PART II.

SITUS OF THE PERSON.

CHAPTER III.

ACTUAL SITUS OF THE PERSON.

$ 17. Importance of Situs in Private International Law. The foundation principle of the Conflict of Laws is SITUS. Every element in every transaction known to the law has a situs somewhere, and the law of that situs will regulate and control the legal effect of that element. Not only is this true of active steps taken towards the completion of a given transaction, but it is equally true of those elements, not consisting of acts of parties, but merely acts of the law, or of passive characteristics, legal qualities, or disqualifications inherent in the parties, independently of their own will or in spite of it. For example, in the case of an executory contract, not only may each active step in the transaction-the making of the contract, the act to be done in consideration thereof, and the performance of it-have a separate situs of its own, but the capacity or disqualification of the parties to enter into the agreement — a mere passive quality - must also have its situs, which may perhaps be separate from all the rest. These passive qualities of legal capacity or incapacity inhere, not in the transaction (in general), but in the person of the party, and in the main have the same situs as the person whose capacity is in question.1

Thus, it is not difficult to conceive of a contract made by A, of New York, with B, of Massachusetts, entered into in New Jersey, to be performed in Maryland, in consideration of an act to be performed by B in Pennsylvania. We may even go fur

1 Post, §§ 69 et seq.

ther and suppose the consideration for A's promise to be an executory contract made by B to be performed in Virginia.

In this hypothetical case it will be observed that many different States, possessing various systems of law, are represented, and each may be the situs of some material step (active or passive) connected with the transaction. A's capacity to contract has its situs; B's capacity to contract has its situs; there is a situs for the entry into the contract; another for the consideration of the contract; another for the performance of the contract. And if the consideration be itself executory (as where B makes a promise), there may be a separate situs for the formation and for the performance of that contract.

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Each one of these elements may have a separate situs and be governed by a different law. Each such element must be upheld by its proper law, the law of its situs, in order that the transaction as a whole may be upheld. It is not proposed to consider at this point what is the situs of each of these elements. plete answer to that question in such a case as the above, and in other cases of which this is but a sample, would constitute a treatise on the Conflict of Laws, and is the purpose of this work. It is intended here merely to point out that the situs of each step in a given transaction is to be carefully noted, and its effect is in general to be tested by the law of that situs. The complete transaction being made up of all these various elements, its ultimate validity will in general depend upon the validity of each of its constituent parts (tested by its proper law). If, when so tested, each element is valid, then the transaction as a whole will be valid; but if one or more of the essential steps be invalid, when measured by its proper law, neither can the transaction as a whole be in general sustained.

Hence, in order to arrive at a correct solution of the law which is to govern a particular transaction, that transaction must be resolved into all its essential parts, and to each of these parts the law of its own situs must be applied.

These elements of a given transaction may be active, dependent upon the will of the party himself. In such cases he may

2 Subject always to the exceptions given in Chapter II.

perform the particular act or not as he pleases, and if he chooses to do the act, he may and does select the place where it is done. But having once done the particular act at the place selected, the effect of that act must in general be determined by the law of the place where it is done. This is expressed by the maxim "locus regit actum." The party should not be permitted to select one place for the doing of the act in question and then select the law of a different place to govern that act, for that would be to subordinate the sovereignty of the first State to the will of the individual. He cannot thus give the act, by the mere exercise of his will, a constructive situs which it does not actually possess.

Other elements in a transaction may be passive, arising by act of the law. The capacity of a party to do an act or receive a benefit, taxation of property, the succession to a decedent's property, adjudications of insolvency or bankruptcy, marital rights, etc., are instances where elements of this kind occur. Such elements also must possess a situs somewhere. But when the law acts, it must either act upon the person or upon property. If upon the person, the act of the law will generally have the same situs as the person; for if the person be not actually or constructively within its jurisdiction, the act of the law is nugatory. When acting upon the person, the law creates a status. Hence the situs of a status, whose law will govern it, is the situs of the person.

If the law acts upon property, the situs of the act of the law follows the situs of the property; in other words, the property must have its situs, actually or in contemplation of law, within the jurisdiction of the law purporting to act upon it. But there may be a legal, as well as an actual, situs of property, at least in case of personal property, the actual situs not being in general considered save in the exceptional cases mentioned in the previous chapter. It is the legal situs that is usually looked to, and that follows the situs of the owner, upon the maxim "mobilia personam sequuntur.” 974

These are the basic principles upon which private international law, as a science, is founded. But in their application

Ante, §§ 6, 7, 14.

many difficulties and much confusion among the authorities will be encountered, not only in determining what are the essential elements of a given transaction, but in deciding what is their proper situs when ascertained.

Since the situs of status and of personal property generally follows the situs of the party to whom they pertain, in order to determine the law which governs questions relating to these matters we must consider what is the situs of the person.

In regard to contracts, we must look to the same law with respect to questions of capacity (capacity being a status 3), but with regard to those elements which consist of active steps taken by the parties and dependent upon their own will, such as the entering into the contract, the performance of it, or the performance of the act which constitutes the consideration therefor, we must determine what is the situs of each particular act forming a constituent part of the transaction.

So likewise, in regard to torts and crimes, we must determine the situs of the tort or of the crime, in order to ascertain the law properly applicable. And so it is also with respect to remedies."

§ 18. Actual Situs of the Person. - It seems a paradox to say that a person may occupy two places in space at the same time. Yet under the rules of private international law such is the case. But it is not the paradox it seems, for the law only admits one to occupy two places at the same time for different purposes, -never for the same purpose. The latter principle prevents the confusion of applicatory laws that would otherwise result from the former.

The law assigns to every man immediately upon his birth and throughout his life a situs in the State where he has his domicil, whose laws are those to which primarily he owes allegiance.

Ante, § 14; post, §§ 120 et seq. We will see in the following sections that the situs of the owner may itself be either actual or legal. In regard to immovable property, the actual and legal situs will usually correspond. See ante, § 11.

5 Post, § 72.

Post, §§ 195 et seq., 204. But in the case of crimes, the exception relating to penal laws applies in full force. Post, § 203.

7 Post, §§ 205 et seq.

In order that he should possess this domicil, it is not necessary that he should actually be present there at all times. He may actually be at a given moment in one State, while his domicil is in another. The domicil, then, is the legal situs of the individual, and may or may not be coincident with his actual situs at a given moment. The actual situs of the person at a given moment is the State where, at that moment, he is actually physically present. The legal situs of the person is the State of his domicil, the State of his permanent residence, whether he is actually present there or not.

We have seen that there are certain cases (transactions touching status and personal property) wherein the law of the situs of the person will control. Under some circumstances, it will be the law of the actual situs of the person. Under others, it will be the law of his legal situs or domicil. These two may

coincide in a given case, or they may be distinct. In the latter case, the law of one or the other situs may govern a particular element or matter, but never the law of both. In ascertaining which situs should furnish the law to govern a particular matter properly determinable by the law of the situs of the person, the same distinction must be made as was noted in the preceding section between active or voluntary elements, and passive or involuntary elements, or such as are created by the law itself, without the exercise of the party's will. It will be remembered, as we saw in the last section, that a person's status is the creation of the law, and not dependent upon his will. On the other hand, the disposition or transfer of his personal property may result merely from the exercise of the owner's will, as in case of a conveyance, or it may result merely from the act of the law, as in the case of the succession to an intestate's personal estate.

If a person domiciled in one State enters actively into a particular transaction in another State, he has deliberately chosen for the purposes of that transaction to submit himself and it to the operation of the latter law. In selecting a place for the performance of the act in question, he selects its law as the governing law; to hold otherwise would be to deny to that State sovereignty and control over acts taking place there. Justice to the party himself, to the other parties to the transaction, and to