheritance, must be decided by the law of the deceased's domi- cile. Thus the Scotch heir of an English intestate, who has paid in Scotland movable debts of his ancestor, has been allowed to exercise here the right of relief given by our law against the personalty.(o) This prin- ciple however must give way when it conflicts with the authority of the lex situs to decide both what is realty, and to whom it is transmitted ; so that, if in the case just put the debts paid had been by Scotch law im- movable, the heir could not, as we have already seen, have availed him- self of our right of relief (jj) In effect the ancestor's heritable bond would have been equivalent to an alienation by him of so much of his immovable property, which therefore might be justly regarded as having never, to that extent, been included in his succession. 320. Again, two descriptions of imposts are commonly set by govern- ments on successions : those on their collection, and those on their trans- mission. Each in fact bears on the amount ultimately transmitted, but r*303n *^® former class, *duties on probates and administrations, being L J regarded as a remuneration to the state which protects the pro- perty and aids the representative to get it in, are charged in respect of the situs of the assets at the death. We exact them on property left by foreigners in our funds, or otherwise in the United Kingdom,(2) but not (i) Sect. 481, a. (k) V. 8, p. 314. (l) See above, Arts. 90-94. (m) Ee Wright's trust, 2 K. & J. 595. (n) 3 Mer. 67. (o) Winchelsea v. Garetty, 2 Keen, 293. See also Anon., 9 Mod. 66, and Bowa- man v. Reeve, Pre. Ch. 57*7. (p) Elliott V. Minto, 6 Mad. 16 ; Drummond v. Drummond, in Brodie v. Barry 2 Ves. & Be. 132. See above, Art. 76. (g) See the dictum in Thomson v. Advocate-General, 13 Sim. 164; 12 CI. & F. 29. These duties are in fact coextensive with the necessity for probate or ad- ministration. ^MOVABLE SUCCESSIONS. 191 on the foreign property of any one, though dying and even domiciled here, or though his executor may bring the property to this country and administer it here.M The other class, duties on legacies and distribu- tive shares, being directly imposed on the right of succession, are payable to the government and according to the law of the deceased's domicile, wherever the legatees or successors may reside, and wherever the property may be situate at the death, or may be afterwards remitted, (s) 321. Distributive shares and legacies will carry the interest of the country in which the assets have been placed by the administrators since they became payable, on the presumption that that interest has been made.(<) And when a testator left assets in two jurisdictions, in each of which his will was proved by certain of his executors, the legatees who sued in one of the forums, where there was an ample fund for their satis- faction, were held bound by their election, and could receive only the interest current there. (is) *322. Itremains to notice the opinion which subjectsimmovable rj^onA-i successions to the same law as movable ones, and which for a L J century past has gained ground in Germany, though in other parts of Europe the lex situs is maintained for land with less uncertainty than once attached to it. I can however scarcely suppose that even in coun- tries living under the Roman law the immovable property, there situate, of an intestate domiciled in England, would be subjected to the mode of succession pointed out by our statutes of distribution ; for they are so absolutely confined to personal estate, that they do not seem to constitute such a hx domicilii as would admit of extraterritorial application to land. The ease is diiFerent, when in two countries there exist laws of distribu- tion, unlike, but neither distinguishing land from chattels. A case which deserves to be here mentioned is Iha v. Rae, showing that by the native law, as administered between Gentoos in India, the Mitheela rule of inheritance is applied, even as to land situate where the general rule is that of another sect, on the death of one who performs his domestic ceremonies of mourning and rejoicing according to the Mitheela Shaster. (a;) 3. Validity/ of Wills of Movables. 323. On the continent, the formal requisites of a will as to attestation, holograph redaction, &c., &c., are of course submitted primarily to the maxim locus regit actum : and the first question is whether this maxim M Att.-Gen. v. Dimond, 1 Cr. & J. 356 ; Att.-Gen. v. Hope, 1 Or. m'. & R. 530 ; 8 Bl. N. R. 44 ; 2 01. & F. 84 ; Att.-Gen. T. Bouwens, 4 M. & W. 171. [s) Thomson v. AdTOcate-General, 13 Sim. 1 53 ; 1 2 01. & F. 1 ; overruling Att.- Gen. T. Cockerell, 1 Price, 165; Att.-Gen. v. Beatson, 7 Price, 560, and Logan v. Fairlie, 2 Sim. & Stu. 284 f and superseding, by a more general statement or de- cision, Att.-Gen. v. Jackson, or Forbes, 8 Bl. N. R. 15, and 2 01. & P. 48 ; Re Ewin, 1 Or.-& J. 151, and 1 Tyr. 91 ; Re Bruce, 2 Cr. & J. 436, and Arnold v. Arnold, 2 Mv. & Or. 256. \t) Malcolm v. Martin, 3 Bro. Oh. 50 ; Raymond v. Brodbelt, 5 Ves. 199. . («) Bourke v. Ricketts, 10 Tes. 330. {%) 2 Moore, I. A. 0., 132, 160. 192 WESTLAKE ON PRIVATE INTERNATIONAL LAW. is facultative or imperative. Supposing it to be facultative, whioli has been in all ages the opinion of most jurists, then there is the farther ques- r-^o(\r,-\ *io" whether the proper seat of the transaction, *the forms used L -I in which the testator has the option of employing, is his domicile, or the situation of the property; and again, whether any difference is made in the last question by the property being movable or immovable. There are, besides, the extreme opinions, on the one side, that the forms of the situation are imperative; and on the other that those of the domi- cile are imperative, at least on those who die there, for I am not aware that the latter forms have been held on the continent to be imperative on wills made abroad by those who die from home : and farther variations may be introduced by asking, for instance, whether the judges of the locus actus, if their own jurisprudence regards the maxim locus regit ac- tum as imperative, will be bound to apply the lex domicilii testatoris to a foreigner's will made within their jurisdiction in the forms of his domicile, supposing that law to regard the same maxim as only faculta- tive. The English lawyer will probably thank me for sparing him a dry list of the jurists who have passed their opinions on these endless combi- nations, since the total absence of any maxim in English law at all ana- logous to the locus regit actum prevents the subject from having here even an historical importance. He will be more interested to know that the French court of cassation has declared for the imperative obligation on wills of the forms of the place of redaction, even in reference to the will of a foreigner mad« in France in the forms of his domicile ■.(lA and that in Grcrmany, though the better opinion inclines to a free option be- tween the forms of the domicile and place of redaction, yet Savigny recommends a German who makes his will abroad by the lex loci actus to make another for safety, on his return home, by his lex domicilii. (z) r*^0R1 *32J:. In England it is well settled that we refer the formal L J validity of a will of movables to the law of the testator's domi- cile. Thus, if that domicile be English, we require the English Wills Act to be followed even though the will be made abroad, not having, as before remarked, any such maxim in our jurisprudence as locus regit actum. (ci) If the domicile be foreign, the only inquiry we make is whether the will would be admitted to operate there, without regarding whether its validity in the domicile results from its pursuing the forms ordinarily there required, or from the adoption in that forum of a will made in foreign form. (6) This appears to be the just application of the (j/) Decree of March 9th, 1853; Dev.— Car., 53, 1, 274; Fcelix, 3me edit., p. 166, n. (a). '^ (z) V. 8, p. 356. See above, Arts. 174, 175, on the analogous questions in con- tracts. (a) De Zichy Ferraris v. Hertford, 3 Curt. 468 ; 4 Moore, P. C. 339 ; Page v. Donovan, Deane, 278. (6) In The Duchess of Kingston's case, probate was granted here, as late as 1791, of the will of a lady domiciled in France both at the time of makino- her will and at her death, such will being conformable to the English and not to the French form: in Curling v. Thornton, 2 Add. 21. Also the form of the lex situs was anciently demanded in Scotland for Scotch movables : but that the forms of that law are not to be considered was decided in Hare v. Nasmyth, (2 Add. 25 ) both for Scotland and England. MOVABLE SUCCESSIONS. 193 principle that movable successions are governed by the personal law of the decedent. The same doctrine is firmly established in the United States, fc) S'^S. Admitting then the lex domicilii testatoris as a basis, we next come to certain questions which were raised in Curling v. Thornton,(c?) where Sir John NichoU admitted to probate a will which was said to be wholly null by the French law, on the grounds that, first, a British sub- ject could not divest himself of a British domicile, and secondly, that if the testator had so acquired a French domicile that it would have governed in case of intesta;cy, yet he retained a secondary one here suffi- cient to give efi'ect to a will made in England in conformity with our *law. But the principle laid down by Lord Alvanley in intes- r:t:qo7-i tacy, that for purposes of succession there can be but one domi- L J cile, has since been established for testacy also by the case De Zichy Ferraris v. Hertford, (e) in which a codicil to the will of an English peer, domiciled here, was rejected, though made by him at Milan, where he had a second residence, in Austrian form, and disposing of Austrian property. And the first ground was overruled by the decision of the court of delagates in Stanley v. BerneSj^/) reversing the judgment of Sir John Nicholl, who adhered to the opinion he had expressed in Curling V. Thornton, and establishing that a testator, though he may continue entitled to the privileges of a British subject, may yet so acquire a foreign domicile that his will made in English form, and dis- posing of English property, will be held invalid for non-compliance with the foreign requirements as to attestation. 326. In interpreting the above rules on the formal validity of testa- ments, the question may arise whether by the domicile is meant that at the date of the will, or that at the death, supposing the testator to have changed his residence during the interval. In the general continental view, it is the former alone which is intended : no other meaning can be given to the permission accorded to the testator to choose between the forms of his domicile and those of the locus actus, and as a will made in the latter manner would remain valid notwithstanding the change of a. domicile which was no element in its validity,(^gr) so also would one which the testator, in obedience to no rule, of law, but for his own con- venience, had preferred to make in the former. In the English view the thing assumes a ^different aspect. By referring ourselves ^,1:0001 to the law of the domicile, as that of the succession, we of course L -I mean the domicile at the death. If therefore- the change be from an English domicile to a foreign one, as this will be no longer, the forum of principal administration, the continuing yalidity of the English will, when offered for probate here, will have to be referred to. the law of the country where the testator resided at his death, and thus- will ultimately come to be determined on the answer given there to this international question. But if the change be from a foreign domicile to an English (c) Story, a. 468. {d} 2 Add. 6i U) 3 Curt. 468 ; 4 Mo. P. C. 339. (/) 3 Hagg. Eccl. 373, 44T. The decision of the delegates was followed in Moore v. Darell, 4 Hagg. Eccl. 346. (g) Foelix, no. 117. Febrtjaet, 1859. — 13 194 WESTLAKE ON PRIVATE IKTBRNATIONAL LAW. one, we shall have to decide for ourselves on the continuing validity of the foreign will, and then I submit that it should be maintained when- ever conformable either to the lex loci conditi testamenti, or to the law of the then domicile : for it never can be imagined that by the trans- ference of his domicile to England the testator intended tacitly to revoke his will, more especially since by the continental law, with which alone from his previous life he can be supposed to be acquainted, such trans- ference would not have that effect. "It has been held however that unless the will was executed according to the law of the person's last domicile, and the place of his death, it would not be valid although made according to the laws of the testator's domicile at the time it was made."(^) 327. A question sometimes arises how far the foregoing rules are applicable to instruments which partake in certain limited respects only of the testamentary character. And with this may be taken the analo- gous question, how far a power given by contract to executors or admi- nistrators is to be taken as tied by the same rules which apply to the r*^nQ1 P°^®'"^ given them by law. Thus, where an English *will gave L -la power to appoint personal property by a will, or by any writing purporting to be, or being in the nature of, a will, and attested by two witnesses, and the donee was domiciled at Naples, it was necessary to ascertain whether a will made by him conformably to English law and to the terms of the power, but not to Neapolitan law, was a good execu- tion. (i) It was held that since, by the construction put by English law on the terms of the power, no instrument could be a good execution of it which had not been declared testamentary by being admitted to pro- bate, it was incumbent on the English court of probate to pronounce on the testamentary character of the instrument in question : but it was not said by what law that court should guide itself in so doing, though per- haps it was assumed that it would follow the English law, and so the decision was understood by Story. (^) I should say that whether its want of conformity to Neapolitan law prevented or did not prevent the writing from being -a proper testament, it was in the nature of a will within the true meaning of the power, being revocable during life, and that therefore, being attested as the power demanded, it was a good exe- cution : the law to which, as a testament, the writing would have been amenable, seems irrelevant to its operation in declaring the trust of pro- perty held in trust under a former will. But if English law, which alone could be heard on the construction of that former will, would entertain no execution except by a writing declared by probate to be a proper testament, it would appear that the same law was bound to solve the difficulty it had created, by admitting the writing to probate. Chan- cellor Kent held that a power of sale, given to the executors and admi- r*^im nistrators of a mortgagee, might be exercised by the *adminis- L J trators appointed in the domicile of the deceased, without the necessity of an appointment in the situs of the land.(A (h) Nat T. Coon, 10 Missouri, 543 ; cited in the late editions of Story, s. 479, g. (i) Tatnall t. Hankey, 2 Mo. P. C. 342. (i) Sect. 473, a. [I) Doolittle T. Lewis, 7 Johnson, Ch. 45. MOVABLE SUCCESSIONS. 195 328. There is a universal agreement in referring to the law of the domicile at death, as opposed to that of the domicile when the will was made, all questions of its intrinsic validity : as of the proportion of his estate of which the testator may dispose, legitim, disherison of natural heirs by simple preterition, and so forth. (m) These points belong essen- tially to the law of the succession, which is not opened till the death : and they slide into those which belong to the next section. 4. Construction and Operation of Wills of Movables. 329. Two classes of cases fall under this head, which it is perhaps impossible in practice to distinguish by a very accurate line : those where the question is of interpreting the testator's meaning, and those where it is of the operation of law upon that meaning. If his meaning be plain, but opposed by the law of his domicile at death, there is np doubt but that that law must prevail, whether it declare his intention illegal, or indirectly frustrate it by a positive rule of construction, obliging the courts to take his words in a certain sense. Thus we have already seen that a testator's power to exclude a child from legitim de- pends on the law of his domicile,[n) and so also a condition in restraint of marriage will be valid or not according to the same law, irrespective of the situation of the property to the bequest of which it is attached. (o) And if the *testator have used words which by the law of his r:):q-i-i-i domicile are not suffered to carry a legacy to the representatives L J of the legatee, no attention will be paid to the most irrefragable proofs of his intention that the legacy should not lapse, (p) All this proceeds upon the plain principle. that, when the claims of creditors have been satisfied, the testator's domicile is the forum for the administration of the surplus as between the heirs or legatees ; and to what wills does the law of that forum apply if not to those which come before it in the course of its regular jurisdiction ? Whence foreign courts also must admit that law, if a will which would regularly be subject to it happens from any circumstances to come before them. Thus the grant of an English probate decided even for the English court of chancery merely who was executor, and no farther question as to the operation of the will of one domiciled in France, (g') And the court of session must in- terpret the will of a domiciled Englishman as it would be interpreted in England ;(r) so that even if the personalty is to be invested in Scotch land, the English law must decide whether the first taker under the set- tlement to be made will be entitled to the interest of the fund during the year after the testator's death. (s) (m) FcElix, no. 117 ; Savigny, v. 8, p. 312. And see the next paragraph. (n) Hog T. Lashley, 3 Hagg. Eccl. 415, n. ; 6 Bro. P. C. 577. See Art. 328, and Price T. Dewhurst, 8 Sim. 279 ; 4 My. & Or. 76. (o) Ommaney v. Bingham, 3 Hagg. Eccl. 414, n. \p) Anstruther v. Chalmer, 2 Sim. 1. (j) Thornton v. Curling, 8 Sim. 310. As to the grant of probate in this case, see above, Art. 325. (r) Trotter v. Trotter, 3 Wilg. & Sh. 407 ; 4 Bl. N. R. 502. (s) Macpherson t. Macpherson, 1 Macq. 243. See, as to the interpretation of foreign wills, Bernal v. Bernal, 3 My. & Cr. 559 ; C. P. C. 55. 196 WESTLAKE ON PRIVATE INTERNATIONAL LAW. 330. But tliis principle is not taxable with the conclusion which has sometimes been drawn from it, that all words of technicality, quantity, or other, used by the testator must be understood according to the law, measures, or language of his domicile. If indeed any absolute rule in r*^1 91 ^°''°® there requires that, it must be done ; but all that *is gene- L J rally necessary is that the system of interpretation prevailing in the courts of the domicile be applied, and if that be a rational system, and so far as it is unfettered by absolute rules fixing cer- tain interpretations regardless of circumstances, it will itself look to the circumstances of the testator or of the property for the explanation of many things, and may so be led to understand words with reference to foreign technicalities, measures, and languages. Thus an annuity charged on Irish land, by an English will, for a wife living in England, was held, upon the manifest intention, to be payable here in our cur- rency without charge for remittance.(«) And if a testator, having funds in his domicile and also abroad, bequeaths a legacy generally without separating the funds, it will be payable in the money of his domicile ;(«) but if he separates the property, and charges the legacy on the foreign assets, that will be a very strong argument that he intends its value to be taken in the foreign currency, (xj Thus also where a testator domi- ciled in Jamaica devised an estate there, on the question whether the stock on it passed also, the probable sense in which the particular words employed would have been used by a Jamaican was appealed to in the judgment, but no arbitrary rule of construction laid down.(?y) And when it is contended that a will puts the heir of foreign immovables to r*R1^l ^'^ election by an ineffectual attempt to devise them, the *ques- L J tion whether those immovables were meant to be devised by it must be answered as the courts of the testator's domicile would answer it.(,:;) The case in which this was decided supplies also another lesson, that however clear, in appearance, may be the meaning of a foreign will, no tribunal can with safety or propriety act on it without obtaining the opinion of lawyers of the domicile. (a) To act otherwise would be to assume a knowledge of foreign law, which might prove treacherous where little suspected, as with regard to the precise degree of clearness with which in any country an ineffectual intention to devise must be manifested in order to put an heir to his election. 331. But although, when the data are before the foreign judges, they must attribute to the testator the same meaning which, upon them, he would be held to express in his domicile, yet, as they are bound only by (i) Wallis T. Bright-well, 2 P. W. 88. (u) Saunders v. Drake, 2 Atk. 465 : Pierson v. Garnet, 2 Bro. Ch. 38 ; Malcolm v. Martin, 3 Bro. Ch. 50. (z) Dicta in Saunders v. Drake, 2 Atk. 466, and Pierson v. Garnet, 2 Bro. Ch. 4V. Whatever currency be held to hare been intended, if the legacy be paid out of a fund in court in England, the course of chancery is to pay it at the sterling value, without reference to the exchange : Cockerell t. Barber, 16 Ves. 461 ; Camp- bell v. Graham, 1 Ru. & My. 453, 461. This is as much as to say that, as .igainst the residuary legatee, no particular place of payment was intended by the testator. (y) Stewart v. Garnett, 3 Sim. 398. (z) Trotter v. Trotter, 3 Wils. & Sh. 407 ; 4 Bl. N. R. 502. (a) But see Bernal v. Bernal, 3 My. & Cr. 559; C. P. C. 55. MOVABLE SUCCESSIONS. 197 their own rules of evidence, this may influence the data which come before them, and so, indirectly, their conclusion. Thus a revoked will cannot be proved, and therefore no English court can look at it, but a Scotch court may, though the testator_was English, to get the benefit of the light it may throw on a later will. (6) '< Had Mr. Yates died intes- tate," said Lord Brougham, " the English statute of distributions, and not the Scotch law of succession in movables, would have regulated the whole course of the administration. His written declarations must, therefore, be taken with respect to the English law. I think it follows from hence, that those declarations of intention touching that property must be construed as we should construe them here by our principles of legal interpretation The Scotch court must inquire of the foreign law as a *matter of fact, and examine such evidence as r-^oiAi will show how in England such instruments would be dealt with L J as to construction. I give this as my opinion upon principle, for I am not aware of the question ever having received judicial determination in either country. But here I think the importing the foreign code (sometimes incorrectly called the comifas\ must stop : what evidence the courts of another country would receive and what reject, is a question into which I cannot at all see the necessity of the courts of any one country entering It by no means follows that where a sentence of a foreign court is offered in evidence, the probate, for example, of an English will, it should not be admitted, nor do I think it should be denied its natural and legitimate force. But that it must, like all other instruments, be received upon such proof as is required by the rules of evidence followed by the court before which it is tendered, I hold it to be quite clear : it will follow, that though a probate striking out part of a will would be received, and the court of session would have no right to notice the part struck out — for this would be reversing or at least dis- regarding the very sentence of the court of probate — yet the non-pro- bate of a person's will would not prevent the court from receiving and regarding that will, if its own rules of evidence did not shut it out." 332. It remains to observe that a stringent prohibitive law, existing in their situation, will exclude the operation of the law of the domicile even on the chattels comprised in a succession. This is the case with a direction to emancipate slaves, invalid by the former though good by the latter jurisprudence. fc) (b) Yates v. Thomson, 3 CI. & P. 544. The following extracts are from pages 585-591. (c) Mahomer v. Hooe, 9 Smedes & Marshall, 247. 198 WESTLAKE ON PRIVATE INTERNATIONAL LAW. [*315] *CHAPTEK XL JIARRIAGE. 1. Constitntion of the Marriage, . 315 I 3. Peeuniary Effects of the Mar- 2, Divorce, .... 330 [ riage, .... 352 1. Constitution of the Marriage. S33. In parsuance of my plan of considering first all the dealings of men as transacted between persons confessedly capable with regard to them, and afterwards introducing those limitations to the general doc- trines which arise from incapacity, it becomes the time, after having discussed the subjects of obligation and property, to enter on that of marriage. But it is necessary on the threshold of this topic to point out its relation to the question of incapacity, as that is understood in private international law : for there are three objections to the constitu- tion of a marriage which turn on incapacity in some sense or other, and clear ideas in respect to them are indispensable from the beginning. These are, that the parties have not attained the age of consent : that they have attained it, but not that farther age at which the authoriza- tion of parents or guardians is necessary to the validity of the consent : and that the parties are within the prohibited degrees of affinity, or are affected by religious vows. 334. The first of these is a question of capacity in the strictest sense. r*o-|p-i *Marriage is a status, but it is constituted by a consensual con- L J tract, and to the force of the consent, na}', to its existence, a certain ripeness of judgment is necessary, not by any positive law, but by the nature of consent itself, which universal jurisprudence merely re- cognizes. All that law can do is to lay down the rules for determining when such ripeness of judgment shall be presumed; and if, on this, the code of one nation accepts the provisions of another as to its members, it does so merely by way of adopting the best evidence it can procure as to the existence, in the particular case, of an incapacity the general assertion of which it does not borrow from that foreign code. 335. The necessity of an authorization by parents or guardians is a protection which positive law throws round a will presumed to be weak, and is therefore in principle a matter of policy and institution, like the relief granted to expectant heirs against catching bargains. It can therefore, from its own nature claim no recognition at the hands of a foreign law. But since the age of consent is in most, or all, civilized nations placed so early that such a protection is held to be necessary for some period after it, a weakness of judgment remaining after the age of consent may, in the mutual dealings of members of those na- tions, be accepted for a fact as general and primary as those of nature : and in mutually receiving the evidence of positive law with regard to its existence, and the remedies supplied by positive law for it, they will be acting in a manner analogous to the former case. MAKRIAOE. 199 386. The third point arises from vows, and the prohibited degrees of affinity. It is at once apparent that there is here no natural incapacity, such as we have been considering hitherto. The parties are both physically and mentally capable of a marriage in fact. Yet if an act or contract is illegal, so that the external semblance of it is, *for ^^n-i^,-! any juristic consequences, a mere nullity, except in so far as it L "^ J may possibly subject the parties to penalties for the attempt, then, in one sense of the words, a personal incapacity is created as to such act or contract. It is precisely this personal incapacity which is created by a law prohibiting a time-bargain as gambling. No legal obligation arises by such a bargain, and therefore the parties, in spite of the concurrence of their wills, are incapable to contract a legal obligation that way. The words in which such laws are couched are of course very various. It may be that no action shall lie on such a bargain j or " that all mar- riages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity shall be absolutely null and void ;"(«) or " that no descendant of the body of his late Majesty King George II. (other than, &c.) shall be capable of contracting matrimony without the previous consent of"(6) the reigning sovereign. Or again, there may be no words at all, as when by the common law no obligation larises on a turpis causa. But to suppose that any difference is made, to the nature of the incapacity produced, by the presence or absence of any particular words, or of any words, would be to return to the point from which Bartolus set out : bona decedentis veniant in primogenitum is a real statute, primogenitus succedat a personal one.(c) Hence the third objection, being of the same kind with the illegality of pecuniary con- tracts, is properly within the scope of the present chapter, and cannot be deferred : the first is not so, but from the early age which in most countries, and certainly in England, is regarded as sufficient for consent, it is of small practical importance : while the second is of a mixed cha- racter, ranking with the third in principle, *though with the i-^qio-i first in its practical aspect. On the whole then, there is no suffi- L J cicnt reason for not taking here the whole subject of the constitution of marriage together. 337. But before entering on the international questions, one more jemark must be made on marriage, considered simply from the municipal point of view. It is established by a contract, in which not only is no place of execution stipulated, but none even enters into the expectations of the parties in any such manner as to become an element of their con- sent. On the contrary, it is, by its very nature, a contract the parties to which intend that the status produced by it shall arise immediately, as in fact it does, without reference to their possibly being from home at the time : and they farther intend that the continuance of that status, as resulting from the contract, shall be independent of any subsequent change in their domicile, and of all place whatever, so that if they at any time seek to dissolve it, and have recourse to some territorial law for that pur- (a) 5 & 6 Wm. 4, c. 54, s. 2. (b) 12 Geo. 3, o. 11, s. 1. (c) See Art. 142. 200 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. pose, tlie operation of that law shall in no way flow from their contract : and moreover, that no disappointment which either side may experience, in those pecuniary consequences of the marriage which must depend on place, shall in any degree affect the existence of the status itself. 338. Now the most obvious international view of marriage, considering the ubiquity and immediate inception of the status produced by it, is to assimilate it to those contracts causing obligations of which an imme- diate performance can be demanded anywhere : and for these there was no doubt, wherever the forum contractus, with the principle of the lex loci contractus, was received, that both the form and the legality, the extrinsic and intrinsic validity, depended on the lex loci celebrationis. This is very clearly asserted by the Jesuit Sanchez, who is among the most ancient authorities on the subject, and one to whose opinions a very r*qicn ^^o^ respect is paid in the Koman church. *He lays down, in L J passages often quoted, the general rule that the solemnities of contracts are to be regulated by the lex loci contractus .'(c?) he applies it not only to marriage generally, but also expressly to those who visit a foreign country in fraudem decreti Tridentini, ut ihi possent lihere abs- que jiarocho et testibus matrimonio copulari, using the two reasons that est enim fraus licita cum contrahentes utantur jure suo, and that bona vel mala intentio conferre potest ad committendum velnon conimittendiim peccatum, non tamen ad annullandum actum, cum intentio maneat in mente, nee effectum, injluat in opus externum, :M and he farther expressly extends the doctrine to the diriment impediments, in a passage which I will cite at large, as it has not been noticed in many of the subsequent controversies on the point. Tandem dediicitur, si fidelis contraliat matrimonium apud infideles apud quos domicilium habet, cum, impedi- menfo aliquo dirimenti ab ecclesia inducto, matrimonium fore nullum, quia leges ecclesiastical ubique terrarum fideles adstringunt. At secus erit dicendum si injidelis contraliat extra patriam in loco principi Christiano subdito aut alii principi infideli, cum impedimenta dirimenti statute a suo solo principe, quia non adstringitur legihus suae patriae extra iUam, (ut late probavi lib. 3, disp. 18, n. 18.) Dixi a suo solo principe, quia si efiam esset impedimentum dirimens sancitum a principe loci in quo contrahit, non valeret, quia peregrini adstringuntur legibu^ communibus suce patrice et loci in quo reperiuntur, (ut probavi ea disp. 18, n. 3.) Si autem esset ab ecclesia inductum illud impedimentum in loco fidelium ubi injidelis contrahit, et in suo oppido a principe infi- deli, valeret matrimonium, quia lex ilia ecclesiastica non est generalis in r*S20"1 ^^^^ 'W*'^") ^^^ solos fideles adst7-ingit.(f\ *As there is now no L J ecclesiastical law on marriage which is recognized as having any force, except so far as the civil power may have adopted it, it is only what Sanchez says of the marriage of infideles that can be still applied by us. 339. From the Voets and Hertius I* do not find any statement of opi- nion on these points farther than as to the mere solemnities, but on those they all follow lines different from each other and from Sanchez. Paul (d) De Matrimonio, lib. 3, disp. 18, passim. (e) lb. lib. 3, disp. 18, n. 29. (/) lb , lib. 1, disp. 3, n. 11. MARRIAGE. 201 Voet takes the lex loci contractus for the general rule, but makes an exception (in which, as to the solemnities, he is perhaps singular) — nisi quia, quo in loco domicilii evitaret molestam aliquam vel sumptuosam solemnitatem, adeoque in fraudem statuti sui, nulla necessitate cogentc alio proficiscitur, et mox ad domicilium, gesto alihi negotio, reverta- tur.{ci) John Voet decides a particular case on principles which would always require the solemnities of the domicile, and which leave it uncer- tain whether he would not have also demanded any farther ones imposed by the lex loci contractus.Ui) And Hertius declares for the latter, as the locus actus, on his general rule with regard to the lex qum actui formam dat, but admits that between foreigners who are compatriots the solemnities of their domicile will be suflScient.(t) 340. Huber on the other hand says nothing expressly about the solem- nities: but he subjects the prohibited degrees to the condition si licitum est eo loco uhi contractum et celehratum est, with the two only exceptions of si incestum Juris gentium in secundo gradu contingeret alicuhi esse permissum, and of two persons who betake themselves (se conferunt) to a foreign country and return after marrying there, quia sic Jus nostrum pessimis exemjalis eluderetur.fk) *341. The ancient jurisprudence of France on this subject, r^f-ooi-i as stated by Bouhier, is just so far modified from the doctrines L J of Sanchez, as might be expected in a country where, in consequence of the deviation from the common ground of the forum and lex contractus in reference to obligations, the analogy did not exist on which the com- mon international theory of marriage was founded. It referred the solemnities always to the lex loci actus, but, in the case of two French persons marrying abroad, whether they went abroad for that purpose or not, subjected them to the necessity of all those consents which they would have required in France. If however a marriage was celebrated abroad between a French subject and a foreigner, Bouhier cites a uni- form current of decisions to the effect that even the necessary consents were then limited to those required by the lex loci contractus : and some of these decisions are particiilarly strong, being in cases where the hus- band was the party of minor age, and French by origin and domicile. (?) But these doctrines have not been maintained in the modern law of France. The 170th article of the Code Napoleon runs thus : — le ma- riage contracts en pays Stranger entre Frangais, et entre Frangais et Strangers, sera valahle, s'il a StS cSlShrS dans les formes usitSes dans le pai/s, pourvu qu'il ait StS prScSdS des publications prescrites par V art. 63, au titre des actes de I' Stat civil, et que le Frangais n' ait point con- trevenu aux dispositions contenues au ehapitre prScSdent. The chapter referred to is that which regulates the validity as to age, consent, and degrees of affinity : and as to these points, the French law, permit- ting to those of other nations the same extent which it claims for itself, will regulate the marriages of foreigners in France by the laws of (g) De Statutis, ? 9, c. 2. (A) Comm. ad Pand., lib. 23, tit. 2, n. 4. (i) De Coll. Leg., s. 4, ? 10, non valet (6). {k) De Coufl. Leg., a. 8. (J) Observations sur la Ooutume du Duche de Bourgogne, oh. 28, n. 59-66. 202 WBSTLAKE ON PRIVATE INTERNATIONAL LAW. r*q991 ^^^^^ nationality or domicile.(?») *And as the omission of the L -I publications ordered by Art. 63, is not an absolute cause of nullity when the marriage is contracted in France, so it has been de- cided that it will only nullify the marriage of a Frenchman contracted abroad, when it took place dans un hut de clandesfinitS et afin de se soustraire aux exigences de la hi Frangaise.(n) 342. The opinion of Savigny is so far similar to that which now rules in France, as that he refers every impediment to marriage to the law of the domicile, in consequence of the purely personal character of the whole subject. But he takes this exclusively of the husband's domicile, the law of which, as the true seat of the marriage, must prevail over that of the previous domicile of the wife. He admits the sufficiency of a religious ceremony, which the inhabitants of a country where that is required perform in a country where a civil one is generally needed : and he considers that if in such case the parties should have used the civil rite of the locus actus, the stringent character of a law demanding a re- ligious ceremony would, without any reference to the question of their intention to evade it, oblige them to undergo such a form on their re- turn home, which however, when completed, would operate by relation to the previous civil ceremony, (o) 343. It is impossible not to see in this historical sketch that the in- ternational theory of marriage, having been originally framed at the time when personal and mixed statutes were not well distinguished, has been since modified through the influence of that clearer demarcation which towards the end of the sixteenth century was made between those two classes :(p) also that in the passage from the earlier to the later theory, the lex domicilii was first timidly introduced through the in i-^o9q-i fraudem legis *doctrine, before it ventured to assert itself in L ■" -I its own right. In that intermediate form the doctrine appears to be entirely reprehensible. Not to mention that a law which cannot speak in its own name can have no claim which the parties can de- fraud,(g') to make the validity of a marriage depend on so uncertain an element as the opinion which a court may form as to the motive of a journey appears to be, in its practical bearings, one of the most extrava- gant proceedings which it ever entered into the mind of a jurist to re- commend. Indeed it is not without grave hesitation that the certainty, which was the great advantage of the old rule of the lex loci contractus, can, on a matter where uncertainty is more immoral and of more dan- gerous example than marriage with a deceased's wife's sister, be ex- changed for even that degree of doubt which always attends the deter- mination of domicile where there is the suggestion of a removal. There ■"oo^ (n) ' Merlin, Repertoire, Loi, ^ 6, Art. 6. Giovanetti t. Orsini, Dalloz, 1856, premiere partie, p. 9. I V. 8, pp. 326, 357, 359. (p) See above, Art. 149. (g) The argument can derive no benefit from the illegality asserted in Art. 199 of contracts, otherwise legal where made, but subsidiary to the breach of a foreign law. The analogy does not hold, because of the total non constat th;it the parties ■will ever return to the domicile, and the total independence of their contract on the question whether they do return there. It is more like the knowledge of an illegal purpose, which iu Pellecat v. Angell and M'lntrre v. Parks did not vitiate the contract. MARRIAGE. 203 is, besides, the regret which must be felt that the judgments in Brook v. Brook have left it uncertain whether it is on domicile or allegiance that the binding force of the British marriage laws is in future to rest : but for domicile there speak so many considerations — the purpose of such laws in protecting the morals of the inhabitants, the general concurrence of foreign opinion, and the uncertainty which would otherwise exist ■whether the law of England, Ireland or Scotland should be applied to a subject domiciled abroad — that perhaps no great practical difficulty will hence arise. The other difficulty might be removed or lessened by appropriate ^enactment with reference to the conditions of domi- p^qo/iT cile for this particular application. L J 344. The status of marriage is created on the contract of the parties, immediately, and therefore by the lex loci contractus, which then alone has power over them. Into whatever jurisdiction they afterwards come, the status being recognized as identical throughout Christendom, it will be accepted, unless some strong motive be shown for looking behind it to the contract on which it was created. Hence the form is justly re- ferable to the lex loci contractus, and so the English cases have de- cided :(r) while, if the marriage be void by that law, whether for form or any other reason, there is an end of the question. (s) To this how- ever an exception must be made, when from any cause it is impossible to comply with the local solemnities. Thus a marriage between pro- testants celebrated at Eome by a protestant clergyman was admitted by Lord Eldon, on its being sworn that two protestants could not there be married by the lex loci, as no Roman priest -would be allowed to marry them.(<) Marriages in ambassadors' chapels are scarcely exceptions, ^partly from the fiction of extraterritorialty, and partly because |-^„„_-. they are allowed by all laws, and therefore by that of the ■- J country in which the chapel is really situate : and as factories in heathen countries are beyond the pale in which laws are allowed to operate terri- torially, marriages there are properly regulated on the footing of per- sonal laws. Both classes have received a statutory recognition here, and a statutory sanction, binding on British tribunals, has been given to marriages, at least one of the parties to which is a British subject, in British consulates and factories in civilized countries, and in the lines of a British army abroad, solemnized in such manner as the acts direct.^M) (r) Foreign marriage in local form good here ; Herbert v. Herbert, 3 Phil. Eccl. 58; 2 Hagg. Cons. 269 ; Smith t. Maxwell, 1 Ry. & Mo. N. P. 180. Foreign mar- riage not in local form bad here : Lacon v. Higgins, 3 Star. 1Y8; 1 Dow. & Ry. N. P. C. 38 : even though the parties were British subjects, and followed the rites of the church of England : Butler t. Freeman, Ambl. 303 ; Kent v. Burgess, 11 Sim. 361. Protestants having abjured, for the purpose of being married at Rome by Roman Catholic rites, the question whether, and in what sense, their abjura- tion was required to be sincere, in order to the validity of the marriage, was de- cided by the law of Rome : Swift v. Kelly, 3 Knapp, 257. («) Scrimshire v. Scrimshire, 2 Hagg. Cons. 395 ; Middleton v. Janverin, lb. p. 437. (t) Cruise on Dignities, 276. The Roman law was however incorrectly deposed, for the marriage at Rome of persons not of the Romish religion is governed by the old common law of Europe, as it stood before the Council of Trent: Sussex Peerage, 11 CI. & P. 152. (a) See 4 Geo. 4, c. 91 ; 12 & 13 Vict. c. 68 ; and above, Art. 157. If a mar-' 204 ■WBSTLAKB ON PRIVATE INTERNATIONAL LAW. 345. I have already intimated my opinion that the lex loci contractus may reasonably adopt any consent of parents or guardians, required for the marriage of either party in his or her domicile, as the condition without which it will not give binding force to the forms of their contract. In doing so, it would simply follow a comity so widely spread that the lan- guage of laws, when not positively excluding it, may be fairly taken to presuppose it. And although in the domicile it may be possible to evade the necessity of any consent, through a marriage by banns which may not come to the knowledge of the parent or guardian, yet the distinction between this and an absolute necessity seems too thin to be taken account of. It is certain however that the British courts have not hitherto adopted this view, but have persevered in maintaining that no other con- sents than those which the lex loci contractus demands for the marriage r*^9fiT °^ ^^'^ '^^'^ subjects are necessary for the marriage *of foreigners L ^ -J celebrated within its jurisdiction. The point arose on the Eng- lish Marriage Act, 26 Geo. 2, c. 33, when English minors married in Scotland, and was by no means decided in advance, as has been some- times imagined, by the proviso " that nothing in that act should extend to Scotland," for the question affects the interpretation of this proviso. On the old view, as represented by Sanchez, such a proviso would except marriages celebrated in Scotland : on the modern view, it would except the marriages, wherever celebrated, of domiciled Scotchmen. The former was held to be its meaning, which is nothing else than a direct decision that, first, the Scotch lex loci contractus does not adopt the necessary consents of the domicile, and, secondly, that the English lex domicilii submits to such non-adoption of them. (a;) Considering however the intimate connection between these points and that on illegality by con- sanguinity, it may well be doubted whether such a decision will be made, since Brook v. Brook, in a new case : Lord Brougham's act settles that of Scotland. 346. Next, a statute which, like 5 & 6 Will. 4, c. 54, declares mar- riages between persons within certain degrees invalid, without specifyino- between whom or where contracted, appears prima facie to do two things. First, to express the refusal of the legislature to create the status of mar- riage, upon a contract entered into here between any two persons what- ever who are within those degrees. Secondly, to direct the judges who are subject to it not to recognize the status of husband and wife, which any two persons whatever who are within the same degrees may import with them from abroad. If the generality of either *of these p:^q.^— , interpretations is to be restrained, it cannot be on any considera- L "'J tion of the limits of the legislature's authority, for authority to do all this it unquestionably has, but must be on the presumption that the legislature riage under these acts should be invalid by the lex loci contractus, its validity here will carry with it, for our courts, and for such property as may be within their reach, the validity of a collateral marriage contract: Este v. Smyth, 18 Beav. 112. [x) Compton V. Bearcroft, 2 Hagg. Cons. 444, note; Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, &c. In Roach v. Garvan, 1 Ves. sen. 157, it does not appear that there was any conflict of laws. Harford v. Morris, 2 Hagg. Cons. 423, was ulti- mately decided on the ground of force and custody : see p. 436. As to Ruding v. Smith, 2 Hagg. Cons. 371, see above, Art. 157. MARRIAGE. 205 intended to conform to some widely acknowledged rule of international jurisprudence. Now I know of no such rule which would restrain the former interpretation, and on the contrary it seems to be demanded by the ethics on which the act proceeds. If such marriages be wrong in the sight of English law, it cannot be right that English law should make them, however it may tolerate them : and I therefore submit that persons whose affinity is no bar in their domicile cannot, nevertheless, marry here. But the latter interpretation would lead to the consequence of the same persons being married by one law and unmarried by another : nay, of our law enforcing, as a good marriage contracted here, that which would be bigamy by the law of the parties' home. This can never have been intended, and while it can only be obviated by an international agree- ment as to the cases in which such invalidating statutes shall not apply, so also the only terms in which such an agreement is possible are that marriages contracted in the husband's domicile, and good by the law of that place, shall be thenceforward held good everywhere. Such an understanding would meet every purpose of the enactment, for the mar- riage of the woman is indifferent to the morals of the people whom she quits : nor can any inconvenience be apprehended from recognizing the status which two new inhabitants bring with them from their old domi- cile, at all equal to what would result from divorcing a married couple against their will. I should therefore submit that from those bars which depend on what is called incapacity, whether absolute, as from Romish orders, or relative, as from degrees of affinity, the parties must be free both by the law of the place where the marriage is *celebrated, r:):qoo-i and by that of the husband's domicile : that if they are so free, L J their marriage will be good, always and everywhere. In Brook v. Brook it has been decided that " English subjects" within the degrees prohi- bited here cannot validly marry abroad. (y) 347. " We regard christian marriage," said Lord Brougham, " as wholly a different thing, a different status, from Turkish or other mar- riages among infidel nations, because we clearly never should recognize the plurality of wives, and consequent validity of second marriages standing the first, which second marriages the laws of those countries authorize and validate. This cannot be put upon any rational ground, except our holding the infidel marriage to be something different from the christian, and our also holding the christian marriage to be the same everywhere."(8) The principle, fairly carried out, ought to prevent our enforcing here any conjugal rights resulting even from a first Turkish marriage. " If," said Lord Brougham, in a passage immediately -pre- ceding that last quoted, "there go two things under one and the same name in different countries, if that which is called marriage is of a dif- (y) 3 Sm. & G. 481, 523, 531. Story and Kent supported the lex loci contractus in the most absolute manner short of incest juris gentium, which they place with Huber at the second degree. Whether they also held with Huber the infraudem legis domicilii exception, it does not appear. See Story, ss. 114, 116, a. (z) Warrender v. Warrender, 9 Bl. N. R. 112 ; 2 CI. & P. 532. A curious at- tempt was made, and repelled, in Herbert v. Herbert, (3 Phill. Eccl. 58, 65 ; 2 Hagg. Cong. 269,) to make the conjugal rights depend on the lei loci contractus of a valid marriage. 206 'WESTLAKB ON PRIVATE INTERNATIONAL LAW. fereDt nature in each, there may be some room for holding that we are to consider the thing to which the parties have bound themselves according to its legal acceptation in the country where the obligation was con- tracted." Certainly we must not, from a mere coincidence of name be- r*q'>Qn ^^^^^ different things, enforce an obligation *never really ac- L ^ J cepted : and therefore, since we cannot carry out a Turkish first marriage on Turkish principles, we ought not to fix the parties with an English marriage in its stead. , 348. It remains to notice the case of priiJiYe^'ia. Although a law which professes to make any persons or class of persons incapable as to any act or contract is in fact a mere declaration that such act or contract, when attempted by them, is illegal and null, and is not therefore, on general international principles, necessarily to be respected by foreign sovereigns when the act or contract is attempted in their dominions, yet if such an artificial incapacity is contained in the jurisprudence of the both of any two countries, they may reciprocally recognize it as though it were a natural one. Of this kind is the incapacity of nobles to engage in trade, and consequently to bind themselves by mercantile contracts, which existed in many European states, and may possibly exist still in some. Such an inability of each other's subjects would be reciprocally recognized in those countries, but would be disregarded elsewhere,(a) as we disre- gard the native inability of a foreign slave to exercise any of the rights of freedom in these dominions. Another example is the inability which by many foreign laws attaches to persons in general to become parties to a bill of exchange, the peculiar obligations implied by such an instru- ment being regarded as so perilous that they are only allowed to be incurred by those classes, variously defined in different countries, for whose trading pursuits they are held to be necessary. Between such countries, the capacity to become a party to a bill of exchange is decided by the domicile :(i) but I know of no authority for supposing that the r*R301 "^°'"'''''® * would be referred to by our courts for such a purpose, L -I if a foreigner drew, accepted or indorsed a bill of exchange within their jurisdiction. These are not privilegia, but they pave the way for considering them, since the English Royal Marriage Act is but an extreme case dependent on the same principles. It professes to make certain persons incapable of contracting matrimony without the consent of the sovereign, but what it really does is what it can do, namely, toprevent such persons from contracting matrimony within the British dominions without such consent, and to prevent British judges from acknowledging any matrimony which the same persons may similarly contract out of the British dominions. This however is amply sufiicient for its purpose, which will be equally effected whether foreign judges should or should not, as to marriages contracted abroad, recognize the incapacity which the statute creates. (c) 2. Divorce. 349. The dissolution of the marriage tie gives rise to several great (a) Story, s. 104. (6) Savigny, v. 8, p. 263. (c) The Sussex Peerage case is reported in 11 01. & F. 85. Some curious cases MARRIAGE. 207 international questions, into which the consideration of the laws appli- cable to the different cases enters abundantly, but which take the form rather of disputes on jurisdiction, because in no civilized country is *divorce permitted to be made by the independent act of the par- f^^oo-i -i ties, without the interposition of judicial authority. The first of L -I these questions in their natural order is whether any country should ever recognize a divorce granted for a cause insufficient by its own laws ; a point which has been mooted on the continent of Europe, but not, so far as I am aware, in the British Isles or in America. The negative answer would not entirely preclude an international system of jurisdiction in divorce, but reduce its applicability to the cases arising between those countries of which the laws on divorce agreed : thus it would remain an inquiry of interest on what circumstances the jurisdiction should be grounded, that the divorce pronounced might be of authority in countries where its cause was recognized, though no circumstances could give it authority in any other. The next question, which has been chiefly mooted in England, is whether the causes of dissolution are not neces- sarily prescribed by the law of the marriage, whether that be taken to be the law of the place of celebration or that of the matrimonial domicile, (the husband's at the time of the marriage,) so that no forum can have jurisdiction to divorce for a cause insufficient by that law, however com- petent its authority over the parties may be on other grounds. This point arises within whatever limits are left to the subject by the previous ques- tion, from which it differs in that the former supposes an objection to the divorce from the public policy and ethics of the nation called on to recog- nize it, while this supposes a private right to indissolubility acquired by the parties through their contract. I am not aware that the converse proposal, to extend the causes of divorce beyond the lex fori to all those permitted by the law of the marriage, has ever been made. Thirdly, we shall have to consider the jurisdiction by and the causes for which divorce may be decreed, with reference to the *place of commission of -^„„^-. the offence on which the application is based, or to the nationality L "'J or domicile of the parties at the time of the suit : and in this discussion again the argument for the law of the existing domicile or nationality will proceed on public grounds alone. But these public grounds may be differently conceived. They may be based on the assumption that a di- vorce judicially granted ought to be universally recognized, as is generally done by the continental jurists, and then the aim will be to establish such rules as may be equitable between nation and nation : or the principle may be, as it seems to be in the Scotch and American courts, that divorce, being instituted for the sake of public morals, ought to be decreed with may be put. Suppose an escaped slave should marry here, but without having acquired an English domicile, and, after returning to his own country, where we will suppose slaves are incapable of marriage, should there be liberated, and marry another woman, living bis iirst wife. I apprehend we should hold the first wife to be the real one here. If before the first marriage he had acquired an English domicile, I suppose the case would admit of no doubt on this side of the Atlantic, although the country from which he had escaped might deny his power of changing his domicile for an English one, or might set up nationality against domicile. 208 WESTLAKE ON PKIVATE INTERNATIOIf AL LAW. a view to the interests of the forum in that respect ; and then the same considerations on which the rules themselves would otherwise be esta- blished, will apply to the inquiry what validity can be allowed abroad to divorces granted under such rules. The whole of the third question is subject to the first, on the extent to which an international recognition of divorce is possible. 350. First question of Art. 349. — An Englishwoman was divorced by act of parliament in 1822 : in 1824 the mayor of the third arrondissement of Paris refused to marry her to a Frenchman ; and in the same year the royal court of appeal at Paris, confirming the judgment of the court below, held that the mayor was justified in his refusal, because divorce had been abolished in France by the law of the 8th of May, 1816. The pith of the decision is contained in the following passage of the judgment of the inferior court; — attendu que la loi civile en France dispose qu'on ne peut contracter un nouveau mariage avant la dissolution du premier et que la loi frangaise ne reconnait plus le divorce comme un moyen de dis- solution de mariage :" and its principle admits of a natural extension to the case of a foreign divorce granted for a cause insufficient by the law r^QooT *of the country called on to recognize it, but which law does not L -1 altogether prohibit divorce. Blerlin has carefully discussed this decision, which he concludes would be correct if the law of France re- garded the marriage of a divorced person as adulterous. But that such is not the mind of the French law he proves from the fact that the law of 1816 permitted the marriage of persons who had been divorced before its date, though their former consorts might still live : and hence he infers that a jurisprudence which merely refuses the means of divorce, without condemning the marriage of a divorced person, ought to have been taken to accept the status of a foreigner who has been lawfully di- vorced in his own country. (rf) This leaves it uncertain what Merlin would have held if divorce had never been established in France, in which case he could not have deduced the mind of the French law from the circumstances attending its abolition. That divorce is morally lawful, but that it is inexpedient to provide regular means for obtaining it, is an opinion shared by respectable authority, but which there seems no more reason, a priori, for attributing to the law than the opinion that divorce is morally unlawful : and the best way to escape from such slippery argu- ments is to accept all men with that condition of married or unmarried with which courts of competent jurisdiction have impressed them. The French courts, on the occasion referred to, said that marriage is juris gentium, but that divorce is not. But it is not the mere contract of marriage which is Juris gentium : it is the status to which the contract leads, and in which it is immediately merged, that pre-eminently merits that title. And the consequence is that, heiug juris geiitium, we must take the status of married or unmarried as we find it, as foreign compe- r*3341 *^°* authority has |eft it : nor can any thing *be more inconsis- L -J tent with allowing that universal character to marriage than to insist on taking a certain past fact, as the solemnization, and deducing all its (d) Questions de Droit, Divorce, ^ XIII, MAKEIA6E. 209 effects by our own law without reference to circumstances. These prin- ciples have been recognized in England, except in the case, hereafter to be noticed, of marriages contracted here.(e) 351. Second question of Art. 349. — Next, where, as in contract or the transfer of property, the rights of parties originate in their own deal- ings, only interpreted and effectuated by the law, the part of the law is prior to that of justice, which has merely to declare and enforce the right already existing by the operation of law on the facts. Hence, as we have often seen, though the law which was applicable to the facts when they occurred was a different one from that of the forum, yet the right it then created was already in existence before the cause reached the forum, and must be declared and enforced accordingly. But where, , as in divorce, it is the justice itself which first creates the right, there can be no question of any claim arising out of a law which was only applicable before the parties stood in justice : and this at once shows why it has never been contended that either the lex loci contractus of the marriage, or any other foreign law, can give a claim to divorce for causes which do not sustain it by the lex fori ; why, in such cases, there is in the forum a total defect of jurisdiction to divorce. In fact, a jurisdiction which does not consider that the parties are divorced, but decree that they shall he divorced, gives not a private but a public re- medy, and can never therefore be put in motion but on the grounds which the public law of the forum contemplates : nor, if those grounds are present in the case, ought *th3 circumstance that the par- -^^„^-. ties were married under another law to prevent the lex fori from L J pronouncing a divorce which it desires from public motives. In this spirit it has been well said by the supreme court of Massachusetts, that " regulations on the subject of marriage and divorce are rather parts of the criminal than of the civil code, and apply not so much to the con- tract between the individuals as to the personal relation resulting from it, and to the relative duties of the parties, to their standing and conduct in the sopiety of which they are members ; and these are regulated with a principal view to the public order and economy, the promotion of good morals, and the happiness of the community. A divorce for example in a case of public scandal and reproach is not a vindication of the con- tract of marriage, or a remedy to enforce it, but a species of punishment which the public have placed in the hands of the injured party, to inflict under the sanction and with the aid of the competent tribunal ; operating as a redress of the injury when, the contract having been violated, the relation of the parties and their continuance in the marriage state have become intolerable or vexatious to them, and of evil example to others. The lex loci therefore by which the conduct of married persons is to be regulated, and their relative duties are to be determined, and by which the relation itself is to be in certain cases annulled, must be always re- ferred, not to the place where the contract was entered into, but where (e) Ryan v. Ryan, 2 Phil. Eccl. 332 ; Connelly T. Connelly, V Moore, P. C. 438. In the latter case, the separation was by vows of chastity, which must be 'consid- ered on precisely the same ground as divorce, being in fact divorce by consent. February, 1859. — 14 210 WESTLAKE ON PKIVATE INTERNATIONAL LAW. it subsists for the time, where the parties have had their domicile and have been protected in the rights resulting from the marriage contract, and especially where the parties are or have been amenable for any vio- lation of the duties incumbent upon them in that relation. "(/) r*^^fil ^^^' ^ •2^°°°*' refrain from adding here the clear ^statement L J of the same reasoning which was given by Merlin on a question precisely analogous, that in which the conflict is not between the laws of two countries, but between those of the same country at diflFerent periods. It brings out pointedly the distinction to which I have already alluded between a proceeding in justice which declares rights already existing through a contract, and one which creates in the public interest rights which have no existence prior to the proceeding itself. " Peu- ton," says he, " en vertu d'une loi nouvelle qui introduit le divorce, dis- soudre par cette voie un mariage contracts sous une loi qui le prohibait ? Et r^ciproquement, un mariage contracts sous une loi qui autorisait le divorce, peut-il §tre dissous par cette voie sous une loi qui le prohibe ? L'af&rmative ne serait pas douteuse si le divorce 6tait, comme I'etat d'^poux, I'efFet imm^diat et la simple consequence du mariage. Dans cette hypoth^se, le divorce ne pourrait, comme I'^tat d'^poux, d^pendre que de la loi du temps oii le mariage a 6t6 cSl^bre, parceque, dans le premier cas, l'6poux qui s'opposerait au divorce serait fond6 h. dire qu'en se mariant il a entendu contracter une union indissoluble; que, dans le second cas, I'^poux, qui demanderait le divorce, serait fondS a dire qu'en se mariant il n'a entendu contracter qu'ume union qu'il lui serait unjour ou I'autre libre de rompre ; et que, dans I'un comme dans I'autre, ce serait Ji la loi du temps du contrat qu'il faudrait s'en rapporter sur la force du lien que les parties contraotantes auraient form^. Mais ce n'est ni par consequence ni par interpretation de I'intention dans laquelle a ete contracte le mariage, que le divorce est permis ou prohibe. En le permettant comme en le prohibant, le legislateur ni s'arrete ni ne doit s'arrgter h, ce que les epoux ont ou sont censes avoir voulu au moment oii ils se sont unis; il ne s'arrgte et il ne doit s'arreter qu'aux considera- tions d'ordre public qui lui paraissent en commander imperieusement la P^ooYi *faculte ou la prohibition d'aprfes la conduite respective des L ' epoux. Et cela est si vrai que vainement deux epoux qui se marieraient sous I'empire d'une loi prohibitive du divorce se reserveraient- ils la faculte de divorcer, comme ce serait en vain que, se mariant sous une loi qui permettrait le divorce, ils renonceraient d'avance k cette faculte, paroe-qu'Ji I'uno et h I'autre hypothfese s'appliquerait necessaire- ment la grande maxime consacree par I'art. 6 du Code civil, qu'on nc peut deroger par des conventions particulih-es aux his qui intiresacnt I' ordre puhlic et les bonnes moeurs. Aussi personne n'oserait-il pretendre aujourd'hui en France que des epoux maries sous I'empire du titre du divorce du Code civil peuvent encore divorcer, depuis que le divorce a ete aboli par la loi du 8 Mai 1816 Et par la raison inverse, il n'y a nul doute que la faculte de divorcer introduite pour la premiere fois en France par la loi du 20 Septembre 1792 n'ait ete, tout le temps / (/) Justice Se-\vall, in Barber v. Root, 10 Mass. 265. MARRIAGE. 211 qu'ellc a subsists, commune aux ^poux qui s'^taient mari^s avant cette loi, comme aux 6poux qui s'6taient mari^s sous son empire. "(5') 353. These principles have been thoroughly maintained in every country but England where divorce exists. In Scotland it was firmly settled that judicial divorce was not precluded by the mere circumstance of the marriage having been solemnized in England, or of the spouses having at the time of marriage been domiciled in England, even when divorce was here obtainable only by act of parliament. I may refer to the leading case of Warrender v. Warrender,(A) which will be noticed again on the other ^points which arose in it, and in which, so r^ooo-i far as it turned on the marriage having been contracted in Eng- L J land, Lord Brougham not only suggested as a possible ground that which, with the French and American authorities, I have already put forward', that divorce is not a remedy on the contraot,(i') but also observed that, even taking it as such, remedies depend on the Ux fori and not on the lex loci contr actus. (k) Another part however of his lordship's reasoning requires more particular notice : that in which, putting, for argument's sake, even the lex fori out of the question, he considers that, as the matrimonial domicile was Scotch, the parties must be considered as having contracted with reference to it as the place of execution. (Z) I have already urged the objections which lie to regarding the matrimonial contract as having any definite place of performance : and I only revert to the subject here in order to caution the student against supposing, from the passage in Warrender v. Warrender referred to, that the Scotch courts would be at all influenced by such a consideration. On the contrary they regularly dissolve marriages contracted, whether in England or in Scotland, by persons whose domicile at the time of the contract was English. (w) The courts of those American states where judicial divorce is established proceed with the same disregard of the matrimonial domicile and place of contract. (n) *354. As the English ecclesiastical courts separated only a r*qqqn mensa et thoro, and there is no country of which the laws do not L J permit a separation to that extent, and for the same causes for which it was decreed in England — since that separation and its causes are de- rived from the canon law, which was of general' authority throughout Christendom — it follows that those courts were never called on to de- [g) Kep., Effet Retroactif, Sect. III., I 11., Art. VI. Merlin himself applies the passage above cited to conflicts of territorial laws, in Kis Questions de Droit, Di- vorce, I XL, Art. I. (h) 2 CI. & F. 488 ; 9 Bl. N. R. 89. This decision was- made necessary by the doubt raised in consequence of Lolley's case, in Tovey v. Lindsay, 1 Dow, 117, in which the pursuer died before there was any decision under the judgment of remit : Fereusson on Marriage and Divorce, 50. i) 2 CI. & F. 537 ; 9 Bl. N. R. 117. (k) aCI. & F. 533 ; 9 Bl. N. E. 114. \l) 2 CL & F. 535 ; 9 Bl. N. R. 116. (m) In Trevelyan's case, in 1789, (Fergusson on the Consistorial Law in Scot- land, p. 33;) in Tewsh's case, in 1811, (ib., p. 42;) in Levett's and Rowland's cases, finally disposed of in 1816, (ib., pp. 70-84,) and in many others, the con- tract and matrimonial domicile were both English. It is superfluous to quote those in which the contract was Scotch, and the matrimonial domicile English, as they are included a fortiori in the former kind. («) Bishop on Marriage and Divorce, s. 745. 212 WESTLAKE ON PRIVATE INTERNATIONAL LAW. cide whether they would divorce for causes insufficient by the lex loci contractus of the marriage, or by the law of the matrimonial domicile. But that question must arise before the new divorce-court, inasmuch as it can divorce a vinculo, and may be called on to do so in the case of a marriage celebrated under a law by which divorce is prohibited. The cases will then be in point in which the dissolution of such marriages by foreign divorce-courts has been canvassed in England, and these are also of great interest on their own account. The first of them is Lolle/s case, where a Scotch divorce from a marriage contracted in England did not save the prisoner from a conviction for bigamy in consequence of a second marriage in the latter country. (o) Both Lolley and his first wife retained their English domicile throughout the proceedings which were had for the Scotch divorce, and which were founded on the Scotch doc- trine of transient residence as sufficient to ground the jurisdiction, which will have to be examined under the next head. Now as that doctrine is not generally received, the conviction might have been sustained without asserting the absolute indissolubility of an English marriage. But when the points reserved were argued before all the judges, they " held the conviction right, being unanimously of opinion that no sen- tence or act of any foreign country or state could dissolve an English r*Qim carriage *a vinculo matrimonii, for ground on which it was L J not liable to be dissolved a vinculo matrimonii in England. "(p) 355. Next, in M'Carthy v. Decaix,(5) it became necessary to con- sider whether a Danish divorce had dissolved the marriage of a Dane with an Englishwoman celebrated in England ; for, under the supposi- tion that it had, he had renounced some pecuniary rights, which renun- ciation was invalid if made upon an error as to so important a fact. Lord Eldon hesitated, apparently considering that the dictum in Lolley's case went beyond the facts there ; but Lord Brougham, who had been counsel for Lolley, and took the seals while M'Carthy v. Decaix remained unde- cided, pronounced that the marriage had not been dissolved. " If," said he, " it has not validly, and by the highest authorities in West- minster Hall, been holden that a foreign divorce cannot dissolve an English marriage, then nothing whatever has been established. For what was Lolley's case ? It was a case the strongest possible in favor of the doctrine contended for. It was not a question of civil right, but of felony. Lolley had hona fide, and in a confident belief, founded on the authority of the Scotch lawyers, that the Scotch divorce had effectually dissolved his prior English marriage, intermarried in Eng- land, living his first wife."()-j It will be observed that the facts in M'Carthy v. Decaix not only go beyond those in Lolley's case, from the Danish domicile and nationality of the h-usband, Mr. Tuite, at the time of the divorce, but also, since the same circumstances existed at his marriage, show that in Lord Brougham's apprehension the English character of the contract depended only on its having been solemnized r*^4n ''^®'^®' contrary to what might have been -expected *from his re- L -I marks in Warrender v. Warrender, above referred to, as to the (o) Riiss. & Ry. 23'7. {p) Russ. & Ry. 239. [q) 2 Ru. & My. 614. (,■) Ibid., p. 619. MAERIAQE. 213 matrimonal domicile being the place of execution. And this is im- portant, because it shows that the indissolubility attributed in LoUey's case to an English marriage can by no means be treated, as Chief Jus- tice Gibson of Pennsylvania attempted to treat it, as " an unavoidable consequence of the_British tenet of perpetual allegiance. "(s) The con- sequences of that tenet could not at any rate have been extended to a Dane, who never owed allegiance to the sovereign of the British Isles, even if it were easy to see how Lolley's allegiance could bind him to the law of England more than to that of Scotland ; and thus it appears that the doctrine has no other foundation than a supposed private right to indissolubility acquired through the contract. 356. In the same year with the decision of M'Carthy v. Decaix, 1831, Dr. Lushington, in the consistory court of London, pronounced a second marriage null under circumstances which differed from those in Lolley's case only in that the second marriage was solemnized in Scotland :(rt and he did so expressly on the ground that the continuing English domi- cile was a vital defect in the jurisdiction of the Scotch court which assumed to dissolve the first or English marriage. Finally, there is Warrender V. Warrender, in which it was held that the Scotch commissary court had jurisdiction to dissolve an English marriage, and in which Lord Brougham rejected Lolley's case, not as not involving a point of Scotch law, but as decided by judges who had no authority to declare the law for Scotland. " For," said he, " I do not see how, consistently with any principle, the judges who decided the case could limit its 'application to England, and think that it did not decide *also on the validity r-;|iq^9-i of the divorce in Scotland. They certainly could not hold the <- "'J second English marriage invalid and felonious in England, without assuming that the Scotch divorce was void even in Scotland. "(m) But if this be so, then the dictum in Lolley's case will be in point when a divorce from a French marriage, for example, shall be sought under our new law : and if the able argument by which Lord Brougham in War- render v. Warrender disputed that dictum, and of which I have given a considerable extract in Art. 248, be combined with my previous citations from Merlin and Justice Sewall, the reader may appreciate the amoiint and character of the authority arrayed against the opinion of the judges. 357. It is impossible not to perceive that the opinions of jurists are sometimes influenced by considerations more proper for the politician, and as the dictum in Lolley's case may thus be probably traced to a national feeling which must have been very much changed when judicial divorce was established in England, it may be expected to be restrained in future to the facts which were then before the judges. And thus we may conclude that whether in deciding on the validity of divorces granted abroad from English marriages, or in decreeing divorces from foreign marriages, the lex loci contractus will not in future prevent our courts from lending their aid towards establishing such rules of jurisdiction in this matter, as that divorces may neither be granted when they will not (a) In Dorsey v. Dorsey, T Watts, 349. (t) Conway v. Beazley, 3 Hagg. Cons. 639. (m) 2 CI. & F. 550. 214 WESTLAKB ON PRIVATE INTERNATIONAL LAW. be internationally respected, nor refused when they are demanded by the policy and morals of the forum. 358. Third question of Art. 349. — Th« first principle on which it is possible to raise such rules of jurisdiction as here contemplated is, that every thing must depend on the circumstances existing at the time the |.^„ . „-. suit is brought. *This principle is common as well to the Scotch L J theory, which grounds divorce on the necessity of upholding morality within the territory, and therefore rejects the condition of a permanent domicile therein, as to that more generally received abroad, which grounds it on the authority of a government to determine the status of its domiciled subjects. The possible quarters from which the principle may be impugned are, besides the place of celebration of the marriage and the then domicile of the parties, which have been already considered and rejected, the place where the adultery or other offence for which the divorce is sought was committed, and the domicile of the parties at the time of its commission : and the notion on which these have been put forward appears to be that divorce is a private remedy for a breach of contract, which however, if it were better founded than it is, would only be in point when there should be a conflict of laws between the forum and the locus delicti, without reference to the domicile at the time of the delict. But, as Mr. Bishop says, " the place where the offence was com- mitted, whether in the country in which the suit is brought or in a foreign country, is quite immaterial. This is the universal doctrine ; it is the same in the English, Scotch and American courts, and there is no con- flict upon the point." Farther also, " the domicile of the parties at the time the offence was committed is of no consequence :" and although " a contrary doctrine has been maintained in New Hampshire and Pennsyl- vania, in which states it is held that the tribunals of the country in which the parties were domiciled when the delictum occurred have alone the jurisdiction," yet "there is probably not a single analogy in the law to sustain this New Hampshire and Pennsylvania rule Who ever heard of a court refusing to sustain an action, either of tort or contract, on the bare ground that the parties, at the time of the injury or breach, r-^nAA-i were *domiciled in another jurisdiction ? Then, is the right of L J every government to determine the status of its own subjects limited or controlled by any such exception ?"(ar) 859. On precisely the same principles depends the question which arose in Belgium and Piedmont, when those countries were incorporated into the French empire, whether divorce could be granted there, under the French Code Civil, for causes which had occurred previous to its introduction. The affirmative was decided, for reasons which will be understood from the following expression of them by the court of appeal of Turin, given in one such case where the cause of divorce was judicial infamy incurred under the independent government of the country, but {x) Law of Marriage and Divorce, ss. 740, 741, lii. In Torey v. Lindsay, 1 Dow, 131, it had however been thought that the place where the offence was committed might be of importance ; but the case came to nothing, and the doubt, like so many others thrown out in the course of that unlucky cause, has since been repudiated by the highest authority : see particularly 2 CI. & F. 562 ; 9 Bl. N. R. 146. MARRIAGE. 215 from which during that independence divorce could not follow : — " il svjffit que lors de la publication de la loi Vital et la condition des per- soiines soient tels que la loi I'exige pour donner lieu au divorce, pour qu'onpuisse y avoir recours sans Messer d'aucune manilre que ce soil le jyrincipe de la non ritroactiviti." {y\ The argument holds, if for the status of infamy we substitute the actual condition of the persons in re- gard to the having been guilty of adultery or other misconduct, and is strengthened when, as in many of the cases to which the contrary doc- trine is applied in New Hampshire and Pennsylvania, there is no conflict of laws, but only a question of jurisdiction. But even where there is a conflict of laws between the forum and the place where the ofience was committed, Merlin, who here also points out the analogy to a change of law in the same ^country, decides absolutely for the forum, even r*qic-i though the ofience may have been committed in a country where *- -• not merely is divorce prohibited, but of which the parties were then citizens. (z) 860. Next, the Scotch doctrine with regard to the defender is that his mere presence in the country renders him amenable to the jurisdic- tion, so that he is well cited personally the moment he sets foot in Scot- land, or by a citation left at his dwelling-place after a sojourn of forty days. (a) This was established in Utterton v. Tewsh,(6) on appeal to the court of session, where the defect of Lord Meadowbank's reasoning appears to be in an over estimate of the necessity of a speedy procedure in cases of divorce : Scotch morals could not suffer much from the irre- gularities of persons transiently there, even if, which the argument begs, no other means could be found of correcting them than a divorce a vinculo. And, as the government of their domicile has the strongest interest in the morals of men, it is not probable that any country will recognize these foreign divorces of its resident subjects. They are cer- tainly not recognized in England. (c) 361. Admitting then the necessity that the jurisdiction shall be founded in domicile, it follows that if the husband *be plaintiif, rnso^pT his domicile being in law that of his wife also, the domicile of L J both is the same, and is the proper forum for divorce. She is bound to follow him, and, if in fact she has a separate residence, she cannot take advantage against him of her own wrong. This has been the constant (?/) Journal des Audiences de la Cour de Cassation, an 1809, Supplement, p. 15 : and Merlin, Repertoire, Effet Retroactif, sect. III., g II., Art. VI. Iz) Questions de Droit, Divorce, ^ XI., Art. II. (a) Upon this forty days' residence has been raised the question whether it will still ground the jurisdiction, if in fraud of a foreign law: Allison v. Catley, 1 Sec. Sor. 1025. But as the very theory of the short residence is that no foreign law has a right to be heard in the matter, the question of mala fides has been repu- diated as inapplicable by Lord Truro, in Geils 1. Geils, 1 Macq. 275. Lord St. Leonard's, in the latter case, held AUisouv. Catley sustainable on another ground : 1 Macq. 265. When the jurisdiction is admitted to be founded on domicile, the mala fides comes in fairly, as a flaw in the reality of the domicile, which is ex- cluded by the intention to return on obtaining the divorce. (b) Ferguss. Rep. 23. (c) Conway T. Beazley, 3 Hagg. Cons. 639 ; Robins v. Dolphin, Sw. & Tr. 37. The Scotch practice is equally repudiated in the United States: Bishop, s. 721. 216 WBSTLAKE ON PRIVATE INTERNATIONAL LAAV. practice as well of the American((^ as of the English ecclesiastical courts, as it doubtless will also be of our new divorce-court : and it was finally decided for Scotland by Warrender v. Warrender,(e) which proved also by is very point that an actual separation by consent will not preclude the husband from suing in his own forum, provided there has been no attempt to secure by contract the continuance of that separation, and which also opposed the powerful reasoning of Lords "Brougham and Lyndhurst to Lord Eldon's assertion in Tovey v. Lindsay, that, when the husband has agreed that the wife shall live separate, he can only sue her in the new forum which she may have acquired. (/) 362. But Merlin, speaking with reference to the prohibition of divorce in France, asks whether a husband, once French, but who has naturalized himself abroad without his wife having done so too, can sue her for a divorce in his new country, whether by consent, as divorce was origi- nally allowed by the Code Civil to be had by consent with the sanction of a court of justice, or oontentiously. And he answers both questions in the negative. For, says he, " de meme en effet que pour contracter un mariage il ne suflSt pas que I'une des deux parties soit capable de se marier, qu'il faut qu'elles le soient toutes deux, que I'inoapacit^ de I'une ne peut pas etre couverte par la capacity de I'autre ; de mgme aussi pour r*9a.7"l *que Ton puisse valablement dissoudre par le divorce un mariage L J contracts legalement, il ne sufiSt pas que I'une des deux epous soit capable de divorcer, il faut qu'ils les soient I'un et I'autre j et la capacity qu'en acquiert I'un par un fait qui lui est absolument personnel ne peut pas y habiliter I'autre h, qui ce fait reste Stranger. Or le mari Franjais qui sans le concours de sa femme abdique sa patrie et se fait naturaliser, par exemple, dans le royaume des Pays-Bas oil le titre du Divorce du Code civil est encore en pleine vigueur, acquiert, sans doute la capacity de divorcer, mais la communique-t-il k sa femme ? Non, evidemment non. Pour que sa femme pflt I'acquerir en meme temps que lui, i,l faudrait que la naturalisation du mari en pays etranger fiit de plein droit commune h, la femme, il faudrait que la femme perdit la quality de Frangaise par eela seul que le mari perdrait la quality de Frangais, et cela est impossible. Sans doute c'est un principe g(Sn6ral que la femme suit la condition de son mari, et c'est pourquoi I'art. 12 du Code civil declare Frangaise I'fitrangfere qui epouse un Frangais. Mais conclure de Itl que la. femme qui est devenue Frangaise par son mariage avec un Frangais, ou qui I'^tait par droit de naissanee au moment oil elle s'est marine, puisse en perdre la quality par la natu- ralisation que son mari acquiert en pays stranger, ce serait une grande erreur Vainement objecterait-on qu'aus termes de I'art. 108 du Code civil, la femme niariie n'a point d'autre domicile que c.elui de son mari II est clair que quand mgme la femme Frangaise devrait Itre r^put^e de plein droit domicili^e dans le pays etranger oil son mari s'est fait naturaliser; je dis plus, quand meme elle y serait doraicili^e de fait ; elle ne serait pas pour cela r^gie, quant ii son 6tat, par la loi de ce pays ; elle ne pourrait pas pour cela, en vertu de la loi (d) Bishop on Marriage and Divorce, s. '729. (e) 2 CI. & F. 488 ; 9 Bl. N. R. 89. (/) 1 Dow, U9, 138. MARRIAGE. 217 de ce pays, consentir k la dissolution de son mariage par le divorce ; elle ne pourrait pas pour cela, en vertu de *la. loi de ce pays, 8tre r^q^o-i actionn^e par son mari h I'effet de voir prononcer cette diasolu- L J tion malgr6 c\le."(g) 363. It is plain that this reasoning rests on two grounds, neither of which is admitted in Great Britain or America. One, which however Merlin probably intended to apply only to the case of a divorce by mutual consent, makes it a question of capacity, and as such to de- pend on the law of the nationality : the other makes a divorce claimed even in foro contentioso to depend on the law of France, on the preten- sion which the Code Civil puts forward to regulate the status of French persons even abroad. We know nothing of a divorce by consent, but if persons of British national character should obtain one in any foreign country where they might be domiciled, we should probably recognize it : and, regarding divorce as a public measure, our own interests would prevent our holding French subjects to be exempt from it here, if amenable to the jurisdiction by a permanent domicile, however the French courts might in such case refuse to recognize the acts of ours. 36i. But now let us suppose the wife to be plaintiiF, and to be living de facto separate from her husband. That she may sue him for divorce in his domicile is apparent on every ground, whether we consider the remedy as a private one between the parties, or as partaking also of a public character. In the former case, that is the jurisdiction to which he, the defendant, is prima facie amenable : in the latter, it is that which is most interested in the question, as being the place where the matrimonial duties should rightfully be performed. And the same also is the determination of the canon law, in the contemplation of which divorce a mensa et tJioro bore neither altogether a public character, nor merely that of a remedy appertaining of *right to the plaintiff, r^jsotq-i but of a proceeding intended for the health of the defendant's L -I soul : his soul could only be corrected by the ordinary of his domicile, who alone had jurisdiction over him in respect of his person. But in several of the American states it is necessary by the local law that plain- tiffs in divorce controversies should be domiciled in the country ; and here consequently a doubt arose. Yet inasmuch as the wife can only obtain her divorce upon grounds which would prove her to have been justified in living apart from her husband, it has been justly held there that she may sue him in his domicile upon the legal fiction of being herself domiciled there also, and that he cannot set up in answer the foreign residence into which he has driven her by his own wrong. (A) In Scotland the pursuer's domicile is of so little account that the oath of calumny may be taken liy commission. 365. But can the wife sue her husband for a divorce in the state in which she resides apart from him? The notion that she can do so when the separation, whether provoked or not, has been made by her, ' has probably never been entertained out of America; but there it is well established. For, says an American authority, " it is practically (ff) Questions de Droit, Divorce, § XI., Art. IV. (h) Bisiiop, s. 729. 218 'WBSTLAKB ON PRIVATE INTERNATIONAL LAW. impossible for a party to proceed in anotlier state than that in -which he lives ; because in probably all, unless possibly we may except Loui- siana, there are either statutory provisions requiring that the plaintiff shall have resided within the state a certain number of years before he brings his suit, or there are other technical statutory impediments which are tantamount in their effect to this. But nearly or quite all the statutes provide for notice, by publication" in newspapers, "to absent defendants; and unless the judicial tribunals give effect to each other's decrees rendered under these statutes in favor of bona fide r*^fi01 *^'^^jects, we shall be in a most distressing condition of con- L -I flict and confusion ."(i) The same American authority justifies this as follows : "The general doctrine is familiar, that the domicile of the wife is in law that of the husband. But it will probably be found on examination that the doctrine rests upon the legal duty of the wife to follow and dwell with the husband wherever he goes. If he commits an offence which entitles her to have the marriage dissolved, she is not only discharged thereby immediately, and without a judicial determi- nation of the question, from her duty to follow and dwell with him, but she must abandon him, or the cohabitation will amount to a con- demnation and bar her claim to the remedy. In other words, she must establish a domicile of her own separate from the husband, thovgh it may he or not in the same judicial locality as his It is the bur- den of her allegation that she is entitled, through the misconduct of her husband, to a separate domicile. If she fails to prove this, she fails in her cause Having therefore arrived at the conclusion that the husband and wife may have, for purposes of divorce, separate domiciles, we shall find no difficulty in settling upon principle that the courts of the actual bona fide domicile of either may entertain the juris- diction. If it were not so, then both states would be deprived of the right to determine the status of their own subjects, each must yield to foreign power in the management of its domestic concerns. A state would thus be compelled to refuse redress to the wrongs of a citizen. "(A-) It is apparent that the force of this argument lies in the words which I have printed in italics, for it does not follow that the duty of break- ing off the cohabitation di'ives the wife to change her forum : nor has P^qr-i-i she, on general legal *principles, the power to do so, till freed L J from the marriage by sentence, with which the right to a sen- tence must not be confounded. And therefore the reasonable rule would seem to be that for which the same learned writer assures us that there is some American authority, though greatly overweighed ; namely, "that the wife cannot, by a removal of her habitation after the commis- sion of the offence, acquire a new jurisdiction in which to prosecute her claim for divoroe."(Z) It would be often impossible for the wife to obtain redress, could the husband by a removal after the offence, pre- vent her suing him in his former domicile, for in many cases she would not even know his new abode : and her condition interests the state in which she continues to reside, and from the citizenship of which she (»•) Bishop, s. 732. (k) Bishop, ss. 128, 731. (Z) Bishop, s. 730. MARRIAGE. 219 has never been rightfully withdrawn. (Jm) And even if the wife should, after the husband's offence, remove into another jurisdiction, and he should sue her there for the restitution of conjugal rights, she may then fairly, in answer, ask for a divorce, because the husband has by his suit submitted himself to the forum, and the mere dismissal of his demand would afford the wife no substantial protection from himYra) *3. Pecuniary Effects of the Marriage. r*3521 366. It is universally allowed that, when a marriage takes place with- out settlement, the mutual rights of the husband and wife in each other's movable property, whether owned at the time of the marriage or after- wards acquired, are to be regulated by the law of the matrimonial domi- cile, so long as that remains unchanged. The reasons given are four. First, that though the matrimonial domicile has nothing analogous to the place of performance in contracts, when considered with reference to the status itself, yet that it must be held to have entered into the ex- pectations of the parties with reference to the pecuniary effects of that status, since there is no other law by which they could have supposed that they would be regulated, and, if they had not acqiiiesced in their regulation by that law, they could have provided against it by express agreement, or by declining the marriage. This theory, known as that of a tacit contract, extends the law of the original matrimonial domicile to acquests also made after its change, since that change depends on the single will of the husband, which cannot affect rights founded on a con- currence of wills in a common expectation. It is identified with the name of Dumoulin, from the ability with which he maintained it, but has been adopted by most of the greatest jurists, both before and since his time.(o) Secondly, that though an expectation as to the pecuniary effects of the marriage cannot be attributed to the parties, *Since r^i-qrq-i it is certain they do not always think of those effects at all when L J concluding the contract, yet the same result follows, and with the same extension to the case of a change of domicile, from the consideration that they both did in fact submit themselves to the law of the matrimonial (m) That the English judge ordinary would order substituted service in such cases may be inferred from Chandler v. Chandler, 27 L. J., N. S., Ma. k Pr. 35. See also Robotham v. Eobotham, Ibid., p. 33. His power to do so rests on stat. 20 & 21 Vict. c. 85, s. 42, and the 10th rule made thereunder. (n) Gells v. Geils, (in England,) 6 Notes of Cases, 97 ; Geils v. Geils, (in Scot- land,) 1 Macq. 255, 269. The latter case shows that the having obtained a divorce ffl mensa et thoro in this manner does not preclude the wife from obtaining one a vinculo in the husband's domicile : and from the reasoning it may be concluded, as might be expected, that the having exhausted the remedies given in this direc- tion in the then domicile does not preclude either party from obtaining the larger ones given in a new bona fide domicile. (o) With Dumoulin, (t. 2, p. 963 ; t. 3, p. 555, ed. 1581,) for the indifference of a change of domicile, are, besides Savigny, P. Voet, de Stat. s. 9, c. 2, n. 7 ; J. Voet, ad Pand. 1. 23, t. 2, n. 87 ; Hertius, de Coll. Leg., s. 4, § 48, 49 ; Merlin, R6p., Communaut^ de Biens, I I., Art. III. j Foelix, n. 91. In the same sense are four judgments of the parliament of Paris, of' the dates of 1640, 1700, 1718, and 1746, adduced by Merlin, ubi supra. 220 WESTLAKB ON PEIVATB INTERNATIONAL LAW. domicile, by the concurrence of their wills in the matrimonial contract itself. This is Savigny's modification of Dumoulin's theory.(j9) 367. Thirdly, that movables are governed by the law of the owner's domicile. This reason is limited to the case in which the matrimonial domicile remains unchanged, and after a change, would refer the rights of the spouses to the law of the new domicile. But from its extreme vagueness, it is impossible to say whether it would refer to the law of the new domicile merely the rights of the spouses in such property as either may acquire after the change, regarding those in the property which they bring with them into the jurisdiction as finally vested, or whether it would displace and remodel even the latter rights.(5) Against the latter interpretation speaks strongly the injustice of permitting the wife's vested rights to be devested by the husband's act, nor does even l-^„^. the more restricted *one escape the accusation of subjecting the L J wife's interests to a needless uncertaipty, which cannot have been in her intention. The maxim on which either proposition is based seems to slip through our fingers when we try to grasp it. We saw in the chapter on movables how questionable was the doctrine that parti- cular assignments of chattels depended for their validity on the law of the assignor's domicile : but the present doctrine has nothing to do even with that. If the husband or wife acquires in the new domicile, and ex hypothesi does nothing to assign this acquest, or any interest in it, to the other consort, can the law step in, and make an assignment inter vivos upon no human act intervened ? It would be difiicult to parallel this in jurisprudence, if it is so. Gadit qucestio, however, if the marriage has already assigned this acquest by another law. 368. Fourthly, that universal assignments of movables, made by or ia accordance with the law of the owner's or assignor's domicile, are effec- tual everywhere, irrespective of the situation of the chattels which enter into the mass.(r) This reason agrees with the first and second in refer- ring to the law of the matrimonial domicile the rights of the spouses even in acquests made after a change, since the prospective assignment made by and at the moment of the marriage may include these, as well as the future acquests to be made in the matrimonial domicile, and there is cer- (p) V. 8, pp. 329-334. (y) Huber, (de Confl. Leg., s. 9,) determines the rights, in property acquired after the cliange, by the law of the new domicile, siciit res ante a conmtunes factse maneant in eo statu juris quern induerunt. And this is the opinion of Story, (s. 187,) and has been consecrated in the Louisiana code, (Art. 2370,) after having been established there by the leading cases of Gale v. Davis's Heirs, 4 Mar. 645, and Saul T. his Creditors, 5 Mar. N. S. 569. But the code happens to mention the case of persons who come to lire within the state; wherefore, when the husband removed his domicile to Louisiana without being de facto accompanied by the wife, the court, thinking itself remit'ed to the general principles, held the subse- quent acquests not to follow the law of the new domicile, which was less favora- ble to the husband, unless his assent to it could be proved : Dixon v. Dixon's Ex- ecutors, 4 Louis. 188. Eichhorn, (Deutsches Recht, s. 359, 307 d, 310 e, f,) deter- mines the rights by the law of the new domicile, for property acquired as well before as after the change. (r) "The legal assignment of a marriage operates, without regard to territory, all the world over:" Lord Meadowbank, in Stein's case, 1 Rose, 481. I do not know whether his lordship would have accepted my conclusion, th it it must also operate without regard to a subsequent change of domicile. MAREIAflB. 221 tainly no universal assignment wrought by the change of domicile which can include any description of property. 369. The two last reasons differ from the two first in*exclud- r:|!qf:f;-i ing immovables, which must, on principle, be included either in L J a tacit contract or a tacit submission : or at least, if any one will say that the contract or submission refers to the law of the situation for each in- dividual article of the mass, he must, on principle, say so for the mov- able articles as well as for the immovable ones,(s) whence those who side with Dumoulin and Savigny have generally refused in this matter the distinction between the two classes of property, (i) The position of those two great jurists appears to me unassailable, but its consequence as to land cannot be admitted in England, partly from the strict forms of con- veyance to which we tie the acquisition, not only of the full property in land, but even of any interest in it; and partly from the discrepancy be- tween the nature of those limited estates which our system of real pro- perty recognizes, and those interests which would be created under most continental marriage laws. Indeed, even in movables, we find it best not to inquire too particularly into the extent of the difi'erence between the English and other legal systems, lest all international communion of law should be impossible. The favorite basis for the theory with English lawyers would probably be the universal efBcacy of the assignment by marriage, suggested to them by the sweeping assignment operated by an English union : but, very much as in the case of a foreign bankrupt's *syndics, if we found that the husband could receive or sue for r^qcR-i the wife's property by the law of the matrimonial domicile, we L J should not be over nice in considering whether his title was an assign- ment or a procuration. (i() 370. Whatever arguments there are for deciding by the law of the matrimonial domicile the interest of the spouses in the foreign immov- ables owned by them at the time of the marriage, the same apply equally to those afterwards purchased out of the movable property of either con- sort, or of the community if the couple are in community, and with an important addition : for if the lex situs were allowed to prevail as to the latter, movable property might be withdrawn from the dominion of its own law, to the damage of interests already vested in one or the other (s) That ia, on the ground taken by Dumoulin and Savigny, who regard the ab- sence of express contract as a reference or submission to the particular provisions of some law, and therefore to that of the domicile. Vandermeulen, whose tract may be seen at length in Merlin, (ubi supra,.) does not seem to perceive this mean- ing of Dumoulin, whom he supposes to regard the parties as referring to some law as law; whence he is of course able to deduce that, if so, they must refer to the lex situs for land, without being driven to the same conclusion for chattels. (t) The Voets indeed accept this distinction here, as they usually pushed far the reality of statutes: Haul, de Stat., s. 4, c. 3, n. 9 ; Johann., ad Pand., 1. 23, t. 2, n. 60. But the other jurists mentioned in note (o), p. 352, refuse it, as does also Huber. See Foelix, n. 90. (u) Campbell v. French, 3 Ves. 321, 323 ; Sawer v. Shute, 1 Anstr. 63 ; Dues v. Smith, Jacob, 544 ; M-Cormick v. Garnett, 5 D. M. G. 278. I know of no English authority for the case of a change of domicile, unless a dictum of Lord Eldon ia Lashley v. Hog, (1 Roberts., So. Ap. Ca. 4; 1 Surge, 625,) be, as it sometimes is, considered in point. But, as to the real nature of the case of Foubert v. Turst, to which that dictum applied, see below, Art. 373. 222 WESTLAKB ON PRIVATE INTBENAT ION AL LAW. party. Hence even Vandermeulen, whose opposition as to the former point we have seen, held as to the latter that, notwithstanding a con- veyance must necessarily operate according to the lex situs, yet the in- terest given by the lex domicilii may be realized by an action either on the implied matrimonial contract, or on the right to compensation for the purchase-money. Of course if in any country the legal ownership of land does not depend oil strict forms of conveyance, but follows that of the purchase-money, there, upon these principles, the land itself would be immediately affected by the law of the matrimonial domicile : and this appears to have been the case in the old jurisprudence of the parlia- ment of Paris. That tribunal, by judgments of 1549, 1745, and 1746, decided that acquests of land en pays coutumier were not common, r*Qf^7n *when made by one whose matrimonial domicile was en pays de L J droit icrit ; and in 1539, and again in 1718, that acquests of land liors pays coutumier were common, when made by one whose matri- monial domicile was en pays coutumier. {x) 371. If there be a settlement, or collateral marriage contract, exe- cuted by the parties, its validity, and their rights under it, will be de- termined by the same rules which would apply to any other contract made in the place where the marriage is celebrated, and to be performed in that where the matrimonial domicile is first established. Thus the formal or external requisites will depend generally on the place of cele- bration ; the interpretation generally, and the legality and operation always, on the domicile. Only if it relate to land, it cannot operate as a conveyance unless it pursue the forms of the situs, though even then it will be allowed in the situs such operation as it may claim in the cha- racter of a contract. Also, on these express agreements, there can be no substantial question as to the consequence of a change of domicile before making any acquest which may come under them, for they will affect according to their terms all property wherever and whenever acquired. (?/) It has been held in Louisiana that a matrimonial contract which P^qcr,-. *would adopt a law foreign to the domicile must set out its pro- L J visions, and not merely refer to the law eo nomine :{z\ but a con- trary opinion has been expressed by the present Master of the Ilolls.(a) {x) Merlin, ubi supra. [y) English cases where effect has been given to foreign marriage contracts ac- cording to these principles, are Foubert v. Turst, Pre. Ch. 207 ; 1 Bro. P. C. 38 fol., 129 Oct., (change of domicile;) Anstruther v. Adair, 2 My. k Ke. 513; Wil- liams V. Williams, 3 Beav. 547; Este v. Smyth, 18 Beav. 112, where the domicile was really French, and the contract interpreted in effect by French law : Duncan T. Cannau, 18 Beav. 128; 7 D. M. G. 78, (change of domicile.) See also Forbes v. Adams, 9 Sim. 462, where a wife effectually conveyed her interest under her settlement, in money charged on land, in the form of the sjVjm, which was also the matrimonial domicile: and Duncan v. Campbell, 12 Sim. 616, where the rights of the consorts under a postnuptial settlement were decided by the law of the domi- cile. The doctrines of this article are asserted also by Story, s. 184. (z) Boucier v. Lanusse, 3 Mar. 581. A similar rule is provided by Art. 1390 of the Code Napoleon, for contracts adopting any of the old local laws or customs of France. (a) In Este v. Smyth, 18 Beav. 122. See Byam v. Byam, 19 Beav. 58, where some reference was made in the Italian articles to the law of England, but at any rate the domicile was English, the husband being in the English'army. MARRIAGE. • 223 372. If a settlement, or other express contract, be made on the mar- riage not comprising all the movable property of either party, the question whether it excludes any rights which would otherwise arise in the part not settled or contracted on will be decided by the law of the matrimonial domicile, as appropriate both to the operation of the settlement or con- tract, and to the destination of the remaining property. And the residue on which the settlement or contract is held not to operate, either ex- pressly or through effect of law, will of course go by the same rule.(J) 373. It is universally admitted in principle that the succession to either consort on death must be separated from the subjects treated of in this section, and be regulated by the law of the last domicile of the deceased. (c) In practice however there is often a great difficulty, on the question what matters belong to the department of succession, and what to the pecuniary effects of the marriage. In Foubert v. Turst,(c?) the admitted effect of the contracts, of which there were both an ante — and a post-nuptial one, was that the consorts were in community as to all the property in the causC; except a sum of 800 livres, which '^was to p,icqcQ-i go to "the wife and her heirs of her part." The wife predeoeas- L J ing the husband, and without issue, after a removal of the domicile from the custom of Paris to England, " her heirs of her part" according tO' the custom were of course entitled, by contract, to the 800 livres : but the husband, as his wife's heir by the law of England, claimed her share in the community as to the rest ; while her relations claimed this also, evidently on the ground that the ante-nuptial contract had been made with the intervention of the wife's mother, who should therefore be con- sidered as having stipulated for them by implication, when she stipulated for the community in return for the portion which she gave with her daughter. Lord Keeper Wright repelled this implication, holding that a contract, which, so far as it went, coincided with the custom of Paris, must be taken as an adoption of the custom. But his decree was re- versed in the House of Lords, and the wife's share in the community given to the heirs of her part, on their counsel pointing out that in cer- tain particulars, collateral to the general stipulation of community, the contract deviated from the custom of Paris, whence it was argued that it could not in any part be considered as an adoption of it. The con- tract was probably most correctly interpreted by the higher court,(e) but in both courts the true nature of the contention appears to have been understood. If there had been an ante-nuptial contract between the husband and wife alone, with no particular reason for implying a stipu- lation in favor of her relations, or if the parties had married under the custom of Paris without express agreement, there is no reason to suppose that the House of Lords would not ^ave held the *husband en- r:^qf!f)-| titled, as successor by the law of her last domicile, to the share L J (i) These were the points ia Watts v. Shrimpton, 21 Beav. 97, which however wag decided on the national character at the time of the marriage, against the domicile. (c) Savigny, v. 8, p. 336. {d) Pre. Cha. 207 ; 1 Bro. P. C. 38 fol., 129 oct. \e) The post-nuptial agreement went to the very point, and was in favor of the husband ; which showed pretty clearly that when it was made, the ante-nuptial agreement was not understood in his favor. 22i WESTLAKE ON PRIVATE INTERNATIONAL LAW. in tbe community which the contract, or the law of her matrimonial domicile, would have given the wife on her death. In Lashley v. Hog, Lord Eldon distinctly said that, had there been no contract, the decision in Foubert v. Turst must have been for the husband. (/) [*361] ^CHAPTER XII. FOREIGN JUDGMENTS AGAINST THE PERSON. 374. Having now gone through the international questions of juris- diction and law which arise^in the trial of original causes of action, so far as these are independent of the status of the parties, we have to con- sider the eifect which will be allowed to the personal judgment of a foreign tribunal pronounced in for o contentioso. Now since a judgment is merely an act of sovereign power, it can of itself have no extra- territorial effect. The ofBcers of the state in which it is pronounced Tnust carry it into execution, whether with or without the intervention of any farther formalities, but it can convey no authority to the officers of another state. Hence it is universally admitted, even as between those countries in which, as in France, a judgment contains a direction to the officers of justice and is therefore, if domestic, immediately exe- cutable on being delivered to such an officer by the party,(a) that a foreign judgment, though possessing the same character at home, can only obtain effect through the sanction accorded to it by the territorial courts.(i) This sanction however may be given either directly or in- directly; that is, either by the declaration of the local judge that the foreign judgment is exicutoire, or admitted to execution within his juris- r*^R91 '^'''''■o'^! o'* ^y ^ ^^^ judgment pronounced *by the local judge L ^J in favor of the same party in an action brought on the former one. The first method is used in most parts of the continent of Europe, the second in the British Isles^and the countries colonized from them.(c) Many of the questions which arise are common to both the systems, though with a slightly different appearance, for the objections to declar- ing a foreign judgment executory are analogous to the defences to an action on such a judgment; but the question of the effect to be given to a foreign judgment, when declared executory, in charging by a tacit (/) This is the dictum the unlucky wording of which, in the very brief note of it, has caused it to be sometimes cited for the new domicile, in the c.ise of a con- tention between the husband and mfe: see above, p. 356, note (ti). It is not likely that Lord Eldon meant anything of the kind, or confounded a question of succes- sion with one between the consorts. (a) Such a judgment emporte la voie do I' execution paree. (b) On this ground it has been held, that, in a suit in chancery to have the benefit of a foreign judgment, a receiver cannot be appointed before decree : Houl- ditch V. Donegall, Beat. 390. (c) In Spain, Sweden and Norway foreign judgments are neither declared exe- cutory, nor is an action brought on them, but the successful plaintiff must bring a new action on the original cause : Foclix, u. 398, 400, 401. FOREIGN JUDGMENTS AGAINST THE PERSON. 225 lien the goods of the party, has no analogue in the English system, for the judgment in the new suit will of course operate precisely as any other rendered by the same court. We will now suppose an action brought in England or the United States on a foreign judgment, and examine in order the qliestions to which it gives rise. 375. First, the judgment sued on must, in England, be proved in the manner pointed out by the st. 14 & 15 Vict. c. 99, s. 7. " All procla- mations, treaties, and other acts of state of any foreign state or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any court of justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved in any court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, either by examined copies or by copies authenticated as hereinafter mentioned ; that is to say, if the document sought to be proved be a proclamation, treaty, or other act of state, the authenticated copy to be admissible in evidence must purport to be sealed *with the seal of the foreign state or British colony r^ofjo-i to which the original document belongs; and if the document L J sought to be proved be a judgment, decree, order, or other judicial pro- ceeding of any foreign or colonial court, or an affidavit, pleading, or other legal document filed or deposited in any such court, the authenti- cated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or colonial court to which the original docu- ment belongs, or, in the event of such court having no seal, to be signed by the judge, or, if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said copy that the court whereof he is a judge has no seal ; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the origin^l.document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of, the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement. "(cZ) And, to sustain the action, the examined or authenticated copy must be that of the judgment itself: a monition, which "is either the equivalent of a writ of execution, or a prelude to it by way of attachment, is not sufficient evidence of a judg- ment of the same amount."(e) 376. Next, the judgment thus proved must be one in personam for an ascertained sum. Thus an action would not lie, where a definite sum had been adjudged, but liable to reduction by the amount of costs which the plaintiff *might have had taxed. (/) If however the judg- r^oaAri ment have been rendered with a stay of execution for the pur- L J [d) By the interpretation clause, British colonies here include all British pos- sessions. (e) Obicini v. Bligh, 8 Bing. 335, 354. (/) Sadler v. Robins, 1 Camp. 253. FEBRrABY, 1859.— 15 226 WESTLAKB ON PRIVATE INTERNATIONAL LATV. pose of determiDiDg the amount of a cross demand, that will not prevent an action on it here in the mean time, though our court will, on applica- tion, stay proceedings for such a time as " to give the defendant the fair benefit of the reservation" made by the foreign court. ((7) But, the sum being certain, it may have been adjudged merely for costs in a suit of which the primary object was not pecuniary, as for divorce,(^) provided a general personal liability to pay those costs was created by the sen- tence: for an action will not lie on an order of a foreign court to pay costs, enforceable only by attachment in the court where the order was made, inasmuch as no action at law can be maintained on such an order even of the English chancery, (i) While pn the other hand, if the foreign judgment created a general personal liability to pay money, the action will lie on it in a court of law here, notwithstanding that it may have been rendered by a court of equity in a country where the English dis- tinction between law and equity is adopted. (^) 377. But need the foreign judgment be final ? The question does not often arise on the continent, as it is there a peculiarity of France, and of the other states which have taken this particular from the French codes, that even a domestic judgment can be executed before the time for appeal has expired ; and no one can think of giving an earlier validity to a foreign than to a home sentence. In England, a colonial decree may be sued on while an appeal to the Privy Council is still open and i-^„„--. intended ■.(J) *and after judgment for the plaintiff in an action on L -la French sentence, stay of execution pending an appeal already instituted from the latter was refused. (m) And this seems quite fair, but when the judgment is of no force in its own country pending the appeal, it would seem that it ought on principle to receive no force here. And where the foreign order is interlocutory, so that it " may be varied by the subsequent proceedings in the cause," the English court will entertain no proceedings in relation to it. (re) 378. Such foreign judgment thus proved is considered in England and America as prima facie evidence of a promise, by the party against whom it is rendered, to pay its amount. It therefore constitutes a debt by simple contract, to be sued for, says an old case, in " an indebitatus assumpsit, or an insimul compuiasset, &c., so that the Statute of Limita- tions is pleadable. "(o) And the same principles will be applied if, as may be done in suitable circumstances, the plaint'flf files a bill in chan- cery to have the benefit of the foreign proceedings.(p) But this fiction of a promise was only resorted to in order to bring the liability within (ff) Hall V. Odber, 11 East, 118, 126. (A) Russell v. Smyth, 9 M. & W. 810; and see Justice Gaselee's judgment in Obicini v. Bligh, 8 Bing. 354. (i) Sbeehy v. Professional Life Assurance Company, 2 0. B., N. S. 211, 256. (A) Henderson v. Henderson, 6 Q. B. 288. {1} Henderson v. Henderson, 3 Ha. 100. (m) Alivon v. Furnival, 1 Or. M. & R. 297. (n) Paul V. Roy, 15 Beav. 433, 440 ; Patrick v. Sbedden, 2 E. & B. 14. (0) Dupleix v. De Roven, 2 Vern. 540, 541. See also Walker v. Witter, Doug. 1. (jo) Houlditch v. Doncgall, 2 CI. & P. 470; 8 Bl. N. R. 301. As to wbether a simple decree for an ascertained amount can be sued on in chancery, see Paul v. Roy, 15 Beav. 433, 443. FOREIGN JUDGMENTS AGAINST THE PERSON. 227 the Englisli forms of action : it may not be rebutted by proof of its un- reality, if the judgment stand the other tests to which we shall presently see it subjected, and the promise will therefore be equally presumed whether the judgment was given in invitum, or confirmed an award made under submission to a reference. '< We cannot think," said Lord Den- man, " that the parties' previous consent to be bound makes a stronger obligation, than that *of every subject of the state to perform the r;(tqef-i duties imposed on him by a court of justice exercising lawful ju- L J risdiction over him."(2) These words indeed contain the pith of the reason for which, in any case, a foreign judgment is either declared exe- cutory on the continent, or is upheld as a cause of action under the Eng- lish law. It is that on the person against whom the decree was made a duty was imposed by lawful authority to obey it, so that another court, in lending its aid to the right correlative to that duty, does but follow out the principle of recognizing internatiopally rights which have once well accrued. The competence then of the court, that is, the lawfulness of the authority which imposed the duty, is the foundation of all faith given to the res judicata of a foreign tribunal : and the want of such competence is the first objection we must consider as urged against the judgment. 379. Now we have seen in the preceding chapters, under the several divisions in which the causes of action arise, that civilized nations diff'er widely as to the rules of jurisdiction. Naturally, therefore, when called on to enforce foreign judgments, each tries by its own maxims the com- petence of the courts which pronounced them.(r-) To do otherwise, would be to license every foreign state to draw to itself all causes which it pleased ; nor can any judge be required to enforce a duty not imposed on the defendant by an authority held lawful in his own tribunal. These principles are said, to be well settled in, continental practice, and at least any deviation from them is not made on the side of admitting more widely the competence of foreign tribunals. Thus, we have seen in Art. 113, that the Code Napoleon establishes a personal forum of the *pkin- noa-j-] tiff, and this has been followed in the Sardinian code ; but no L -J authority is allowed in France to a Piedmontese judgment resting on the Piedmontese character of the plaintiff.(«) It would seem as if the com- petence of a, foreign court was tested primarily by the Eoman principles of the forum rei and the forum speciale obligationis, besides being sub- jected to the farther condition that the particular rule on which it is based must also be received in the country where the execution of the judgment is sought. 380. The farther condition jtist mentioned has not been exacted in England from judgmepts satisfying the general maxims on jurisdiction, because the authority of the superior courts at Westminster was anciently limited by service of the writ within the realm, so that to have insisted (}) In Henderson v. Henderson, 6 Q. B. 298. The objection thus answered arose out of the fact that in Henley v. Soper, 8 B. & Or. 16, the decree sued on had been made on the result of an arbitration. (r) Foelix, n. 321, 321. («) Judgment of the royal court of Grenoble, of 3rd January, 1829 ; Sirey, 1829, II., 176; Foelix, n. 321. 228 WESTLAKE ON PEIVAXB INTEENATIONAL LAW. on a similar circumstance for the support of a foreign judgment would have led to the too inconvenient result of ignoring the/oram rei in every case of the defendant's ahsence. It may, I believe, be said that the forum rei is always allowed in England to be a valid foundation for a foreign judgment :(<) and in one case that maxim has been pushed to an extreme length, a Scotch judgment being enforced here in personam against a native Scotchman who was in India, and appears to have been even domiciled there, when it was rendered. (m) The professed ground was allegiance, but, after the transference of his domicile, it is difficult to see how that, even if otherwise a proper basis for jurisdiction, sub- jected the defendant more to the Scotch courts than to the British courts in India. r^RfiST *381. It is much less clear in what cases we admit a foreign L J fornm speciale obligationis, for, in accordance with the tendency of our own courts to assert juj-isdiction on the mere ground of the de- fendant's casual presence, or actual notice of our process,(.r) the main effort in the cases has generally been to ascertain whether the defendant had, or but for his own fault might have had, such notice of the foreign proceedings as to enable him to be heard in them.(!/) Hence, when the defendant was actually present, there is no hesitation in admitting the competence : but difficult discussions have arisen when he was absent. In the latter case, on general principles, the jurisdiction is only founded, as we saw in Art. 109, on the defendant's possession of property within the territory ; and the simple rule would be, when that condition is sa- tisfied, to respect the title gained to any property by the plaintiff in the attachment suit, at the same time admitting the payment as a discharge of and protection to the garnishee, but not even then to enforce the judgment in personam for the balance not liquidated by the attachment, because the locus contractus, without either domicile or presence, does not found a purely personal jurisdiction. (z) The cases however do not answer to this rule, as might be expected from the fact that they often arise on the judgments of colonial and other courts, which, their law being modelled on the English, themselves base their competence in these attachment suits on the legal presumption that notice is conveyed by the artificial citations used, to which it makes no difference whether the pro- r* namely her Scotch ones :(§) and it *is difl&cult to believe L -I that their opinion will not prevail, if ever a writ of habeas corpus should be sued out to set free a foreign child, being in England under the care of its guardian or his agent. 403. There are kinds of status which we could not recognize here, even were it certain that we recognized foreign status generally, because they are either, as slavery and disability for heresy, condemned in principle by our legislation, or, as judicial infamy and excommunication, their re- cognition would militate against the rule, well fixed in England, that no effect is ever given to foreign penal laws, otherwise than in pursuance of a treaty. (r) There are also others as interdiction for prodigality, and the incapacities relating to trade and exchange mentioned in Art. 348, (l) Lord Cottenham, in Johnstone v. Beattie, 10 CI. & F. 114. This is equiva- lent to recognizing the foreign status, for the foieign pairia poiesias would not on the continent be recognized beyond the extent allowed by domestic law. The question whether the constitution of the patria poiestas demands conception, or only birth, in wedlock, is to be judged by the law of the place where the father was domiciled at the time of the child's birth : Savigny, v. 8, p. .^38. (m) If indeed it can be understood what appointment by the will of one domi- ciled abroad could be interpreted as being pursuant to English law. {n) 1 Phil. 17; 10 CI. & F. 42. (o) After the father's death, ihere being guardians, the mother could not change the child's domicile, at least against their consent. (p) 10 CI. & F. 87, 112-119, 148. (y) 10 CI. & V. 94-97, 130-132. (r) Lord Loughborough, in Folliott v. Ogden, 1 H. Bl. 135 ; Justice BuUer, in Ogden V. Folliott, 3 T. R. 733, 734. The same doctrine is established in the United States; Story, ss. 104, 621 : and Martens denies the extraterritorial opera- tion of judicial infamy. But Hertius says, in uno loco infamis ubique infamis habetur. STATUS. 239 which, in the case of a transaction having its seat here, we should ignore, as we do foreign determinations of those kinds of status which are known to our law. It becomes however, as to some of these, a question what would be the effect of ignoring a status which is, in form, attributive, and ntft privative, of capacity : as in the case of the limited class of per- sons who in some countries may become parties to bills of exchange. In such a case the real status, or exceptional condition, is that of the ma- jority who do not enjoy the so-called special capacity, for the presump- tion is always in favor of the largest capacity of the adult : and the effect of ignoring the foreign status would be to enable any inhabitant of the foreign country, of full age by English law, to become a party to a bill of exchange here. 404. The validity of a contract made out of England, with regard to the personal capacity of the contractor, will *he referred in our r^oo'i-i courts to the lex loci contractus ; that is, not to its particular pro- L J visions on the capacity of its domiciled subjects, hut in this sense, that, if good where made, the contract will be held good here, and conversely. Hence if an Englishman of twenty-three should contract in Prussia, where the age of majority is twenty-five, his contract will be good here, because the Prussian courts would apply our law on a question of status. Thus too, if a foreign wife may trade at her residence, she may sue here on her contracts made there. (s) 405. In the same manner, where a title to property has accrued abroad as a consequence of foreign status, it will be admitted here on the ground of the lex domicilii as governing universal assignments of movables, without looking back to the status in which it originated. Thus a Scotch curator bonis can sue in England for the personal estate of a Scotch lunatic, (<) and the assignees of an Australian minor, capable of trading and being bankrupted in the colony, have maintained a suit in Ireland for his personalty :(u\ also it has been laid down that the father's usufruct in the English movables of his unemancipated child will depend on the law of his domicile, (x) Hence it will follow that a Prussian of twenty- three cannot obtain payment of personal property belonging to him here, because his guardian alone could make title to it during his minority. 406. In Arts. 90-94, I considered the conflict between the lex situs and the personal law of the claimant, on legitimation *per subse- rrjtqoQ-i quens matrimonium, in the succession to land. We must now L J consider what that personal law is. The mere places of the birth of the child, and of the marriage of its parents, can have no claim to furnish a per- sonal law, the basis of which must always be domicile. (?/) The real con- («) Cosio T. De Bernales, 1 C. & P. 266 ; Ey. & Mo. 102 ; whence also it appears that the English law determines the name in which the action must be brought. (i) Scott T. Bentley, 1 K. & J. 281. (u) Stephfens v. M'Farland, 8 Ir. Bq. 444. (x) Gambier v. Gambier, 7 Sim. 263. The father's domicile for the time being governs the pecuniary relations between him and his child, in case of a change of domicile after its birth : Savigny, v. 8, p. 338. (y) Dalhousie t. M'Douall, 1 CI. & F. 817; 1 Rob., Sc. Ap., 475; Munro v. Munro, 7 CI. & P. 842 ; 1 Rob., Sc. Ap., 492. See The Strathmore Peerage, 6 Paton, 645 ; Rose v. Ross, (al. Munro v. Saunders,) 6 Bl. N. R. 468 ; 4 Wils. & S. 289 ; Shedden v. Patrick, 1 Macq. 535. « 240 WBSTLAKB ON PRIVATE INTBEN ATIONAL LAW. flict is between the father's domiciles at the times of the birth and of the marriage, when they differ. The pretension of the former is refuted by the considerations that, first, if it could legitimate upon the marriage, it would, by doing so, declare the child to belong to its father's new domi- cile, and therefore not to be subject to its law; and secondly, that the child's domicile while still illegitimate, that is, up to the marriage, is not that of its father but of its mother. Hence the status of bastardy is generally referred to the matrimonial domicile. (z) But this has been opposed by Schaffner, on the theory that the father's domicile at the birth gives the child an inchoate right to legitimation, which the former must not be allowed to defeat by choosing a new domicile disadvantage- ous to his child : a theory remarkably weak, since, as Savigny observes in reply to it, the father need not marry at all, and need not acknow- ledge the child if he does, either of which events would be fatal to the supposed inchoate right. A decision has however been made in Eng- land for the father's domicile at the birth, though not for Schiiffner's reasons, (a) r*^SQn *407. The personal status of bastardy will give way in Eng- L J land to the lex situs, as to the inheritance of land from as well as by one legitimated by subsequent marriage :(6) and neither this de- cision nor that of Birtwhistle v.. Vardill is affected by the st. 21 & 22 Vict. c. 93, which establishes an English declaration of legitimacy, and of the validity of marriages. That declaration is to bind all persons, for all purposes — to the extent, of course, of the legitimacy, or validity of marriage, declared by it: but the act stops short of pronouncing what was denied in Birtwhistle v. Vardill, that legitimacy is sufficient for an English heir, without the farther condition of birth after marriage. (c) [*390] ^CHAPTER XIV. PROCEDURE. 408. Aut quceris, says Bartolus, de his quae pertinent ad litis ordina- tionem, et inspicitur locus judicii :(aa\ nor has this been ever questioned in theory, though doubts occur on some of the practical applications. It would be impossible to import into any court a new system of procedure for every case in which foreign things or acts might be involved : there would exist neither the machinery nor the minute and curious learning necessary for it. Nor is there any reason why it should be desired to (z) Savigny, v. 8, p. 339 : opinions of the Scotch judges in Munro v, Munro, 1 Rob., So. Ap., 504, 517. (a) Re Wright's trust, 2 K. & J. 595. From Art. 31 T, above, it will be seen that Savigny would have naade the same decision as to the persons intended by the bequest in this case, though not as to the general bastardy of the claimant. (b) Be Don's estate, 4 Drew. 194. (c) See above. Arts. 90-93. (ffio) See above, Art. 166. PROCBDUEB. 241 do SO. The principle, be it comity or justice, of enforcing rights which have accrued abroad, can be carried no higher than to place them on a level with domestic rights, entitling to the same remedies and subject to the same rules of procedure : and if we examine the matter fundamen- tally, the laws of civil process are not like those which originated the rights, commands addressed to the parties by their then permanent or tem- porary sovereign, but they are commands addressed to the judge at the time of the suit and by his own sovereign, as the conditions under which his justice is to be administered. It merely remains to mention the chief applications of this rule on which dispute has arisen. 409. The question of the name in which a suit must be brought, so far as it can be separated from that of the title sued on, must be decided by the lex fori.H)) There is *often much difficulty in effecting this i-Aonn separation, on which I may refer to the places where the several L J titles have been treated of.(c") 410. The rank or privilege of any title, as whether it be a specialty, depends on the lex fori. This we have seen exemplified in the case of foreign judgments, which form here titles by simple contract only : and a bill of exchange, drawn where a peculiar process exists for those con- tracts, must be subject to the ordinary process where no such peculiarity exists, and conversely will be entitled to the peculiar remedy of the lex fori, though such do not exist in the place of drawing.W) 411. Arrest of the body, and the writ ne exeat regno, depend on the lex fori, though, from a confusion between arrest of the body and per- sonal liability, they were formerly held in England to depend on the lex loci contractus. (e) The admissibility of set-off or compensation belongs to the remedy, and depends on the lex fori ;(f\ but not the answers to the contract itself, for they concern its validity.^^r) Priorities between creditors depend on the lex fori, but liens on the law of property; so that no property can be distributed in any bankruptcy or administration, ac- cording to the priorities allowed in the forum, till it has been first cleared of all charges affecting it.(A) Statutes of Limitation, as to obligations, I have discussed in Arts. 250-252. In property, prescription concerns the ownership, which depends on the lex situs, unless for movables *the law of the owner's domicile may claim to be heard ;(t) but p^qno-i the situs is the forum. The time for appealing depends clearly L -I on the lex fori. {lc\ 412. The admission and force of any particular kind of evidence de- pends on the lex fori,{Pj a rule however which there is the utmost diffi- culty in applying, from the uncertainty of the true limits between ques- tions of evidence and the substantial questions in the cause. The doubts (6) Story, ss. 565, 566; Wolff v. Oxholm, 6 M. & S. 92, 99 ; Jeffery T. M'Tag- gart, 6 M. & S. 126. (c) See particularly Arts. 241, 242, 278, 297, 369. [d) Savigny, v. 8, p 161. (e) Imlay v. EUefsen, 2 East, 453, 455; De la Vega v. Vianna, 1 B. & Ad. 284; Brettilot v. Sandos, 4 So. 201; OTerruIing Melan v. Fltzjames, 1 Bos. & Pul. 138; Talleyrand v. Boulanger, 3 Ves. jun. 447 ; Flack v. Holm, 1 J. & W. 405, 917. (/) Story, s. 575. {g) Above, Art. 229. (A) Above, Arts. 272, 277, 307. {%) See Savigny's opinion, cited in Art. 269. Uz) Lopez T. Burslem, 4 Mo. P. 0. 300. \V) Bain v. Whitehaven and Furness Junction Railway Company, 3 H. of L. 1 February, 1859. — 16 242 WBSTLAKB ON PRIVATE INTERNATIONAL LAW. which arise on contracts I have considered in Arts. 172 and 177. In the title to property, the effort must be to distinguish between the foreign conveyance, the efficacy of which must depend on its proper law, whether lex situs, lex domicilii testatoris, or any other, and the proof of that con- veyance tendered in the suit. Thus, if an enrolled and recorded copy has by the lex situs the same force as the original, such copy is itself a conveyance, and an examined copy of it is receivable here without evi- dence of search for the original, because it is not regarded as a copy of a copy, but as being made from a duplicate original. (m) Yet it has been said that where the title to personalty depends on a foreign will, although the court must, upon the facts and documents before it, interpret the testator's intention as, upon the same facts and documents, it would be interpreted in his domicile, yet that it must follow its own rules of evi- dence as to what facts and documents it shall admit : whence it would result that it may come to a different conclusion as to the destination of the property from that which the forum domicilii would arrive at.(m) r^QQQi -^ witness is not ^protected from disclosing what may expose him L -I to criminal prosecution in a foreign country, because the judge cannot know what may be penal there.(o) 413. The proof of foreign laws gives rise to important questions, and the lex fori governs as to the method of it, as for instance whether a written code, or the certificate of a public officer, shall be received. The ' matter stands in England thus. Foreign laws, not being within the cog- nizance of the court, must be proved as facts, and if they are not alleged and proved, judgment will pass according to the law of England. (j^) This will be so, even if the plaintiff's right is founded on a foreign law, though then it might be argued that, if he does not prove it, the law of England cannot help out his claim ■Jq'\ so that, in effect, there is a pre- sumption that the foreign law agrees with the English till its difference is proved. If there be a jury, they must judge of the proof of such dif- ference, because the foreign law is merely a fact in the cause : the judge confines himself to instructing them how far the law in question is the right one to be applied. Being a fact, the foreign law must be proved afresh in every cause in which it is alleged :(r) indeed it would be highly unsafe to refer to its proof in some preceding English case, for it may have been changed in the interval. And all the above is true even of the Scotch law when in point here, except in the House of Lords : that court, in an appeal from either country, will take notice of the law of the other, and not be bound by the evidence given of such law in the court beneath. (s) (m) Tulloch v. Hartley, 1 Y. & C. C. C. 114. (n) Lord Brougham, in Yates v. Thomson, 3 CI. k P. 544, 585-592. See above, Art. 331. (o) King of Two Sicilies v. Willcox, 1 Sim. N. S. 301, 329. (p) Smith V. Gould, 4 Mo. P. 0. 21. As to the mode of pleading a foreign law, see M'Leod v. Schultze, 1 Dow. & L. 614; Benham v. Mornington, 4 Dow. & L. 213; 3 C. B. 133. (q) Brown v. Gracej', Dow. & Ry., N. P. 41, note. (r) M'Cormiok v. Garnett, 5 D. M. G. 2T8. (s) Douglas V. Craig, 2 Dow. & 01. IVl. PROCBDUEE. 243 *414. The nature of the evidence which must be given of the r,,:OQ^-| foreign law has been the subject of much doubt, nor is it certain L J that the same views are now entertained on it in England and the United States. In the latter country, " a written foreign law may be proved by a copy properly authenticated, which may be verified by an oath, or by an exemplification of a copy under the great seal of a state, or by a copy proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate of an officer properly authorized by law to give the copy, which certificate must be duly proved."(<) And these methods of proof were formerly admitted in England, (m) though much doubt has now been thrown on them by the dicta in the Baron de Bode's case,(a;) in which it was pointed out that if the words of the for- eign law are before the English court, still the latter may err in inter- preting them, from the want of a general acquaintance with the juris- prudence of the country in question ; and I may add that the point to be proved is always what the foreign law was at a certain moment of time, so that if the written law be of an earlier date, it may have been altered during the internal, and if of a later, no similar provision may have existed at the critical instant. Still, the cases in which such proof has been received have not been directly overruled,(y) though it has in the Baron de Bode's *case been established that the most proper p^i-oocT mode of proving a written law is by the parol testimony of ex- L J perts,(z) and that they will not be called on to produce its texts, even when they mention it as the ground of their opinion. Unwritten laws are also proved by the parol testimony of experts, and both in this and the other case, when such persons are examined, it is on their state- ments alone that the court or jury must rely; and though they may read extracts from books, to refresh their memory, or as containing the authen- tic letter of the law, the force of such extracts will be only that which they derive from being incorporated with the parol statement.(a) The expert, if not a practising lawyer of the country whose law is in question, (t) Justice Wayne, ip Ennis v. Smith, 14 Howard, 426,'; adopting^the language of Story, s. 641. («) Laeonv. Higgins, 3 Stark. 118. And see Lord EUenborough's dictum in Picton's case, 30 Howell's State Trials, 491. (x) 8 Q. B. 208, 246. ly) The Sussex Peerage, 11 CI. & F. 85, 134, has been thought to overrule them, (2 Phillips on Evidence, 10th edition, p. 220 :) but in that case the law proved was unwritten. See Lord Campbell's remark on the proof of a written law at p. 114. Lord Denman's account of the decision in the Baron de Bode's case, at p. 116, goes beyond the report in 8 Q. B., from which it appears that the non- admissibility of the foreign text did not arise. It was well remarked by Lord Langdale, in Nelson v. Bridport, that " if the utmost strictness were required in every case" of proving foreign laws, "justice might often have to stand still ; and he was not disposed to say that there might not be cases in which the judge might without impropriety take upon himself to construe the words of a foreign law, and determine their application to the case in question, especially if there should be a variance or want of clearness in the testimony." 8 Beav. 527, 537. (z) If however a written contract incorporate a written foreign law by refer- ence, the text of that law must be produced : Millar v. Heinrick, 4 Camp. 155, as explained in 8 Q. B. 252. (a) The Sussex Peerage, 11 CI. & F. 85, 114. See Cocks v. Purday, 2 0. & K. 269. 244 WBSTLAKB ON PRIVATE INTERNATIONAL LAW. must be "peritus virtute officii, engaged in the performance of public duties, connected with which, and in order to discharge them properly, he is bound to make himself acquainted with that law. That being so, his evidence is of the nature of that of a judge. "(6) 415. As to the proof of foreign judgments and acts of state, see the statutory provision cited at length in Art. 375. A commission was granted by Lord Hardwicke to examine at Paris into the extent of the jurisdiction of a court there.(c) Besides the effect of the judgment in r*qQfii ™'^ *°'-' ^ competent court, in vesting the property in the party L J whose it is pronounced to be, in England and some of the Ame- rican states it is held also conclusive, against persons not parties to it, as to the facts on the proof of which it was founded ; a doctrine chiefly in point when the sentence of a prize court is invoked by marine insurers in order to falsify the warrantry of neutrality. The refinements raised as to the cases in which such a sentence will have that efiect turn on questions of public international law. [b) Ibid., p. 134, overruling Regina v. Dent, 1 C. & K. 97. See Bohtlink T. Schneider, 3 Esp. 58 ; Clegg v. Levy, 3 Camp. 166. (c) Gage V. Stafford, 2 Ves. sen. 556. INDEX. The numbers referred to are those of the articles. ACCEPTANCE, of a bill, a contract of place where payable, 228. if general, at what place payable, 190, 2.S5. ACCOUNT, BOOKS OF, when evi- dence, 172. ACTUM, LOCUS REGIT; AC- TUS, LEX LOCI: as to immovables, 81, 87. contracts, 171, 174. movables, 266. wills, 323. marriage, 338-342. See FoEMS or Instrumekts and Solemnities. ADMINISTRATION ; ADMINIS- TRATORS; EXECUTORS: administration must be granted in situs of respective effects, 291. principal and ancillary, 292, 301, 305. principal administrator, when en- titled to ancillary grant, 292. in United Kingdom, 293, 294. what property passes by each local grant, 295. as to credits, 296, 297. how far debtor protected by payment to local administrator, 298, 299. effect of judgment recovered by local administrator, 300. against local administrator, 303. where administrator is accountable for property received, 302, 304, 311. where representative without benefit of inventory may be sued, 303. remuneration of administrators, 306. order of debts against assets, 307- 310. mode of conducting local adminis- tration of solvent estate, 312. insolvent estate, 313. how and where surplus distributable, 305, 311. ADMIRALTIES, judgments of for- eign, 415. ADVANCES, where repayable, 231. AGENCY, fixed, founds the/bntm rei gestae, 105 (IV), 112, 129. but not sending round an agent to get orders, 1()5 (V). nor does a fixed agency found the forum rei, 129. AGENT, expressly employed by prin- cipal, binds him as though he were personally present, 212, 215, 216. but cannot bind him through an agency created by any law but that of the alleged principal's domicile, 213, 214. ALIEN, English law determines who is, for the empire, but subject to St. 10 & 11 Vict. 0. 83, 25. but rights of depend on the appro- priate law of the case, 25. friend, may sue or be sued in Eng- land, 120. ALLEGIANCE, origin of, 8-10. imposed in England by birth on the soil, 11, 12. and on the wives of subjects, 23. and transmitted through males to children and grandchildren, 13. whether transmitted farther, 14. old French doctrine on, 15. AMBASSADORS retain their domi- cile, 47. their forum, 132-134, 138. ARREST, depends on lexfon, 411. ASSETS. See Administration. ASSIGNMENT OF DEBTS: assignability depends on law of ori- ginal obligation, 241, 242. form and validity of assignment on 246 WESTLAKE ON PRIVATE INTERNATIONAL LAW. ASSIGNMENT OP DEBTS, con- tinued. law of place of assignment, 243, 244. necessity of intimation to debtor, aa against third parties, 277. assignment of illegal claim may be good as against assignor, 245. assignment by administration on death, 244, 296, 297. bankruptcy, 241, 277-281. marriage, 368, 369. ASSIGNMENTS IN TRUST FOR CREDITORS, 288. ATTACHMENT, validity of foreign 381, 382. BALANCES, where due, 231. BANKRUPTCY, Discharge by : if by bankruptcy in forum contractus, universally re- cognized, 253, 254. unless palpably unjust, 258. and except in the United States, as to discharges by insolvent laws of the several states, 254, 255. whether recognized elsewhere, if by bankruptcy in debtor's domicile, not being ybr«m contractus, 256. whether a bankruptcy law is prima facie to be understood as intend- ing to discharge debts not con- tracted under it, 257. Proceedings in: universality of assignees', syndics', or curators' title to sell or re- cover movables, recognized in countries under the Roman law, 277. in the United Kingdom, 278. in Prance, 280. how far recognized in the United States, 281, 282. English doctrines as to effect of English bankruptcy on foreign movables, 279. and as to release of debtor by pay- ment after bankruptcy, 284. assignees', &c., title not held in Eng- land to extend to foreign immov- ables, 67, 283. how that question stands abroad, 68, 277, 280. what funds creditor seeking dividenfl must abandon to assignees, 283. secured creditors must first be paid according to the laws of their se- curities, 287. .priorities between unsecured credi- tors depend on lex fori of bank- ruptcy, 277. priorities when bankrupt traded in two places, 289. bankruptcy of parners, 285, 286. BILLS OP EXCHANGE, form of and stamps on, 180-183. days of grace on, 189. where payable, when accepted gene- rally, 190, 235. ■ acceptor's contract is of the place where payable, 228. drawer's and indorser's contracts, what, 227, 228, 235. form of protest depends on law of place where payable, 225. necessity of pro test, probably on same law, 225, 227. sufficiency of notice of dishonour, probably on law of place of draw- ing or indorsing, 225-227. damages and interest on bills, 235, 236. capacity to become a party to a bill, 348, 403. BOOKS OF ACCOUNT, when evi- dence, 172. CAPACITY OF PERSONS, conti- nental theories on, 70, 71, 143, 146, 400. does not in England depend on domi- cile, 89, 401, 404. with certain exceptions in the case of marriage, 345, 346, 348. CESSIO BONORUM. See Bank- EUPTCT, Proceedings in. CHANCERY, competence of, on per- sonal equity arising out of the acts of the parties, unlimited except by discretion in ordering service abroad, 123-125. and affects foreign lands indirectly, 64-66. practice when some parties are out of the jurisdiction, 126. its general authority to injoiu, 127. injunctions againstforeign suits, 130, 131. practice as to foreign charities, 275. CHARITABLE USES, STATUTE OP, when applicable, 79. CHARITIES, cannot be administered by foreign court, 275. CHOSES IN ACTION, ASSIGN- MENT OP. -See Assignment of Debts. CITIZENSHIP. See National Cha- racter. COLLISION OP SHIPS AT SEA, 158, 276, COLONIES, laws of, 152, 155. INDEX. 247 COMITY OP NATIONS, cannot fur- nish the rules of this science, but may express the motives for re- ceiving them, 144, 145, 160. though the term is weak, for the motives of rules which it is sought to found in juristic principle, 331. between what nations the mutual reception of these rules is gene- rally possible, 156, 197. and where it is generally possible, the stringent character of certain laws may cause exceptions, 196. as exemplified in obligations, 197, 198. and in various incapacities, 348, 397. CONSULS, domicile and forum of, 47, 139. CONTRACTS, special forum of, Ro- man rules for ascertaining, 105, .110. principle of, 106. to what actions it applies, 107. conditions for its use, 109. ' in Germany, 110. anciently not received in Prance, 111. but introduced there, 112, 114. in England, 121, 169. law of, generally : lex loci contrac- tus or solutionis, 163-169, 208. formal requisites of, 171-181. stamps on, 176, 180-182. rights under, classification of, 184, 185. interpretation of, 187-191, 259. legality of, generally, 192-198. as to connection with illegal acts, 199, 200. fiscal laws, 201, 202. usury, 203-207. obligation of, in detail, 208-229. damages on breach of, 230-236. assignment of, 241-245. dissolution of, by fulfilment or satis- faction, 246, 248, 259. new contract, 247, 248. merger, 249, 392. prescription, 250-252. bankruptcy, 253-258. CORPORATIONS, domicile and fo- rum of, 55, 128, 129. powers of, in foreign countries, 224. CRIMINAL LAWS, POREIGN, not recognized, 403. CURATORS, POREIGN. See Guae- DIANS, POREIGN. CURRENCIES ; questions arising from difference of, 88, 188, 330. DAMAGES, generally, 230. as to interest, 204, 206, 230, 231. exchange, 232, 233. commission, 234. on bills of exchange, 235, 236. delicts, 230, 237. DAYS OP GRACE, depend on place where bill is payable, 189. DEBTS, classed as movable property of the creditor, 263. but some are immovable, 76. discharge of by payment to creditor, 246, 248, 259. payment to administrator, 298, 299. new contract, 247, 248. merger, 249. prescription, 250-252. bankruptcy, 253-258. priority between, in administration, 307-310. in bankruptcy, 277, 287, 289. See AssiGKMBST of Debts. DEFENCES TO ACTIONS, depend on what law, 229. DELICTS, special forum of, 108, 114. law of, 237, 240. damages on, 230, 237. at sea, and in other extraterritorial places, 158, 276. DELIVERY, when necessary in sales of chattels, 264-270. DISCHARGES. See Bankruptcy, DiSCHAEGE BT ; CONTRACTS : DbBTS. DISCUSSION, BENEFIT OF, de- pends on what law, 208. DISTRIBUTION. _ See Succession. DIVORCE, international questions on stated, 349. husband's domicile always a forum for, 361, 364. except in the United States, 365. and where nationality is preferred to domicile for this purpose, which however is less proper, 362, 363. when wife's domicile, separate in fact, is a forum for, 365. in Scotland, forum for is independ- ent of domicile, 360, 364. cause of, not tested by law of the marriage, 351-353. though this has been denied in Eng- land, 354-357. nor by any other law than that of the forum, 358, 359. recognized where it would not have been decreed, 350. DOMICILE, is residence, 30. in municipal law, 31. in international law, 28, 29, 32. of origin, 33-35. of minors, 36. 248 WESTLAKB ON PRIVATE INTERNATIONAL LAW. DOMICILE, continued. change of, 37-40. criteria of, 41, 48-53. of refugees, 38. wives, 42. servants, 43. officers, 44-46. ambassadors and consuls, 47, 132, 139. students, 51. prisoners and lunatics, 52. exiles, 53. corporations, 55, 128, 129. plural domiciles, 34, 316. relation of, to national character, 54. trade domicile in war, 39, 40. in bankruptcy, 258, 289. EVIDENCE, lex fori generally go- verns, 412. of contracts, 172, 177. of title to property, 331, 412. EXCHANGE. See Bills of Ex- change ; Damages. EXECUTORS. See Admixistkation. EXTRATERRITORIALITY, 132- 139. FIXTURES, what are, depends on lex FOREIGN LAWS, burden of proof of, 413. how proved, 414. FOREIGN REVENUE LAWS, whe- ther within the pale of comity, 201, 202. the question does not affect the ne- cessity of stamps, 176. FOREIGN RIGHTS, principle of en- forcing, 56, 58. FOREIGN SUIT, plea of, 395. when injunction granted against, 130, 131. bill to secure property pending, 395. FORMS OF INSTRUMENTS AND SOLEMNITIES : of conveyances and wills of immov- ables, 83, 84, 86. when sufficient to put heir to election, 85. interpretation of, 88. contracts, 171-183. assignments of corporeal chattels, 264-270. debts, 273. wills of movables, 324-326. instruments in the nature of wills, 327. marriage, 344. See Actum, Locus Regit. FRAUDS, STATUTE OF, as to land, 84, 98, 99. as to personal contracts and chattels, 172, 178, 179. GARNISHEE, when protected by pay- ment in foreign attachment, .381, 382 GUARDIANS, FOREIGN, how far recognized in England, 402, 405. abroad, 68, 398. HEIR, when put to election by an in- formal will, 85, 330. when by law, 80. HERITABLE BONDS, transmitted by Scotch law, 76. heir who pays them cannot claim relief, 319. when there is a collateral movable security, 77. HYPOTHECATION, extraterritorial validity of, 272. authority for, of master of ship, 214. ILLEGITIMATE CHILDREN, na- tional character of, 18. domicile of, 35. legitimation of, 406, 407. IMMOVABLES, what are, 75-77. exclusive authority of forum situs as to, 61-63, 67, 68. though another forum may reach them indirectly through the ow- ner's person, 63-66. property in, depends on hx situs, 69-74. and in their price when sold, 78. and the incidents to such property, 79, 80. form of transferring, 81-87.'' interpretation of conveyances of, 88. capacity to transfer, 89, 401. succession to, on death, 90. legitimacy of the heirs of, 90-94. effect of marriage on, 95, 369. patna potestas as to, 96. prescription as to, 97. contract of sale of, 98, 99. tracing purchase-money into, 370. INCEST, what is, juris gentium, 340, 346. INDIA, LAWS OF, 153-155. INFANCY. See Status. INJUNCTIONS AGAINST FOR- EIGN SUITS, 130, 131. INSANITY. See Status. INTEREST, Coxvextioxal, limited in the Eng- lish cases to the rate of the place where it is to be paid, 206. which is questionable in principle, 203. INDEX. 249 INTEREST, continued. nor supported by the foreign authori- ties, 205, 207. Judicial, whether to be allowed de- pends on law of place where de- fault is made, 230. and the rate must be of that place, 204-206, 230, 231. on bills of exchange, 236. on delicts, 237. INTERPRETATION of conveyances, 88. contracts, 187-191. wills, 329-331. INTESTACY. See Succession. m TRANSITU, whether domicile of origin is recovered, 40. chattels, sale of, 269, 270. right of stoppage, 272. chattels, at owner's death, 295. JUDGMENTS, FOREIGN, In Personam, different modes of en- forcing, 374. how proved in England, 375. what description of, enforced in Eng- land, 376. whether they must be final, 377. English mode of suing on, 378. objections to, from want of jurisdic- tion, 379-383. error in fact or law, 384-387. natural injustice, 388. fraud of parties, 389. against co inpanies, enforcing against members, 390. on arbitration, and by confession, 391. do not merge original cause of action, 392. for defendant, conclusiveness of, 393, 394. In Rem, 396. JURISDICTION as to immovables, 61-68. on obligations, 100-119. of English courts of common law, 120-122. of the court of chancery, 123-127. exceptions from extraterritoriality, 132-139. as to status, 396-398. LEGACIES, interpretation and pay- ment of, 330. interest on, 321. LEGITIMATION, 406, 407. LIEN, on money arising from sale of land, 78. on money invested in land, 370. on land, prescription as to, 97. on movables, 272. vendor's on sale, 220, 272. LIMITATION, STATUTES OP, as to title to land, 97. chattels, 264, 267, 269. as to obligations, 250-252. LOANS, what interest may be stipu- lated on, 203-207. where repayable, 231. LUNACY. See Status. MARRIAGE, Constitution of, international ques- tions on stated, 333-337. their history, 338-343. solemnities in, 344. consent of parents and guardians to, 345. incapacity from affinity, vows, &c., 346. to what marriages the international rules apply, 347. incapacity from slavery, privilegia, &c., 348. Pecuniary Effects of, on movables, 367-369. on immovables, 369, 370. effect of express marriage contract, 371, 372. succession between consorts on death, 373. MERCHANTS' BOOKS, when evi- dence, 172. MINORITY. See Capacity op Per- sons ; Status. MOVABLES, include credits as well as corporeal chattels, 263. forum for chose in action analogous to situation of thing, 273. lex situs applies in principle to mov- ables, 260. also law of owner's domicile, and when, 263. respective cases for application of these laws, 264. lex domicilii has however been in- discriminately asserted, 261, 262, 265. indifference of mere form in alienat- ing particular chattels : those loci actus commonly followed, 266. lex situs governs substantial requi- sites, as delivery, 265, 267-269. similarly lex fori, as to intimation in assigning debts, 273. and either, as to legality of assign- jnent, 274. when lex situs governs prescription, 269. alienation of chattels at sea, 270. of British ships, 271. 256 WESTLAKE ON PRIVATE INTERNATIONAL LAW. MOVABLES, continued. liens and privileges on movables, 272 NATIONAL CHARACTER, feudal and Roman principles on, 7. of legitimate children, 16, 17. illegitimate children, 18. foundlings, 19. wives, 23. naturalization, 20, 21, 24. loss of former nationality, 22. and of power to transmit it, 24. British nationality, with reference to the colonies, 25. nationality of United States, 26. how cession of territory affects cha- racter of inhabitants, 27. NEGOTIABLE INSTRUMENTS. See Bills of Exchange ; Promis- sory Notes. OBLIGATIONS. See Contracts; Delicts. PARTNERS, mutual rights of, 211. liability of, on each other's contracts, 211, 222, 223. bankruptcy of. 285, 286. PATRIA POTESTAS, 402, 405. PENAL LAWS AND DISQUALI- FICATIONS, FOREIGN, not no- ticed, 403. PERSONAL FORUM, Of Defendant: in Roman law, 102, 103. now generally founded on domicile only, 104. but on nationality also under Code Napoleon, 113. allowed by Roman law for actions in rem, 62. of corporations, 128, 129. Of Plaintiff : under Code Napoleon, 113, 379. PERSONAL LAWS, idea of, 150. of Christians in barbarous countries, 151. of English colonists, 152. in India, 153-155. occasional use of in other cases, 156- 158. PERSONAL PROPERTY. See Mov- ables. PRESCRIPTION. See Limitation, Statutes of. PRIORITIES, in administration on death, 307-310. in bankruptcy, 277, 287, 289. PRIVATE INTERNATIONAL LAW, defined, 1-6. is subject to municipal law, 4. questions of law and jurisdiction in, 56-60. principles of Grotius respecting, 159, 160. Huber, 144, 145. Savigny, 160-163. limits of its applicability, 156. PROCEDURE, depends on lex fori, 170, 408-415. PROMISSORY NOTES, stamps on, 176. where payable, 235. See Bills of Exchange. REAL PROPERTY. See Immov- ables. SET-OFF, depends on lex fori, 411. SOVEREIGNS, FOREIGN, may sue, 135. when they may be sued, 135-137. SPECIALTY, what is, depends on lex fori, 410. STATUS, continental doctrines on in- ternational recognition of, 397- 400. foreign, not recognized in England, 401-403. except as to transactions complete abroad, 404-405. and in some respects as to marriage, 33.3-365, 396. STATUTES, real and personal, 70, 141-143. distinctions of personal, 71, 146, 148. mixed, 143, 147. classification of, was not studied in England, 149. SUBJECTION, TEMPORARY, 118, 119, 168. SUCCESSION ON DEATH, to im- movables, 90, 322. to movables, 314-316. of minor, when guardian has chang- ed his domicile, 318. in personal laws of India, 322. domicile for, can be but one, in in- testacy, 316. in testacy, 325. legitimacy of successors, as to im- movables, 90-94. movables, 317. incidence of charges, between suc- cessors, 76, 319. probate and legacy duties, 320. interest on shares and legacies, 321. TORTS. See Collision at Sea; Delicts. INDEX. 251 WILLS, validity of, continental doc- trines on, 81, 32S. Enslish, as to land, 84-86, chattels, 324. as to putting heir of land to elec- tion, 85, 330. domicile for, can be but one, 325. and does not depend on national character, 325. when domicile is changed after mak- ing, 326,_ 328. validity of instruments in nature of, 327. construction and effect of, as to land, 83, 88. chattels, 329-332. what evidence of testator's meaning is admissible, 331,