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BiMiiy^

^^ I

KFE ^S'OgCB)

jt>Ol

m ]p<.,

©arbarlj College librarg*

FROM THE RBqiTKST OF

CHARLES SUMNER, LL.D., OF BOSTON.

(Class of 1830.)

** For books relating to Politics and Fine Arts."

:i^.oyyt./rfo.

1%

^

INTERNATIONAL LAW.

VOL. IV.

PRIMED BY

Srom8WOUD£ and CU., NEW-tiTlUUCl' .->gUAKB

LOKDOX

COMMENTARIES

UPON

INTEKNATIONAL LAW.

PRIVATE INTERNATIONAL LAW

OB

COMITY.

^ ay THE LATB ,

Sm ROBEBT PHTTTTMOBE, BAKT., D.CX.

^' - A

MSMBEB OF HEB 1IAJE8TY*B MOST HONOTTBABLB PRIVT COUVCIL,

AND JUDOS OF THE HIGH GODBT OF ADMIBALTY,

KvpccK 6 e«o« v^y.'— AEYIT. KA'. jk/3'.

* Qa! aatem civium rationem dictmt habendam, extirmorum negani, 11 diriznunt conunanem human! generis Bocietatem.*— Cickbo, De OJkUt^ iii. 6.

' Plaiaante justice qu'ime rivltee ou one moutagne borne I '— Pascal, Fietu^es, Part i. art. vi. s. 8.

VOL. IV.

€I)irt> €bitiott

BY THE AUTHOR'S SON

SIR WALTER G. F. PHILLIMORE, Bart., D.CL.

OF AIX aomji COLLEGE, OXVOBD, AKD THE MIDDIJi TEHrLB, RABBIBIBB-AT-LAW ;

AND

REGINALD JAMES MURE, M.A.

OF CH. CH. OXFORD, AKD LDfCOLN'B DTN, BAB&IBTBa-AT-LAW.

0 LONDON : BUTTEEWOETHS, 7 FLEET STEEET,

Ifant ;gnblisbtrs to t^t ^lum's gtost tfutUent IRajests ;

HODGES, FIGGIS, & CO., GRAFTON STREET, DUBLIN.

1889.

The right of tratutation it rtserved.

PRINTED BT

SrO'msWtHJDK and CU., NEW-«Tli£jn- .-.QU'AUE

LONDON

"" COMMENTAEIES

UPON

INTERNATIONAL LAW.

PRIVATE INTERNATIONAL LAW

OB

COMITY.

jf ^Y THB IiATE

SIE KOBEfiT PHILLIMOEE, BAET., D.CX.

MSMBEB OF HER 1LAJESTT*B MOST H0N0T7BABLE PRIVT OOUKCIL, AMD JtrDOE OF THE HIGH COUBT OF ADIQBALTT,

*AKxaM»4rK IM. vfLiy i<mu irpo<niAvTw mu rm iyyt^pUft on iyv ctut Kvpc<K i ©€•« iM«.'.'-AEYIT. KA'.JfiT. T ta i-t. 7 •#*

*Qai autem ctPtttm raUonem dicont habendam, extemorum negaut, ii dirimnnt oommtinem hnmani generis societatem/— Cicbbo, De OJjMU, iii. 6.

'Plauante jasfcice qa*ane riviere <m one montagne borne r—PA8GA.L, Prnaies, Part L art. vi. 8. 8.

VOL. IV.

€I)irt> €tiitiott

BY THE ATTTHOR'S SON

SIR WALTER G. F. PHILLIMORE, Baet., D.CL.

OF AIX flOULS COLLBOB, 03CV0BD, AND THB MIDDLB TBMPLB, BABBIBIBB-AT-LAW ;

AKD

REGINALD JAMES MURE, M.A.

OF CH. CH. OXFORD, AlfD LDfOOLN*8 Dry, BABRIBTBR-AT-LAW.

0 LONDON : BUTTEEWOKTHS, 7 FLEET STEEET,

Caai ipoblisbers 10 tbr ^nttn't Jplost (txctlitnt ^nJitBiri;

HODGES, FIGGIS, & CO., GRAFTON STREET. DUBLIN.

1889.

Tht right of Iratulation it rtterved.

^^y^ KP£ 5? 0.6 (3)

JAN 2 18yi.-

Z'

PEEFACE

THE THIED EDITION.

It was stated in a prefatory note to the third edition of the third volume of these Commentaries, that the author, Sir Robert PhiUimore, died while that volume was passing through the press.

For the third edition of this fourth and last volume he had collected some materials, but had not made other provision.

In these circumstances we have prepared the present edition of the fourth volume ; and it only remains to explain to the reader what has been done, what part of this edition has the weight of the author's authority, and what part rests upon the editors alone.

Our additions to the original work are enclosed in square brackets. They consist either of new matter, such as new laws, treaties, or judicial decisions ; or of additional illustrations from the foreign codes ; or of certain corrections. These the change of time or circumstance, and the alteration of the English judicial

VI JUS GENTIUM PRIVATE INTERNATIONAL LAW.

system and procedure under the Judicature Acts, and of substantive law with regard to married women, bills of exchange, and some other subjects, have rendered necessary.

Besides this addition of new matter, we have undertaken the verification of the many quotations and references which are to be found in the former editions. All have been revised and corrected after careful comparison with the original authorities.

We have not thought it necessary to mark with brackets either the corrections which we have been thus led to make, or some occasional emendations of clerical or press errors in the body of the book. In all other respects the original text remains unaltered ; and any passage not enclosed in brackets is the work of the author.

It has been our study to make the book thoroughly accurate and full ; and we believe that the new matter which we have introduced will make the book com- plete down to the date of the present publication.

WALTER G. F. PHILLIMORE. REGINALD J. MURE, August, 1889.

PEEFACE

THE PIEST EDITION.

I. I HAVE endeavoured, in the publication of this last volume of my Commentaries upon International Law, fully to redeem the pledge given in the first chapter of the first volume (a).

Professional avocations have interrupted and de- layed till now the complete execution of my original design.

The former volumes, in accordance with the plan of that design, treated of the relations, and the laws which govern the relations, between independent States, or, in other words, they were occupied with the consideration of Jils inter Gentes^ or Public Inter- national Law.

This volume is devoted to the consideration of Jus Gentium Private International Law^ or Comity ; that is, strictly speaking, the law which ought to

(a) Vol. i. § xTi.

Vlll JUS GENTIUM PRIVATE INTERNATIONAL LAW.

govern the legal relations of individuals not being the subjects of the State which administers the law. Practically speaking, however, it embraces also the legal relations of persons domiciled, or, in some cases, only resident, abroad ; and rights acquired abroad, or existing in objects situate abroad.

This subject has been treated of, till lately, under the title of the Conflict of Laics a title which I think has been justly censured as expressive of a limited and unsound view of this important portion of jurisprudence ; but under which title so able a treatise has been written by Story, substantially upon Private International Law, as perhaps to render some apology necessary on the part of any subsequent writer who publishes a treatise on the subject, even on the assumption that he adopts a sounder theory and a more correct title.

My apology, if one be needed, is, that the treat- ment of this subject was necessary to the completion of the plan upon which my Commentaries upon International Law were written.

11. The end of all justice, wheresoever adminis- tered, is correctly stated by the Roman lawyers, siaim cuique tribuei^e to give to each person his own, his due, his right, his jus^ be he subject or foreigner.

The inquiry. What is the jus of an individual ? shows that it must be attached to one of these predicaments : 1, to a person ; 2, to tangible or corporeal property {rei) ; 3, to incorporeal rights.

The nahire of the predicament must be examined

PEEPACE TO THE PIEST EDITION. IX

into as a fact before a sentence of what is just can be passed respecting it.

As the fact of relation is ascertained with greater accuracy, as the nature of it is considered with deeper wisdom, the juster will be the sentence pronounced upon it. The more cultivjited the mind of the in- dividual, the more accurate will be his judgments as to w^hat is just ; the more cultivated the mind of a people, the deeper will be their insight into the true nature of legal (6) relations, and the better will be their general definitions of what is just, or, in other words, their laws.

The variety of definitions of what is just, or the variety of laws which prevail in different States, arises in great measure from the different degrees of this culture in diflferent States.

The general opinion of what is just, strengthened by custom and positive enactments, becomes the jas civile of a State.

But when many States agree, as all civilized States do, in their opinions of what is just with reference to many legal relations, the jas civile becomes to a great extent identical with ^jas gentium (c).

Thus, the Roman Law recognized two classes of obligations those ^wm civilis, and those juris gentium^

(b) Perhaps jural would have been a better word. I have been deterred from using it by a dislike to introduce a new word without the sanction of any accredited English authority. (I have in this edition (ed. ii.) adopted the word JwraL)

(c) Vide infrdj § dxcvi.

X JUS GENTIUM PRIVATE INTERNATIONAL LAW.

and under the latter head ranked almost all co7i' tracts (d).

These permanent and invariable relations, laid in the necessities and nature of man, may be modified, but cannot be annihilated, by positive law, when the intercourse of the subjects of different States brings these relations at different periods of time within the scope of different jurisdictions. A harmony rather than a conflict of laws is, therefore, to be presumed among civilised States, with respect to the adminis- tration of justice upon the most important interests of mankind.

But where the municipal laws of States differ, the ends of justice require that they should agree in the adoption of the law which ought, from the nature and reason of the thing, to govern the jtcs of a foreigner, whether they agree that it shall be the law of his own or of another State.

This practical harmony in the administration of justice ought to be the object of the community of civilized States.

It is a triumph of barbarity when a municipal law is applied to a foreign legal relation or right, instead

(d) '* Ex hoc jure gentium omnes pene contractus introducti sunt,

ut emtio, venditio, locatio, conductio et alii innu-

merabiles." Inst. lib. i. t. ii. 2. Vide infrdj § dxcvi.

''Sed hsdo quidem yerborum obligatio Dari spondee? Spondeo, propria civium Bomanorum est ; ceterm vero juris gentium sunty itaque inter omnes homines^ sive cives Rmnanos sive peregriiwsy vcdeTvt" Gaius, iii. 93.

PKEPACB TO THE FIRST EDITION. XI

of the law which, from the nature and reason of the thing, ought to govern it. It is a false and unjust theory, that when States are independent there must be, or ought to be, a conflict of laws, though this may be in certain instances inevitable.

A ^ once acquired under the dominion of the law of one State ought not to be invaUdated by the accident, that the acquirer afterwards brings that jus j so to speak, physically, under the dominion of the law of another State. Reason and the interests of society require that its vahdity should, as a general rule, be equally recognized everywhere : " Ex quo " liquet," Huber says, " banc rem non ex simplici " jure civili, sed ea? commodis et tacito popvlorum. con- ** s€7isu^ esse petendam : quia sicut leges alterius " populi apud alium directe valere non possunt : ita "commerciis et usui gentium promiscuo nihil foret " magis incommodum, quam si res jure certi loci " validsB, mox alibi diversitate juris infirmaren- "tur" {e).

A difficulty does, indeed, sometimes arise from considerations of public policy, which prevent the application of the true abstract rule of law to th^jus of the private individual. There are cases of excep- tion which it is both morally and legally competent to each State to specify for itself, and which there- fore mark the discrimination between Right and

(e) Trcdect, U. lib. i. tit. iii.

xii JUS GENTIUM PEIVATE INTERNATIONAL LAW.

Comity ; between Public and Private International Law (/).

III. Let me add a word or two as to my predeces- sors (g) in the cultivation of this branch of Jurispru- dence.

The "first labourers were naturally those jurists who lived in the States composed of different pro- vinces, partly governed by the Roman Law, partly by indigenous customary laws. D' Argentre, in treat- ing of the customs of Brittany, and Buryundus^ in treating of the customs of Flanders, discussed with care and perspicuity portions of the subject, and pro- pounded various general rules by which the selection of the proper law ought to be determined, where the rights of the individual appeared to be under the dominion of two different laws.

Pavl and John Voet dealt also with the subject, rather inclining to a severe and rigid view of the inadmissibility of exterritorial laws.

(/) Cicero, in a very remarkable passage, points out the distinction (which is not to be found in the repositories of the Roman Law) ; he is explaining the rationale of jus :

** Juris est omnis ratio nobis explicanda. Quod dividitur in duas partes primas, naturam atque legem. . . . Atque haec communia sunt naturae atque legis : sed propria legis et ea quae scripta sunt, et ea quae sine litteris, aut gentium jurey aut majorum more, retinentur. Scriptorum autem privatum aliud est, publicum aliud : publkum, lex, senatuBconsultum, foedus : privatum, tabulae, pactum, conven- tum, stipulatio. Quae autem scripta non sunt, ea aut consuetudine aut conventis hominum et quasi consensu obtinentur. Atque etinm hoc in primisy ut nostros mores legesque tueamury quodamm^do nutnrali jure praescriptum est.*^ Partit. Orat. s. 37.

(g) Vide infray Note to Chap. I. (in which will be found a list of writers on this subject, brought down to the time of the 2nd edition).

PEBPACE TO THE F1B8T EDITION. XUl

Ha^tius, Chancellor of the University of Giessen, wrote a treatise of considerable repute, De Collmone Legum.

Rodenburgh^ a distinguished jurist of Utrecht, proceeded much further than his predecessors in the scientific development of Private International Law, investigating, with great care and accuracy of thought, the principles which ought to govern the application of Statutes to the questions of property, to the form and the substance of the acts of men, and to their personal capacity. His disquisition was, however, necessarily limited, being subordinate to the question of rights incident to the status of Marriage, the con- sideration of which question was the object of his work.

Huber^ in his " PraBlectiones on the Civil Law," pointed out the magnitude of the subject, and gave a valuable but meagrfe outline of its principles.

Rocco^ in 1837, published a treatise on this subject of great merit, under the title of an " Essay on the " Use and Authority of the Laws of the Two Sicilies, '* considered in their relation to the persons and " territories of Foreign States."

The variety and extent of the Colonies of Great Britain brought before her tribunals at home and abroad, especially during the present century, cases which rendered it necessary to consider upon what principles they ought to decide, whether the rights of parties ought to be governed by the law of the Colony or the law of England ; but no considerable work on

IIV JUS GENTIUM PRIVATE INTERNATIONAL LAW.

the subject appeared before the elaborate and volumi- nous commentaries of Mr. Burge, a work to which succeeding authors upon Private International Law have been much indebted.

The lawyers of the United States of North America were necessarily led, from the same cause as the lawyers of the old Netherlands and of France before the Revolution namely, the existence of various States with various laws in one Commonwealth to the study of this jurisprudence.

The learned essay of Livermore led to the elabo- rate and popular work of Story ^ which has exercised great inlBiuence and obtained a very high authority in this kingdom, as well as in the country of its author.

I must, however, be allowed to remark that even St(yry wrote, the nature of his work being considered, too much in the spirit of an English Common Lawyer, and too little in the spirit of an International Jurist.

Of the work of Foelix^ Story does not appear to have any intimate knowledge ; he makes no reference to Rocco ; and with the essays of Wachter and the last of the eight volumes of Savigny he was neces- sarily unacquainted.

While preparing this volume for the press, I was glad to find that this Treatise of Savigny had at- tracted the attention of Mr. Westlake, whose recent work on Private International Law has taken its place in the legal literature of England.

Since the Commentaries of Donelliis, to whom

PEEFACE TO THE FIRST EDITION. XY

Savigny was deeply indebted, no more philosophical or profound work has appeared than the great work of Savigny on the system of Roman Jurisprudence, in its application to the particular law of his own country, Prussia, and to the general law of the Euro- pean Continent. His eighth volume contains a separate treatise on Private International Law, con- ceived in the same spirit and executed with the same ability as the great work of which it is a part. It has been constantly referred to in this work.

I cannot help expressing a hope that the Treatises of such jurists as Puchta and Savigny^ which have the merits without the defects of German erudition, may one day become familiar to English lawyers.

IV. Something let me say, in conclusion, as to the frequent and full reference made throughout this work to the Jurisprudence of ancient Rome, till lately so little known and so often misunderstood in England.

The advantage to the Jurisprudence of Comity which results from this study is twofold : First, a knowledge of the laws, not only of a most civilized people, but of a people which continually imported and incorporated into their administration of justice to foreigners the rules and principles of foreign law, which the reason of the thing and the nature of the relation rendered applicable, when they manifestly rendered inapplicable the strict civil law of the Roman citizen.

In the Institutes, the Digest, and the Code, we are

XVI JUS GENTIUM PRIVATE INTERNATIONAL LAW.

therefore enabled to study a system of Jurisprudence which avowedly passed over the limits of the positive law of the State in which it sprang up ; a Jurispru- dence intended to be applicable to the world.

Secondly, we study in it a system of Jurispru- dence. Nothing can more advance the culture of Private International Law than the study, not of the letter, but of the spirit, of Roman Jurisprudence, which, because it recognized the duty of applying to jura acquired without its limits, or by others than its own citizens, a law founded upon general principles, has become the basis of the law of Christendom.

The law of England and the United States of North America is not properly called by Story the Common Law in a Treatise on Private International Law.

If there be any Common Law of States upon this subject, it is, for the reasons already given, furnished by the Roman Law.

Iluber justly remarks that, though you may look in vain for rules eo nomine on the Conflict of Laws in the repositories of Roman Jurisprudence, yet you will find rules applicable to the subject : " lieguLce " tameii fundamentales^ secundum quas hujus rei {i.e. " conflict us legum) judicium regi debet, ex ipso jure " Romano videntur esse petendse " (A).

The sculptor and the painter who are worthy of the name study the works of the ancient masters,

Qi) Pmlcct. II. lib. i. tit. iii.

PREFACE TO THE FIBST EDITION. XTll

not as the object of literal and servile copy, but of reverential and careful inquiry into the principles of truth by which these works have been immor- talised.

In like manner, the Jurist ought to study the Roman Law, searching into those principles of truth which, under the guidance of an intimate and prac- tical acquaintance with the nature of legal relations, have rendered it an everlasting monument of the people whose genius brought it forth (a).

(a) [Note by Editors of third edition. There was no separate preface to the second edition.]

VOL. IV.

Addenda et Corrigenda,

Page 9, note (/), lines 14, IB, for " 17 Martin's Amerie. . . . 675 to 678,* read " 5 Martiny (Lmiinana) Hep. New Serie», p. 5o9, and see espe- cially pp. 690-596. The case is given at length in Appendix I."

Page 45, note (0), line 8, for " Johnson v. Sundry Articles if Merchandise,* read ** United States v. The Penelope, 2 Adm. JDeeis. p 438, cited in Johnson v. Sundry Articles ef Merchandise" Line 10, for ** 171 " read «• 173.''

Page 96, note (/), line 2, after "pp. 113, 114 ** add " [It is reported in Patents Scotch Appeals in the House of Lords, vol. i. p. 454, nnder the name of Baynes v. Earl cf Sutherland, See the note by Lord Blchies.]"

Page 267, note (0), line 2, add " Given at length in Appendix I." notes (0), (p), {q\ for " (^Amer.^) " read " (^Louisiana)."

Pages 279, 283, at the end of note Iqq) add " [Four new states, Washington, Montana, North Dakota, South Dakota, have been added to the tUrty- eight above mentioned.

** An Act of Congress has been passed, and has been pronounced by the Supreme Court not to be unconstitutional, which prohibits Chinese labourers from entering any part of the Union.]**

Page 305, line 12, add *' [Appendix II. also contains a note on Belgian marriage law.]"

Page 718, notes {o) and (/), at the end of the notes, add " [This Act has been repealed, and its provisions in substance re-enacted by 52 Yict. c. lO.J*

CONTENTS-

CHAP. T.

Jds Gentium Private International Law. Pp. 1 21.

Distinction between Jus inter Gentes and Jus Gentium. Private Inter- national Law, or Comity; What it is. Consent of States to adopt certain Maxims and Rules of Law respecting Individual Foreigners oommorant within the limits of their Territory ; How such consent manifested. Why and when the State ought to adopt as its own the Law of the Foreigner. Exceptions and Restrictions, Moral, Religious, Political. Instances : Slavery ; Incestuous Marriage. Note on Sources of Private International Law.

CHAP. 11.

Plan of the Work. Pp. 22 24.

How an Individual (jfersfma) and his Personal Rights (ttatus) become sub- ject to the Laws of a particular Territory : (1) Origin and Domicil ; (2) Jura arising from Family; (3) Jura arising from Property; (4) Rules as to Form of Procedure in Actions ; (5) Criminal Inter- national Law.

CHAP. IIL

Origo. Pp. 25—31.

Different effect of, in Roman and Modem Jurisprudence. Savigny's Opinion not entirely correct. English and French Law.

CHAP. IV.

Domicil. Pp. 32—41.

Its effect in subjecting the Individual to a particular Territory a question of Fact and Law. Sketch of its History in Roman and Modem Juris prudence.

a2

XX JUS GENTIUM PRIVATE INTEKNATIONAL LAW. CHAP. IV. A.

Definition of Doxicil. Pp. 42 46.

CHAP. V.

Can a Man have Two Domicils? Pp. 47 53.

Whether a Man can have Two Domicils. Distinction between Domicil and

Allegiance.

CHAP. VI.

Can a Man be without a Domicil? Pp. 54 57.

Whether a Man can be without a Domicil. A Vagabond. Original Domicil easily reverts. Children of unknown Parents ; Where Domiciled.

CHAP. vn.

Different Kinds of Domicil. Pp. 58 60. Domicil of Birth. Domicil by operation of Law.

CHAP. vm.

Necessary Domicil ^Wife. Pp. 61 74. Domicil by operation of Law or Necessary DomiolL The Wife.

CHAP. IX.

Necessary Domicil— Minor. Pp. 75 93.

Necessary Domicil of the Minor : (1) Legitimate; (2) Illegitimate.

CHAP. X.

The Student ^The Lunatic The Servant. Pp. 94 102.

Necessary Domicil of the Student of the Lunatic— of the Servant.

CHAP. XI.

The Public Officer. Pp. 103—148.

Necessary Domicil of Pablic Officer: Military and Naval; the Ambassador; the Consnl ; the Ecclesiastic; the Prisoner; the Exile ; the Emigrant; a Corporation.

CONTENTS. Ml

CHAP. XII.

DoMiGiL OF Choice. Pp. 149 154.

CHAP. xni.

Criteria of Dovicil Place of Orioik. Pp. 155 208.

Oral and Written Declarations. Place of Death; Place of Wife and Family; House of Trade ; Depository of Papers, &c. ; Mansion House ; Descrip- tion in Legal Documents. Political Bights. Real Estate. Length of Time.

CHAP. XIV.

Miscellaneous Points. Pp. 209 228.

(1) Domicil in Factories; (2) Domicil under a Treaty; (3) Domicil in Mahometan Countries ; (4) Domicil in a Country in which Domicil is defined and regulated by a specific Law of that Country. Cases of Englishmen under the French Law ; case of Brenner v. Freema/n,

Notes on this Chapter. Pp. 229 242. Analysis of Cases decided in France upon the Domicil of Foreigners.

CHAP. XV.

Jus Personarum Status. Pp. 243 246.

CHAP. XVI.

Statuta or Statutes. Pp. 247 253.

(1) PeiBonal ; (2) Beal ; (3) Mixed. Opinion of Bartolus ; of Modern Jurists D'Aguesseau, Rocco, Foelix, Savigny.

Notes o^jeffTFCaAPTER. Pp. 254—257. Extract from Bartolus.

T-

CHAP. XVII.

The>£rsonal Statute Status Jus in Persona Positum. ^ Pp. 258-285.

Qf the Continent. Doctrine of England and the United States of America. English Naturalization Act.

\

XXU JUS GENTIUM PEIVATE INTEENATIONAL LAW.

CHAP. xvm.

Marriage. Pp. 286—827.

(!) Form of the Contract; (2) Capacity of the Contractors. Laws of Different States thereupon. Bemarks on Validity of.

CHAP. XIX.

Marriage Effects on Property. Pp. 828 868.

(1) Where Marriage has taken place without Express Contract ; (2) Where fvith Express Contract. Where Property has been acquired (I) Before Marriage; (2) After Marriage. Where the Domicil (1) is the same as when the Marriage was contracted ; (2) where it has been changed subsequent to the Marriage. Construction of Marriage Contracts ; Dower; Jointure.

CHAP. XX.

Miscellaneous Incidents to Marriage. Pp. 854 860.

CHAP. XXL

Divorce Sentence of Foreign Court. Pp. 861 880.

(1) What forum may grant Divorce ; (2) What Law ought the forum to apply ; (3) Ought a State which does not permit Divorce to recognise the Foreign Divorce of Foreigners ? (4) Ought a State which does permit Divorce to recognise a Foreign Divorce between two Foreigners, or between a subject and a Foreigner ? (6) Ought a State which permits Divorce on Certain Groimds to recognise a Foreign Divorce affecting its own Subjects obtained upon other Grounds 7

Note on this Chapter. P. 881. The Roman Law on Divorce.

CHAP. XXTI. >

Foreign Divorce English Law. Pp. 382 3%

Divorce. English Law respecting Foreign Divorce ; ^^ inbassador;

et thoro; (2) a rincuh matrimnnU (before the ^^^e J Emigrant ; c. 86); (3) subsequent to that Statute. |

OONTEDTS. XXIU

CHAP. XXIII.

Paternal Eights. Pp. 398 404.

Paternal Power over— (1) The Person, (2) The Property, of the Legitimate

Child.

CHAP. XXIV. Illsgitimatr Children Policy or States. Pp. 405—415.

CHAP. XXV.

Guardianship. Pp. 416 442.

Foreign Qnardiansbip : (1) Choice or Constitution of Guardian ; (2) Power of, when chosen or constituted (a) over the Peison; (b) over the Property of the Ward.

CHAP. XXVI.

Eights relating to Property. Pp. 443 452. \

Third Division. Bights relating to Property. Distinction between moHlia and immohiUa. Moveable and Immoveable Property. Realty and Personalty. Chattels Real, Chattels Personal, of English Law. French Hens, Latin bona. Application of mobilia iequtmtw pertanam. Story's Opinion.

CHAP. xxvn.

Jura Ingorporalia. Pp. 453 463.

Jura ad rem. Incorporeal Chattels : (1) Patent Rights; (2) Copyrights; Convention of Berne ; (3) Trade Marks ; (4) Industrial Property; Con- vention of Paris.

CHAP. XXVIII.

Acquisition and Alienation of Moveable and Immoveable

Property. Capacity to Acquire or to Alienate,

Pp. 464—476.

Capacity of Foreigners to acquire or to alienate Property. What Law should govern ; lea domieilii lex rei sitce ? Savigny's Opinion.

CHAP. XXIX. Obligations General Remarks upon. Pp. 476 4«1.

XXIV JUS GENTIUM PRIVATE INTERNATIONAL LAW.

CHAP. XXX. Obligation Its Meaning in Homan Law. Pp. 482 486.

Note to Chapter. P. 487. Extract from Dictionary of Eoman and Greek Antiquities.

CHAP. XXXI.

Contractus in Roman Law. Pp. 488 495.

Historical Origin of conventiones. Their division into: (1) Legitlm<t\ (2) Juris Gentium ; (2) Unilateral, Bilateral ; (4) According to the Object of the Contracting Parties ; (5) As to the particular Form of Action. Meaning of reus, eorreus, conventio, jfootum, causa. Sources of obli^^atw.

CHAP. XXXIL

Obligations English Law. Pp. 496—505.

Obligations. English Law considers them under the Category of Contracts. Three Classes of Contracts : Contracts at Common Law ; Contracts under the Statute of Frauds. Admiralty Jurisdiction. French Law. Foreign Codes.

Note to Chapter. P. 506. Extract from Chitty on Contracts.

CHAP. XXXIIL

Obligations Conflict of Laws. Pp. 507 523.

Question examined : (1) As to the Form, (2) As to the Substance, of Obligation. Form of, considered in this Chapter. Doctrine of Roman Law ; of Foreign Codes. Maxim of loovs regit actum ; Error of sup- posing it to be in Roman Law ; Foreign Law as to this Maxim ; English Law.

CHAP. XXXIV.

Obligations Substance Reason of the Thing. Pp. 524 536.

Obligations. Conflict of Laws. As to Substance of Obligation ; What is the true Place or Seat of an Obligation; to what Jurisdiction is it subject. Roman Law ; Provisions of Foreign Codes.

OOKTENTS. XXV

CHAP. XXXV.

Obligations Substavce Division of Subject. Pp, 537 563.

Obligations. Conflict of Laws as to Substance of. Rules on the Subject deducible from: (1) Writings of Jurists; (3) Decisions of English and American Tribunals. Principles of Comity governing the Validity, Nature, and Interpretation of Obligations and Contracts. Roman, English, French, and German Law.

CHAP. XXXVI.

CoNTBAGT Immediate Effects Mctual Accounts Agency Correspondence Interest. Pp. 564 581.

Obligations. Immediate Effects of Obligation or Contract. Question of Agency as to Contracts made Abroad. Ratification; Letters of Attorney; Proxies. Contracts by Correspondence. Savigny's Opinion. Mora ; Loan. Security. Consequences or Effects of Contracts. Re- payment of Advances of Money; Interest. Damages. Conflict of Decisions in Tribunals of North American States.

CHAP. XXXVII.

Third Division Mediate Effects or Accidental Consequences OF Contracts Damages Currency Stort*8 Collateral In- cidents, ARISING BY (1) Operation of Law; (2) Act of the Parties ^Liens, Priority of Liability of Partners. Pp. 582—595.

CHAP. XXXVIIL

The Lex Loci Contractus and the Lex Rei Sit.e, considerkd WITH Reference (1) to the Transfer of Real Property, (2) TO Securities and Liens upon Real Property. Pp. 596 610.

CHAP. XXXIX.

Transfer or Assignment of Obligations: (1) By Act of Obligee; (2) By Operation of Law. Bankruptcy. Priority of Liens and Mortgages Privileold Creditors Partner- ship Liability. Pp. 611 627.

XXVI JUS GENTIUM PRIVATE INTERNATIONAL LAW.

CHAP. XL.

Obligation Discharge Under what Law. Pp. 628 649.

Discharge of : (1) How it becomes discharged ; (2) By what Law the Discharge is governed. Roman, Foreign, English Law. Oessio bono- ram. Bankruptcy. Prescription. Tender; Refusal.

CHAP. XLL

Lex Mercatoria. Pp. 650 682.

General Maritime Law, including Right of Stoppage in Transitu. CJolli- sions at Sea ; Agent of Shipowner ; Roman Law ; Bottomry Bond ; Contract of Master ; Lien on Freight ; General Average ; Stoppage in Transitu.

CHAP. XLU.

Bills of Exchange and Promissory Notes. Pp. 683 697.

Foreign Bills of Exchange; Promissory Notes; English, American, and Continental Law respecting them.

Note to Chapter. Pp. 698—700.

Preface, in Dr. Sautayra's Edition, 1836, to the eighth title of the First Book of the French Commercial Code.

CHAP. XLIH.

Eights relating to Succession. Pp. 701 716.

What Forum has Jurisdiction over the whole question of Succession. By what Law ought the Forum to decide as to (1) the legal capacity of the X^stator ; (2) the form of the testament. Alteration of the English Law ; 24 & 26 Vict. c. 114, and, 24 & 25 Vict. c. 121 ; (3) the disposi- tions contained in it; (4) the construction or interpretation of it. What Law ought to govern the rights of parties in a Succession ab intettatc. Legacy and Succession Duty.

CHAP. XLTV.

Administration of Justice in the case of Foreigners Civil Law : (1) Voluntary Jurisdiction; Notaries; Commissions; Lit-

TERJE KeQUISITORIuE. (2) CONTENTIOUS JURISDICTION : FOREIGNER

Plaintiff, Defendant; Action between Two Foreigners Law of Foreign Statks fxcept France French Law English Law. Pp. 717 734.

CONTENTS. XZVU

CHAP. XLV.

Law GOVKRKraa Procedure and Evidence Lex Fori Docu- mentary Evidence Proof of Foreign Official Acts and of Foreign Law Oral Evidence Ordinatoria et Decisoru. Pp. 735—755.

Case of the HaMey.

CHAP. XLVI.

Foreign Judgments. Pp. 756— 786.

Practice of Comity as to the reception of; Foreign and English Law thereupon. Case of Meuina v. PetroeocohtTio.

Note to Chapter. Pp. 787, 788.

Catalogue of the principsd English decisions since 1830, upon the effect of Foreign Judgments in England.

CHAP. XL VII.

Lex Fori Provisional Measures Interdicta. Pp. 789—793.

Injunctions of English Courts of Equity in favour of Foreigners.

CHAP. XLVIII.

Private Injuries : where to be Redressed. Pp. 794 805.

Criminal International Law. Private Injuries, where to be redressed. Cri- minal prosecution of Subjects for Crimes committed abroad ; of Foreigners for Crimes committed within the Territory. No State executes the Penal Laws of another State. Crimes committed on the High Seas ; Practical impunity accorded to, by the present practice of States. Necessity of Amendment herein.

XXTUl JtTB OEITTIUII— PaiVATE IKTESNATIONAL LAW.

LIST OF PRINCIPAL AUTHORITIES

REFERRED TO IN THIS VOLUME.

Abbott, Treatise of the Law relative to Merchant Ships and Seamen.

Addison's Law of CJontracts.

Ahrens, Philosophie du Droit.

Argentine Republic, Civil Code of the.

Argentraei Comment, ad patrias Britonum leges.

Amould, on Marine Insurance.

Aubrey and Rau, MM., Cours da Droit Civil Fran^ais.

Austrian Civil Code.

B.

Baden, Code of the Grand Duchy of.

Bar, Das Internationale Privat- and Strafrecht. Hannover, 1862.

Barante, Dues de Bouigog^e.

Barbosa, De Officio et Potestate Episcopi.

BarbosBB et Taboris loci communes Jarisprudentiae.

Bartolus, in Codioem.

Bassevi, Annotazioni al Codice Civile Austriaco.

Bavarian Code.

Belgian Civil Code.

Bell's Commentaries on the Laws of Scotland, 7th Edit. 1870.

Principles of the Law of Scotland, 8th Edit. 1885. Bi^op on Marriage and Divorce. Blackstone*s Commentaries.

Blume, System des in Deutschland geltenden Privatrechts. Bluntschli, Das modeme Volkerrecht. Borchardt, Wechsel-Gesetze aller Lander. Berlin, 1871. Bouhier, Les Coutumes du Duch6 de Bourgogne, &c. Boulay Patey, Cours de Droit Commercial Maritime. Paris, 1854. Boullenois, Traits de la personality et de la r§alit6 des Loix, Sec. Brazilian Code. Bright's Husband and Wife. Bright ly's United States Digest.

XiIST OF PSIKOIPAL AX7TH0KITIES. XXlX

British Oonsular Bepoits on the Status of Aliens and Forei^ Companies in the United States. Parliamentary Papers (Commercial). No. 17. A.D. 1887. No. 6. A.D. 1888.

Brooks on Notaries.

Broom, Comment, on Common Law.

Brown, Epitome and Analysis of Savigny's Treatise on Obligations in Boman Law. London, 1872.

Bulge, Commentaries on Foreign and Colonial Laws.

Buignndns.

Byles on Bills of Exchange.

Bynkershoek, De Foro Legatomm.

Qnssstiones Juris privati.

O. GarpEOYios, Processus Juris. Cassiodorus, cited by Miltitz. Casaiegis, Discorsus legales de Commercio. Chitty (junr.), on Contracts (by Russell), lltb Edit. 1881. CScero De OfBciis.

De Legibns.

Pro Balbo. Cochin, (EuTres.

Cockbum (Lord Chief Justice) on Nationality. Coin de Lisle, Comment. Analyt. du Code Civil. Coke on Littleton.

Cole on domicil of Englishmen in France. Collectanea Jnridica. Cooper's Bankruptcy Laws. Corpus Juris Canonid. Corpus Juris Civilis. Cujadus.

D.

D'Agueaseau, (Euvres du Chancelier.

Dallos, Jurisprudence g^n^rale.

Daniell^s Chanceiy l^ractice.

Demangeat, Histoire de la Condition Civile des Strangers en France.

Du Statut Personnel, Revue Pratique de Droit Fran9ais.

Demolombe, Cours de Code Napoleon. Paris, 1865. Denisart, Collection de D6cisions. Desquiron (A. T.), Traits du Domicile et de TAbsence. Devoti, Institutiones Canonicss. Dictionnaire de Droit Canonique. Dirksen's Bfanuale.

Domat, Loiz Civiles dans leiur Ordre Naturel. Donellus, De Jure Civil! Comment. Duranton, Cours du Droit FrauQais. Dutch CivU Code.

Commercial Code.

XXX JUS GENTIUM PRIVATE INTERNATIONAL LAW.

E.

Edwards' Admiralty Jurisdiction.

Emerigon, Trait6 des Assarances et des Contrats k la Grosse.

Endeman, Prof. Dr. Wilhelm, Das Handels- See- und Wechselrecfat.

Farinacius Consiliorum.

Ferguson's Reports of Consistorial Decisions in Scotland.

Ferguson on Marriage and Divorce.

FcElix, Trait6 de Droit International Priv^, 3me Edit. Paris, 1866.

Revue Etrang^re. Fonblanque, Treatise of Equity. Franck, De Bodmeria. Liibeck. 1862. French Civil CJode.

Commercial Code.

Code of Civil Procedure.

Criminal Procedure.

Frisquet, Traits EUmentaire de Droit Remain.

O.

Gain, Praoticarum Observationum Libri II.

Gaillaid (Niclas).

Gazette des Tribunaux de France.

Gellius, Aulus.

German Penal Code.

Gillespie's Translation of Bar's Private and Criminal International Law.

Gothofredus, D., Edition of the Corpus Juris Civilis.

Grotius, De Jure Belli et Pads.

Gunther, Europaisches Ydlkerrecht.

H.

Hargraves' Law Tracts.

Heffter.

Heineccius, Opera Omnia. Geneva, 1744.

Henry, Judgment in Odwin v, Forbes.

Hertius (I. N.), De Collisione Leg^m, &c.

HoltzendorflF, Dr. Frank von, Encyclopadie der Bechtswissenschaft,

Hosack's Conflict of Laws.

Huberus, Prselectiones Juris Romani et Hodierni,

I.

Italian Civil Code.

Commercial Code.

J.

Journal du Droit International PrivS. Paris.

LIST OP PBINCIPAL AUTHORITIES. XXXI

Kent*s Commentaries on American Law. Boston, 1873. Kluber, Enropoisches Yolkerrecht. Koch, Hist, des Tiait^ de Paiz.

Lauterbach (Wolfgang Adamo).

Lawrence, W. H., Disabilities of American Women Married Abroad. New

York. 1871. lAwrence, Gommentaire sur les Elements da Droit International, eta de