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between the two last (m), which are to be regarded but as different sides of one whole— different appearances of the same local or territorial law to which the individual is subject .
The intimate connection between the jurisdiction of, and the particular law derived from, the Community is a principle which extends beyond the mere antiquarian consideration of the Roman Constitution; it lies, in fact, at the root of the existing Private International Law; it furnishes the true solution of the problem, what law shall govern that Legal Relation which comes in contact with the law of divers territories (n)?
XXXIV. The observations in the last section are applicable, it will be remarked, to the tie by which Domicilium, as well as that by which Origo, binds an individual to a State. In truth, the effect of mere Origin or Birth in binding the individual to a particular territory, and subjecting him to the law thereof, appears chiefly in the consideration of Public International Law, and has been treated of in an earlier volume of this work in a chapter upon "The Right of Jurisdiction over Persons" inherent in the government of every independent State (o). Also the collateral question as to the acquisition
(m) See, too, Bynkershoek, De Foro Leg. c . 2; Forum competent, founded by origo et natura. Subjectio duplex, 1 rei, 2, persona.
(n) This appears to me to give fairly, as far as the English language will allow, Suvigny's meaning.
(o) Vol. i. c. xviii. p. 345. "Right of Jurisdiction over Persons." In Shedden v. Patrick, 1 Macqueen's House of Lords Cases, 611, Lord Chancellor Cranworth observes, that in England, independently of Statute Law, and with certain exceptions, every one born abroad is an alien. See also, Mr. Westlake's Private International Law, c. ii.
The English Statutes are 25 Edw. III. stat. 2; 7 Anne, c. v.; 4 Geo. II. c. xxi.; 13 Geo. III. c. xxi.; 7 and 8 Vic. c. lxvi. s. 3.
English Leading Cases.—Bacon's case, Croke's Ch. Reports, 602.
Doe v. Jones, 4 Durnford and East Rep. 308.
Countess de Conway's Case, 2 Knapp's P. C. Rep. 364.
Count de WaWs Representatives Case, 6 Moore's P. V. Reports, 216.
These two last Cases, and Bacon's Case, were before the 7 and 8 Vic. c. lxvi., s. 16, of which makes the foreign wife of an Englishman of a new and the loss of an old national character. The theory of Domicil has in fact, with few, but important exceptions, swallowed up the theory of Origin in all matters of Comity.
The effect of Origin is, however, still seen when the positive law of the State in which a man is born affixes an indelible incapacity upon its subject to do certain acts, and enter into certain obligations. Thus, in Switzerland the jus origin-is of the commune decides in preference to the jus domicilii, both the local positive law and the forum in suits concerning Divorce and Succession. The law of England renders an Englishman incapable of possessing a slave in any State, and certain members of its Royal Family from contracting marriages (p) in any State without certain previous consents. The law of England also applies the law of treason—though this is a matter of Public International Law—with great severity, affixing on all who have been born from parents who are not enemies (q) within its territory an indelible aUegiance, and therefore, an indelible incapacity to bear arms agaiust herself (r). So, with regard to incestuous marriages; under which head it is to be observed that the Law of England at present places marriages with the wife's sister, making, as it does, no difference between relations by consanguinity and by affinity (s).
an Englishwoman; and it has been holden in a criminal case that she cannot refuse this character, but must accept it with its advantages and disadvantages, Maria MnaningU Cane, 2 Carrington and Kirwan's Rep. 887.
(p) 12 George III. c. xi.
Sussex Peerage Case, 11 Clarke and Finnelly, 85.
(q) See this exception, Calvin's Case, 7 Cole, 18 a.
(r) See the celebrated case of JSfneas Macdonald, 18 State Trials, 857. He had not been in Great Britain since his infancy, but he was born there. In 1745 he was taken in arms under a French Commission, and holden guilty of treason.
See too, Drummond's case, 2 Enapp's P. C. Report, 295, 311, 314.
Fitch v. Weber, 6 Hare's Rep. 65.
(s) Story, s. 86; from s. 113 (a) to 119 discusses the question condemning the English Law; though his reasoning at s. 116(a) is strange.—Sed vide post.
This subject is further discussed in a later part of this volume, in which the law relating to Foreign Marriages is discussed.
XXXV. M. Demangeat, in his endeavour to answer the question, What the circumstance is which determines for each individual his personal law, justly observes, that if the domicil of the individual were always and necessarily identical with the territory of the State to which he belonged, it would be enough to say, by way of answer to the question, that the personal law of the individual is the law of the place wherein the individual is domiciled (t).
But it may happen in France that a person may be domiciled in France, and yet not cease to be etranger: for incontestablement cela est possible, M. Demangeat says: nay, he may be even domiciled with the permission of the French government, and yet remain stranger. In this latter case what would be his personal law?
M. Demangeat observes that when the personal law serves to disclose to us the intention of the individual, there is no difficulty in saying that it is the positive law of his domicil (du domicile), not the law of his Origin or State (de la patrie), which is his personal law; thus the French courts have decided that a domiciled foreigner, marrying without a marriage settlement, subjects himself to the com/munauU legale of the Code Napoleon. So, in the succession mobiliere, the personal law of the Domicil is applied. The real difficulty is to ascertain the personal law when a question of status (d'etat ou capacite) arises. And M. Demangeat is, on the whole, of opinion, though, as it would seem with less confidence, that even in this case the personal law is the law of the Domicil,— (both of that de facto and of that under permission of the government (u),—that it was the intention of the compilers of the 13th Article of the Code Napoleon, that the foreigner, so domiciled, should be likened en ce qui concerne le droit prive to the
(<) Revue Pratique De Droit Francais.—T. l,n. 2, p. 65.
(u) "Acquit dan* toute la force du terme."
Frenchman, and if the concluding part of the 13th Article seems to say that the French law is the personal law of the Frenchman, the answer is that the Article contemplated the Frenchman who was resident, but not the Frenchman who was domiciled abroad. These observations, however, anticipate the consideration of the law as to personal status to which, perhaps, they more properly belong.
XXXVI. Questions relating to the effect of the lex originis upon the individual and liis personal status, which may arise between a State and her colonies (x) generally belong to the department of Public rather than International Law; while, upon this question, with the above-mentioned exception, Private International Law refers to the lex domicilii, which is the subject of the following chapter.
(x) Birth in an English colony is at present equivalent to birth in England for all questions of origin as distinct from domicil.— (Donegani v. Donegani, 3 Knapp, P. C. Rep. 63; Re Adam, 1 Moore, P. C. 460.) But as to naturalization in colonies, see 10 & 11 Vic. c. 83. It is possible that the power of self-legislation in the colonies may give rise to serious questions, e.g. the validity of a divorce decreed in England upon parties domiciled in a colony where a divorce is illegal. The English Divorce Court would not, it is true, adjudicate wittingly on such a case, but it might do so unwittingly. Various other instances might be suggested.
XXXVII (a). We have now to consider the question of Domicil, the second of the ties which bind, or of the causes which subject, the individual to the jurisdiction of a particular territory (b).
"Questions of Domicil" (said Lord Chancellor Cottenham) "are frequently attended with great difficulty, and the eircum"stances which give rise to such questions are necessarily very "various; it is of the utmost importance not to depart from "any principles which have been established relative to such "questions, particularly if such principles be adopted not only "by England, but generally by the laws of other countries" (c); and Cochin truly observes, "Les questions de domicile de'"pendent d'un grand nombre de circonstances qu'il faut "rdunir(cZ)."
Domicil is, therefore, principally a question of fact; and though also, in some degree, a question of law, the former
(a) Donelli Comment, de Jure Civili, lxvii. c. ix. "Quis sit in jurisdictione competens judex: seu de foro competenti: sou quod idem valet, ubi quia agere vel conveuiri debeat, ac primum de territorio, et causis cujusque jurisdictione attribute, c. xii." "Ubi subjicatur quisque ex persona su& jurisdiction!, tum quibus de causis: et in his primum de domicilio."
(b) "Jus terrendi—unde territorium dictum volunt."—lb. cxii. 10.
(c) Munro v. Munro, 7 Clarke & Finnelly's Reportt of Caset in the House of Lords, p. 876.
('/) (Euvres, t. 9, p. 124.