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being passively the subject of Legal Relations—is to be ascertained
XXVIII. But we must also consider "tbe individual with reference to his acts, and the Legal Relations which accrue therefrom: and then, in order to discover to what positive law these Legal Relations should be subject, we are led beyond the consideration of the particular territory to which, by Origin or Domicil, the individual may be attached.
The positive law of the territory in which the acts of the individual have been done, from which these Legal Relations have accrued, must be considered, and also the positive law of the territory of other individuals with whose Legal Relations his acts have brought him into contact
These Legal Relations may be classified under the two great categories of—
1. Legal Relations of Family;
2. Legal Relations of Things or Property.
XXIX The positive law which should govern these Legal Relations, when they are in contact with divers positive laws, should be the positive law to which they are naturally subject; or, as it is sometimes said, the law of the territory in which the Legal Relation has its seat
XXX Or it may be thus expressed: the individual is connected with positive law in a threefold manner, namely,
1. By his person;
2. By his acts;
3. By his property.
XXXL In the present treatise it is proposed to consider both—
1. What law ought to govern the particular Right or Legal Relation which comes in contact with divers laws; and
2. What law by the consent of States does practically govern such Legal Relation.
The arrangement of the subject will be as follows:—To consider—
First, Origin and Domicil; and, as necessarily connected therewith, the Personal Status of the Individual.
Secondly, the Legal Relations arising from Family—under which head will be included—
1. Marriage and Divorce.
3. Parental authority over
a Persons "j ,__..,
Thirdly, Property—under which head will be included
1. Rights to specific things
2. Rights to compel certain persons to do certain
things or Obligations—of which Contracts are a branch.
3. Rights relating to Succession, whether Testamento
or ab Intestato.
Fourthly, The rules which govern the Form and Manner of Procedure in actions or suits in which the subject of a Foreign State is Plaintiff or Defendant(fr).
Fifthly, Criminal International Law, which concerns the unlawful acts of a subject of a Foreign State.
(6) This is treated of by Faelix under Private International, but by Savigny as a matter of Public International Law, because the State is prosecutor. Vide ante, vol. i. c. xviii., Right of Jurisdiction over Persons. There has been quite recently an essay on this subject, written by the present Home Secretary, Sir George Lewis.
XXXI. The expressions "Origo" (a) and "DomicUium"'(b), have been engrafted into all modern jurisprudence from the Roman Law. Savigny (c), however, justly warns us against the danger of a false application of supposed technical expressions of that law, as connected with these words.
The warning, however, is not needed, or scarcely needed, as to the word domicilium, the Rules of Law respecting which have not been essentially modified by modern usage, and which in practice are correctly applied.
But with respect to the word Origo, the case is different A greater danger of mistake exists as to it; not on account of any obscurity in the Roman decisions upon the subject, but because the modern status of the individual differs essentially from that which he possessed under the Roman Empire. This is a danger of which the practice of modern law scarcely admonishes us.
The word Origo is so easily translated into the words place of birth (lieu de la naissance—Geburtsort), that modern jurists (including among their number those who were acquainted with the true meaning of Origo in the Roman Law) have frequently so rendered it:—" The mere place of birth," Savigny says, "is an accidental circumstance without any
(a) Origin. Uorigine, Herkunft. (6) Domicil. Domicile, Wohntitz.
(c) VIII. s. 350. The following slight sketch is dhiefly taken from his large picture.
"legal influence whatever." The English lawyer, at least (d) is aware that this statement is too broad, inasmuch as the mere accident of birth in English territory is attended with most important legal consequences to the person born therein (e). The French lawyer knows that the individual who is domiciled in France may yet be, in many civil respects, considered as a foreigner. And in Switzerland (/), as Savigny himself afterwards remarks, there is a jus originis springing from birth in a particular commune, and a jus domicilii, from domicil in a commune, the former overruling the latter in the more important Legal Relations.
XXXII. Towards the close of the Republic and during the first centuries of her Empire, Italy, with the exception of Rome, consisted of a variety of urban communities which were called, for the most part, municipii, and colonice. Each of them possessed a kind of constitution of their own,—their own magistrates, their own jurisdiction, and sometimes their own legislation. Every inhabitant of Italy appertained either to Rome or to one of these urban communities.
The provinces, on the contrary, had originally very various constitutions; but had, in the time of the great jurists of the two first Christian centuries, become assimilated with the Italian communities. The general appellation of these urban commuities was civiiates or reipublicce: their domain was designated territorium, an expression which occurs often in the Justinian compilations, and sometimes regio. The vici were rural subdivisions of the civitas. The individual was bound to the urban community in two ways, 1st, by the
(d) Vide post, and see Story, 8. 51—68, for the opinions of Foreign Jurists, which, in s. 81, he says lay down, "that the law of the domicil of origin, or, the law of the actual domicil, is of universal obligation as to the capacity, state, and condition of persons." Very unsatisfactory, it must be admitted.
(e) Vide pott.
(/) lb. 8. 358. It is remarkable that this peculiarity appears to have no connexion with the Roman jurisprudence, vide post.
Eight of Citizenship generally founded on birth (Origo); 2, by the Right of Domicil (domicilium) within the territorium.
XXXIII. There are certain passages in the Roman Law which classify the free inhabitants of the Empire as follows— (g) Gives, (h) Latini, (i) Peregrini, which classification at first sight appears to apply to each class a determinate positive law: but this is not so. The classification did indeed materially affect the capacity of individuals, e.g., the Cives had connubium and commercium—the Latini had commercium only—the Peregrinus had neither: but the classification has no bearing on the consideration as to which entire system of positive law the individual was subject (k).
The tie which bound the individual to an urban community, or, speaking generally, municipality, whether it sprung from origo or domicilium, produced three effects or consequences.
1. It subjected him to a share of the burdens and charges (Munera) of the community.
2. It subjected him to the jurisdiction of the community (forum originis vel domicilii). The plaintiff (actor) was bound to institute his suit in the forum of the defendant (rei) but he might choose the forum originis or the forum domicilii.
3. It fastened upon him the particular law of the community as a personal attribute (lex originis—domicilii).
This last of the three effects or consequences, Savigny (I) points out, as of extreme importance. There is, he says, an intimate connection between all the three effects, but especially
(g) Municipem aut nativitat facit, aut manumissio, aut adoptio.— Dig. 1. I. t. 1—1.
(A) does quidem origo manumissio allectio vel adoptio. Incolas vero . . . domicilium facit.—Cod. 1 x. t 39—7.
(i) Muneris particeps—but the exact primitive meaning of this word is doubtful; it came to be the designation of all who, out of Rome, had rights of citizenship, their connexion with their particular community being generally expressed by the word origo or patria.
(k) Savigny, ib. s. 356.
(0 lb. s. 356.