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domiciliï or the lex loci ? Now so far the path is easy; all writers on Jurisprudence and International Law, with the exception of Gail and the younger Voet, are agreed that a man's status follows him everywhere. “Les lois personnelles,” says Fælix, who adopts the now untenable , distinction between real statutes and personal statutes; “suivent la personne partout où elle se trouve." Savigny lays down the same rule in more accurate terms: “Everyone is to be judged as to his personal status by the law of his domicile.” In the leading cases of Fenton v. Livingstone and Birtwhistle v. Wardell, we find the same principle approved of and by some of the judges enumerated in the expressive formula : “ Qualitas personam, sicut umbra, sequitur.”
And for the latest exposition of the English law on the subject we may refer again to Lord Justice Brett in Niboyet v. Niboyet, where he says: The limitations, or conditions, or effects of status are different in different countries. As status is imposed by law, the only law which can impose or deprive such a status so as to bind an individual, is the law to which such individual is subject.” And further on, “ Laws which alter the personal relations of individuals to each other, or their relation to the community, can only bind the natural-born subjects of the enacting country, or foreigners who have become domiciled in it; but they may, consistently with principles and with the universal consent of nations, bind both of these." The learned judge then proceeds to test the correctness of the principle by putting the argument in the following shape : A man's right to his status, is a right in rem, that is to say, a right which is available against the whole world. Now, one of the first principles of International Law is that a judgment in rem is treated as binding and valid by the Courts of all countries. Therefore, a judgment determining what the status of an individual is, being a judgment in rem, ought to be treated as binding and valid everywhere. But if the Courts of any
country should assume by a decree to alter the status of a foreigner not domiciled, the decree would not be recognised as binding by the Courts of any country. The logical conclusion is, that the only law which can alter, and therefore decide status, is the law of domicile.
We find then that there is an almost unanimous consensus of opinion in favour of the principle that status must in general be decided by the law of domicil. It is only when we come to apply this principle to the question of capacity to contract, that we meet with contradiction and discord. The question, however, is a most important one, especially in these times, when the law of contract is every day assuming larger dimensions, and the law of status is becoming more and more confined. I have said that status must in general be decided by the law of domicile. It will perhaps be as well, before going any further, to say something about the exceptions to the general rule. Savigny classifies them under two heads : (1.) Laws relating to personal status, which by their anomalous nature lie beyond the limits of community of law subsisting between independent States, are not regarded by foreign Courts—statutes which recognise polygamy, heresy, religious disabilities, civil death, or slavery, are given as instances. (2.) Other cases form an exception, on the ground that the questions involved in them do not refer at all to the capacity to have rights or the capacity to act—the instances given are cases of privilege.
But, as Savigny himself seems to imply, and as it has been pointed out by Austin, privileges do not belong to the law of status at all; they distinguish persons, considered singly, as opposed to status which distinguishes persons as members of a class. We may, therefore, dismiss privileges from our consideration as being mere anomalies, which cannot be recognised by International Law. The first and only real class of exceptions is more important, as an objection has been made to Savigny's theory, on the
ground that the number of exceptions which he allows to the general principle, virtually makes it of no effect. A little consideration of the true nature and province of private International Law, will show us that the exceptions are perfectly logical, and will perhaps furnish us with a clue which may be useful, when we come to consider the far more difficult question of capacity to contract. Private International Law, or Comity, is a collection of positive rules, which civilised nations have tacitly agreed shall be binding upon them in deciding upon the rights and duties of foreigners who come under the jurisdiction of their law courts. It is solely a matter of agreement; there is, therefore, nothing to prevent any nation from refusing to be bound by any of the rules agreed upon by other nations, or from making any arbitrary statutes with regard to its treatment of foreigners. A nation, however, which follows this course will probably be considered as somewhat deficient in enlightment and liberality, though not as being beyond the pale of civilization. Private International Law is, therefore, different from Public International Law, which, though sometimes modified by treaties, is not a matter of agreement, but a matter of right. It is founded on the positive morality common to all civilized nations, and is a branch of what modern writers on Jurisprudence call Natural Law, meaning thereby all law and all morality which is common to all known societies, whether political or natural, and which is, therefore, supposed to be universal or general. A far better name for it is the Divine Law, or the Law of God. Grotius, indeed, and to a still greater extent, Puffendorf and his other followers, made the whole system of Public International Law depend upon this supposed Law of Nature, but the error of this theory has been so clearly pointed out by Austin and Sir H. Maine, that we shall probably hear less of it in the future. Public International Law, says Austin, is a branch of positive morality, and should be
more correctly termed " Positive International Morality." By most Roman jurists it is called " 'Jus feciale," or the Law of Diplomacy ; by Grotius and other moderns, “ Jus belli." Private International Law has quite a different origin. The first germ of it is to be found in the "jus gentium" of the old Roman law—not "jus gentium” in the meaning, which it afterwards acquired, of "jus naturale," but that law common to all the positive systems known to the Romans, which first the Recuperatores and then the Prætor peregrinus applied to the decisions of cases involving the rights of persons who were not Roman citizens. It is certainly true, as stated by Mr. Foote, that Private International Law, in its modern sense, was unknown to the Romans. And, indeed, so long as the universal suzerainty of an Imperial head was admitted in theory, so long as the idea of a Holy Roman Empire, to which the whole civilized world owed allegiance, found a place in the writings of jurists, it was impossible for International Law of any sort to exist. It was not till territorial sovereignty was fully recognised that the labours of Grotius became possible." But still, I think, it must be admitted that the conflict between the laws of different nations bears a strong resemblance to the conflict between the laws of different tribes or classes of a nation, and that the modern idea of the conflict of laws may be traced up to the old Roman one, although the remedy applied to reduce this conflict to harmony may have been a different one. Moreover, if we pursue the historical inquiry, we shall find a similar conflict of laws prevailing between the different tribes which composed the various Gothic, Frank, and Lombard kingdoms, which were founded upon the ruins of Rome. And in France a conflict of laws must constantly have been taking place, owing to the division into the Pays de Droit Écrit and the Pays de Droit Coutumier. If, then, we consider that French jurists—such as Dumoulin, the great
# See " Maine's Ancient Law," ch. iv,
authority on the old Droit Coutumier-constantly appealed to the natural law as the highest source of law, as the remedy for all conflicting rules, and if we compare this with the practice, which grew up among the Prætors, of taking the same natural law for their guiding principle in the decision of cases which involved the rights of aliens, we seem to get some sort of precedent for our guide in the present inquiry. The rules of Private International Law can only be made by tacit agreement, but the principles which should guide nations in making these rules must be founded on positive morality, which, as we saw, ought to take the place of this supposed Natural Law. We thus get a bond of union between Public and Private International Law, namely, that they are both founded on positive morality. Savigny's exceptions are, therefore, perfectly logical; for a code of rules which professes to be guided by the positive morality common to the nations conforming to that code, cannot be expected to take notice of statutes which lie outside that common morality. Savigny's exception might, I think, be put with advantage in the following form: that no nation will recognise a law which is contrary to its own system of positive morality. This will include every case, and will also include the two exceptions mentioned by Savigny in another place, viz., (1.) Laws of a strictly positive imperative nature (Gesetze von streng positiver, zwingender Natur.) (2.) Legal institutions of a foreign State, the existence of which is not recognised at all by ours. The difference between an insti. tution or statute which is contrary to the positive morality of a nation, and an institution or statute which is merely contrary to its positive law, will be seen by one or two instances. Polygamy is clearly contrary to our system of morality; it would be impossible for a member of Parliament to bring in a Bill to introduce polygamy, no discussion on such a subject could be permitted. On the other hand, marriage with a deceased wife's sister is certainly contrary to our positive law, but it is not contrary to our morality.