In one or two of these conventions (as in those with Austria and Baden), the violations of military law incurred by emigration, and which still hung over the emigrant on his return after naturalization in the United States, are distinctly specified. These conventions put an end, probably, to all danger of carrying into effect the unwise reprisals authorized by our act of naturalization of 1868, which were intended to protect naturalized citizens of the United States, while visiting their original country. In many countries, a woman on her marriage to a native acquires nationality, and loses it on her marriage to a foreigner. In the laws of some countries, wives and minor children follow, as a thing of course, the status of the head of the family, and the son of a foreign resident born and brought up on the soil has peculiar facilities of naturalization. § 71. Domicil being more a legal than a political term, has had nearly the same, although a somewhat vague defini- Domicil, tion, always and everywhere. A definition of Ro- what? man law is expressed in these terms: "In eo loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit, unde rursus non sit discessurus si nihil avocat, unde quum profectus est peregrinari videtur, quo si rediit peregrinari jam destitit." According to Savigny," it is the place which a man has freely chosen for his durable abode, and thereby also as the centre of his jural relations and of his business." But in the case of a minor, who can exercise no jural choice in the matter, his domicil is held to be that of his father. The domicil, says Vattel, "is the habitation fixed in any place, with the intention of always staying there. A man then does not establish his domicil in any place unless he makes sufficiently known his intention of fixing himself there, either tacitly or by an express declaration. And yet, this declaration is no reason 1 C. J. C., 10, 39. L. 7, De Incolis. 3 Fœlix, i., 54. why, if he afterwards changes his mind, he may not remove to another domicil. In this sense, he who stops, even for a long time, in a place, for the management of his affairs, has only a simple habitation there, but no domicil." (i., § 218.) With the first part of this definition Story justly finds fault: few foreigners have the intention of always staying abroad; few, therefore, could have any domicil. "It would be more correct to say that that place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom." 1 "Two things must concur," says the same eminent jurist, "to constitute domicil, first, residence, and secondly, intention of making it the home of the party," and when once domicil is acquired it is not shaken off by occasional absences for the sake of business or of pleasure, or even by visits to a former domicil or to one's native country. It is often a matter of difficulty to decide where a person has his domicil. Story has laid down a number of practical rules for determining this point, some of the more important of which are the following: (1.) A person who is under the power of another is considered to have the domicil of the principal party, as a child, of the father, a wife, of the husband. (2.) There is a presumption in favor of the native country, when the question lies between that and another domicil, and in favor of the place where one lives or has his family, rather than in favor of his place of business. (3.) Free choice is necessary; hence constrained residence is no domicil, and in case of change a new domicil begins, as soon as choice begins to take effect. (4.) A floating purpose to leave the soil at some future period does not prevent domicil from being acquired, for such a purpose does not amount to a full and fixed intention. According to some authorities a man can have more than one domicil, for example, if he have establishments of equal importance in two places between which he divides his time, -or he may have no domicil at all. This latter position is 2 Savigny, System, viii., § 359. denied by others,1 on the ground that a former domicil must remain until a new one is acquired.2 Whether long residence with a fixed purpose to return at the end of a certain time is enough for the acquisition of domicil may be a question. The Roman law denies this character to students who remain even ten years away from home for the purpose of study,3 on the ground, no doubt, that they never intended to establish themselves in the place of their sojourn. The subject of domicil becomes of great importance when we ask who is an enemy, and who is neutral. This bearing will be considered when we reach the subject of the effects of war upon neutrals. It is of importance, also, in another department of international law, to which, in the order of topics, we are now brought. § 72. Conflict of laws as to a A man may change his domicil from one country to another, and may hold property in both: he may in a third execute a contract to be fulfilled in a fourth: he may particular inherit from relatives in another, and have heirs in person. another still in short, with the increase of commerce and of emigration, in modern times, private jural relations stretch far beyond the bounds of any one territory, where an individual has his domicil. But the laws of these countries and their judicial procedures may differ widely from one another. What law then shall rule in each special case, where diverse laws come into conflict? A simple rule would be to apply the law of the place of the court (lex loci fori, or lex fori alone) to all jural relations coming before it. A nation insisting rigidly on its own sove 1 As by Story, § 47. 2 Domicil is sometimes divided into domicil of birth, that by operation of law, and that of choice. Domicil of origin in modern times is domicil in the place where his parents at his birth were domiciled. Compare Phillimore after Savigny, iv., 59, 2d ed. 3 C. J. C., 10, 39, L. 2, De Incolis. "Nisi decem annis transactis eo loci sedes sibi constituerint." reignty would follow such a rule. But, as Savigny remarks, modern legislation and court-practice aim not to keep up local sovereignty and jurisdiction, but to decide without respect to territorial limits, according to the inner nature and needs of each jural relation. Private in law. § 73. It is the province of private international law to decide which of two conflicting laws of different territories is to be ternational applied in the decision of cases; and for this reason this branch is sometimes called the conflict of laws. It is called private, because it is concerned with the private rights and relations of individuals. It differs from territorial or municipal law, in that it may allow the law of another territory to be the rule of judgment in preference to the law of that where the case is tried. It is international, because, with a certain degree of harmony, Christian states have come to adopt the same principles in judicial decisions, where different municipal laws clash. It is called law, just as public international law is so called; not as imposed by a superior, but as a rule of action freely adopted by the sovereign power of a country, either in consideration of its being so adopted by other countries, or of its essential justice. And this adoption may have taken place through express law giving direction to courts, or through power lodged in courts themselves. The foundation of this department, as of all privileges granted to strangers, is not generally regarded as being justice in the strict sense, but the humanity and comity of nations, or, in other words, the recognition of the brotherhood of men, and the mutual duties thence arising. Justice may close the avenues of commerce, and insist that the most rigid notion of sovereignty be carried out in practice, but good-will grants concessions to aliens, and meanwhile enlightened self-interest discovers that the interests of all are alike promoted. But compare § 20 b. This branch of the law of nations, almost unknown to the Romans and to mediaval jurisprudence, has been slowly grow ternational ing, in the hands especially of the jurists of Holland, France, and Germany, since the middle of the seventeenth Growth of century; but, although it has made great advances private inwithin the last age, it is still incomplete. "In this law. doctrine," says Savigny, writing in 1849, "and especially in the first half of it [which treats of collisions in place, as the second part, according to the division of this eminent jurist, treats of collisions in time], hitherto the opinions of writers and the decisions of courts run confusedly across one another; the Germans, French, English, and Americans often stand on entirely opposite sides. All, however, unite in a common lively interest in the questions which here arise, in the endeavor after approximation, removal of differences, and agreement, more than in any other part of the science of law. One can say that this branch of science has already become a common property of civilized nations, not through possession already gained of fixed, universally acknowledged principles, but through a community in scientific inquiries which reaches after such possession. A vivid picture of this unripe but hopeful condition is furnished by the excellent work of Story, which is also in a high degree useful to every investigator, as a rich collection of materials." 1 - The details of private international law have no direct relation to international law as a code between nations; and in fact two nations might observe all the main obligations of states towards each other, although they should apply the lex fori or domestic law to all classes of persons alike within the jurisdiction of the courts. But private international law, at first applied in the spirit of comity, has become a large and important branch of law, which is tending, more than any other, towards a common acceptance of the same principles of justice, towards brotherhood of nations under the same rules of right. For if two kinds of law, differing in minor points, are applied, in the same country, in the case of persons belonging to different nationalities, judges and lawyers cannot 1 For a classification of the schools or theories of writers on private international law see Von Mohl, Gesch. d. Staatsw., i., 441. |