Encyclopaedia Britannica, 11th Edition, "Inscriptions" to "Ireland, William Henry" / Volume 14, Slice 6

by Various

Even within the geographical limits just mentioned there are certain differences on points of social order, especially on marriage or divorce, which have hitherto prevented a complete agreement being attained in the rules of private international law. But no attempt has ever been made to establish any system of the kind as between Christian communities and Mahommedan or other polygamous ones, or between countries enjoying a Christian standard of civilization and those, of which China may be taken as an example, which, whether polygamous or not, do not inspire the necessary confidence in their judicatures. In Turkey and other Eastern countries (in which designation Japan is no longer included for purposes of law) Christians are placed by treaty under the jurisdiction in civil matters of their respective consuls. When in the courts of Christian countries Eastern persons or circumstances connected with Eastern laws have to be dealt with, the peculiar institutions of those countries are not enforced; and while in other respects the judges may be assisted by some of the rules of private international law, especially such as have for their object to carry into effect the reasonable intentions of parties, yet those rules are not applied as parts of an authoritative system.

Rules for the selection of the territorial law to be applied in the different classes of cases, or for the recognition of foreign legal proceedings, have sometimes been made the subject of international treaties, and have often been enacted by territorial legislatures. England possesses a few such enactments, as in the Bills of Exchange Act 1882, and many other countries possess them to a much larger extent in their codes. Where such enactments exist, or where treaty stipulations have been entered into, and the territorial law makes such stipulations binding on the judges, the courts of law must obey and apply them as they must obey and apply any other part of the law of the land. If, as in England, judicial precedents are held to be binding, so that the law of the land consists in part of judge-made law, a similar result is produced; an English court must follow English precedents on the application of foreign law or the refusal to apply it, to the same extent to which it would be bound to follow them on any other point. So far as our matter remains open for a judge, he has, to assist him towards a just decision, the treaties, written laws and judicial precedents of other countries as examples, and a vast literature which has grown up in all Christian countries. That this apparatus is far from having furnished concordant results is due, not only to the divergences on points of social order referred to, but also to the different bases of the legal systems with which the respective governments and writers have been familiar. The legal systems of different countries have been founded on Roman law, feudal law, English common law and still other bases. The arguments of lawyers are affected by the prepossessions thence arising, and they have consequently failed to arrive by their unaided efforts at so much agreement on the rules of private international law as would have been compatible with the conditions and modes of life and action surrounding them. But the general acceptance of a complete body of rules on private international law is a goal which for other countries than England is well within sight by the road of international treaties concluded under the joint direction of professional and non-professional minds.

The most remarkable steps taken in or towards the conclusion of such treaties are those initiated, to its high credit, by the government of the Netherlands. That government first moved in the matter in 1874, and has succeeded in assembling at the Hague the official representatives of nearly all European powers in conferences held in 1893, 1894, 1900 and 1904. At these conferences rules on many branches of private international law were agreed on for submission to the respective governments, which has led to conventions, one of the 14th of November 1896, three of the 12th of June 1902, and four of the 19th of July 1905, regulating the selection of the laws for determining the validity of marriage and of contracts made on the occasion of marriage, their effects on property and on the status of the wife and children, divorce and judicial separation, the guardianship of minors and of interdicted persons, the validity of testamentary dispositions and the rules of intestate succession, and many points of judicial procedure. These conventions may be found at length in the Revue de droit international et de legislation comparée, t. 28, pp. 574-579; 2e série, t. 4, pp. 485-500; and 2e série, t. 7, pp. 646-678. A draft relating to bankruptcy was also prepared at the conference of 1904, but was intended to serve, not as a general convention, but as the base of separate conventions to be concluded between particular states. The extent to which the continent has become united with regard to private international law appears from the fact that France, Germany, Italy, the Netherlands, Portugal, Rumania and Sweden are parties to all the conventions—that Luxemburg, Russia and Spain are parties to those relating to judicial procedure—and that all the ten except Russia, but with the addition of Austria, Belgium and Switzerland, are parties to those on the validity of marriage, divorce and judicial separation, and the guardianship of minors; while all remain open to adhesion by other powers. It is much to be regretted that the British government has declined all invitations to take part in this great international work. The fact must in part be ascribed to the hindrance which the difference between the English common law and the Roman law places, even for lawyers, in the way of joint action with the continent, and in part to the necessity that the rules laid down in any convention should be enacted for the United Kingdom by parliament, the leaders of which belonging to either party take no interest in any such matters.

Next in importance among combined official efforts should be mentioned the congress of seven South American states at Montevideo in 1888-1889, which on many branches of private international law drew up rules intended for adoption by treaty on that continent.

Nationality: Domicile.—Coming now to the particular rules of private international law which are received in England, or have been most widely received elsewhere, the most obvious cases which present themselves for admitting foreign circumstances to influence the decision of a judge are those in which rights are so connected with the person of an individual that the justice of deciding on them by a law having relation to his person speaks almost for itself. Hence arises the notion of a personal law, which must be that either of the person’s political nationality or of his domicile, these being the only circumstances that for the time being are fixed for the individual, irrespectively of the spot where he may happen to be, and of the transaction in which he may happen to engage. We have seen in the article on Domicile what is the legal meaning of that term, how its existence is ascertained, that in and long after the middle ages it was the usual criterion of the personal law, and that in modern times political nationality has largely replaced it as such criterion on the continent of Europe. Thus as well by the conventions mentioned as by the codes of many states—France, Italy and Germany among the number—the capacity and status of persons is now governed by the law of their political nationality. In Latin America the criterion of the personal law is still generally held to be domicile, which is among the reasons why the South American states prefer to pursue the codification of private international law independently of European conferences and conventions.

The English courts were slow to recognize a personal law at all and as late as Lord Eldon’s time they held that the competency of a person to contract depended on the law of the place where the contract was made. Their decisions have since come into line with the continental decisions so far as to make capacity and status depend on a personal law, but not so far as to make nationality its criterion. Hence in England, and in a minority of European continental countries, of which Denmark is an example, the capacity of a party to enter into a contract, whether it be disputed on the ground of his age, or, in the case of the contract of marriage, on the ground of his consanguinity or affinity with the other party, will be decided by the law of his domicile. Guardians, curators and committees of foreign minors or lunatics, deriving their authority from the law or jurisdiction of the latter’s domicile or nationality, can sue and give receipts for their personal property. A court will not decree the divorce of persons not domiciled within its jurisdiction, and it will recognize foreign divorces if, and only if, they have been decreed by a jurisdiction to which the parties were subject by domicile or nationality. And the legitimation of a child by the subsequent marriage of its parents will be held to depend on the law of its father’s domicile or nationality. But the reference to the place of contract, carried to North America with the rest of the English jurisprudence of that date, still maintains in the courts of the United States a struggle with the doctrine of personal law as governing capacity and status.

Here must be noticed a difficulty which arises about the application of any foreign law to the capacity for contracting. It will be understood by the German provision intended to meet it, namely, that “if a foreigner enters in Germany into a transaction for which he is incapable or has only a restricted capacity, he is to be treated for that transaction as being so far capable as he would be by the German legislation. This, however, does not apply to transactions with regard to rights of family or of succession, or to those disposing of foreign immovable property” (Art. 7 of the statute enacting the code). In a spirit similar to that which dictated the German enactment, the French courts have not generally allowed a Frenchman to suffer from the incapacity, by his personal law, of a foreigner who contracts in France, when the foreigner would have been capable by French law, and the Frenchman was in good faith and without great imprudence ignorant of his incapacity. Lately a disposition has been shown to limit this protection of nationals to the case in which the foreigner has been guilty of fraud. English courts usually hold themselves to be more stringently bound by rules, whether those enacted by parliament or those adopted for themselves; and if they should continue to profess the doctrine that capacity depends on the law of the domicile, it is not probable that they will deem themselves entitled to make exceptions for the protection of persons contracting in England with foreigners not enjoying such capacity. The point furnishes an illustration of the fact that to deal satisfactorily with so complex a subject as private international law requires the assistance of the legislature, which again cannot be given with full utility unless uniform provisions, to be enacted in different countries, are settled by international convention.

Another ground for the application of a personal law is furnished by the cases in which masses of property and rights have to be dealt with collectively, by reason of their being grouped around persons. The principal instances of that kind are when it is necessary to determine the validity and operation of a marriage settlement or contract, or the effect of marriage on the property of the husband and wife in the absence of any express settlement or contract, and when property passes on death, either by a will or by intestate succession.

These matters, at least when the property concerned is movable, are generally referred to the personal law of the husband at the time of the marriage, or to that of the deceased respectively; but about them, besides the question between domicile and nationality, there arises the question whether immovable property is to be included in the mass governed by the personal law, or is to follow the territorial law of its own situation (lex situs). Here we touch the distinction between real and personal statutes which arose in the middle ages, when the local legislation of the free cities was contrasted, under the name of statutes, with the general Roman law. That distinction did not bear the same character at all times, but in the 16th century, under d’Argentré, it acquired its most developed form, absorbing all laws into one or other of the two classes, and giving a vast extension to the real class, for which was claimed exclusive application to immovables situate in the territory of the law. In accordance with this system, the highly feudal character of which was very sympathetic to English jurisprudence, English practice has refused to include English immovables in the mass to be dealt with as a unit on marriage or death. But it refers the validity and operation of a marriage settlement, at least as to movables, and the effect of marriage, in the absence of express contract, on the movable property of the husband and wife, to the law of the husband’s domicile at the time of the marriage, called the matrimonial domicile. And with regard to the succession to movables on death, it adopts the principle of massing them irrespectively of their situation, so far as is permitted by the peculiar system under which the property in movables situate in England does not pass directly to the legatees or next of kin, but to the executors or administrators, who are charged with the duty of paying the debts of the deceased and distributing the beneficial surplus. The validity of a will of movables, otherwise than in respect of form (about which more hereafter), and the rights, whether under a will or under an intestacy, in the beneficial surplus arising from them, are determined in England by the law of the testator’s last domicile. On the points glanced at in this paragraph the decisions in the United States generally agree with those in England, only allowing the pecuniary relations of a married couple, in the absence of express contract, to be varied by a change of domicile, notwithstanding that such change is in the husband’s exclusive power, instead of maintaining them as fixed by the matrimonial domicile. On the continent of Europe partisans of a variation after the marriage are scarcely to be found; but as between the nationality and the domicile of the husband or of the deceased, and on the question whether the mass to be governed either by nationality or domicile, on marriage or on death, includes immovables situate under a different law, the division of opinion, legislation and practice is considerable and intricate.

Lex situs, lex loci actus, lex loci contractus, lex fori.—The law of the territory in which they are situate (lex situs) is generally applied to the property in particular things, whether movable or immovable, so far as they are not included in any mass grouped round a person; in England, therefore, always to immovables. In drawing up documents and conducting ceremonies public functionaries must necessarily follow the law from which they derive their authority, wherefore the law of the place where any public document is entered into, or any public ceremony performed (lex loci actus), is the only one that can be followed in its external form. This maxim applies to the forms of notarial acts, and to that of marriage celebrated with the official concurrence of clergymen, registrars and so forth. And since documents and ceremonies entered into without official concurrence are rarer on the continent of Europe than in England, the inevitableness of the form of the lex actus, when such concurrence is had, has generally led to that form being also held sufficient whenever the affair comes to be inquired into later. Nor in England has the sufficiency of the form of the lex loci actus for the celebration of marriage ever been doubted, but a will made by a notarial act in accordance with that law was not admitted. Disregarding the distinction between external form and internal validity and operation, a will of English land could not take effect unless made in English form (that is, since the Wills Act of 1837, with two witnesses), and a will of personal estate could not be admitted in England to probate unless made in the form of the law of the testator’s last domicile. But now, by Lord Kingsdown’s Act, passed in 1861, there are given for wills of personal property made by British subjects, besides the form of their last domicile, three alternative forms, namely, the form of the place of making the will, that of the testator’s domicile at the time when it was made, and that of the part of the British dominions where he had his domicile of origin—only the first of the three, however, being offered when the will is made in the United Kingdom; and no will is to be revoked or invalidated by a change of the testator’s domicile after making it.