The Theory and Practice of Private International Law

THE THEORY AND PRACTICE

OF

PRIVATE INTERNATIONAL LAW.

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PRIVATE INTERNATIONAL LAW

BY

7'2/J7/'2' L. v. I/3AR

—’;’_'_,,-rEr"‘-‘ /-'

QUI AUTII CIVIUM RATIONEM DICUNT HABBNDAH EXTER

NORUI NBGANT: UIRIMUNT COMIUNII HUMAKI GER

BBIS BOClE'l‘1\TEM.—C|cn:v, De U]. ILL 6.

SECOND EDITIOJV, REVISED AND ENLARGED

TRANSLATE

G. R. GILLESPIE, ADVOCATE

OF THR SCOTTISH BAR

EDINBURGH

“WLLIAM GREEN SONS

LAW PUBLISHERS

1892

EQDU

TRANSLATOR’S PREFACE.

Ix 1889 Dr Bar published the second edition of his work on International

Law. Although it was styled second edition, it was in fact new book,

twice as large as the former work, in spite of the omission of the subject

of criminal law. The former edition being thus entirely superseded,

thought it desirable to give those who had some acquaintance with the

auth0r’s work in its English form the opportunity of seeing it in its latest

shape.

This new edition deals so fully with the details of the various topics of

the subject that it will prove as useful to the practical lawyer as its

predecessor was. The philosophic lawyer will find the general principles

of international law, as well as those of each chapter of it, fully examined

and set out. The only important part of the treatise which an English

lawyer will find it impossible to accept in any degree is the substitution of

nationality for domicile as the determinant of personal law. So many of

the questions of international law that have been dealt with by our Courts

have arisen between parties who are all of the same nationality, 'i.e. all

lritish subjects, although under the dominion of different legal systems,

eag. Scotsmen and Englishmen, that the idea of nationality as solvent of

such questions is unfamiliar and would necessarily be inadequate. But

there is no difiiculty in substituting domicile for nationality in all those

cases in which the latter has been selected by the author as the considera

tion upon which this or that problem depends; and thus his results are

available for the English or Scottish or American lawyer, in spite of this

discrepancy in principle.

have endeavoured, in the notes appended to the author's paragraphs

to set out shortly the state of the law in Scotland and England on the

various points dealt with by the author or suggested by him. He has

vi TRAIVSLA 7‘0R'S PREFACE.

gone so fully into the decisions of the Continental courts, and has so

uniformly appealed to American text-writers in his own text, that have

not found it necessary to cite many decisions either from Continental courts

or from those of the United States. When have cited Continental

judgments, have given references to the Journal du diroit 'inte1~na1io1urI

privé, in which all these decisions are to be found.

PREFACE.

FULLY quarter of century has passed since the appearance of the first

edit-ion of this book. The conclusions which then advocated—I shall

not say 0riginated—have been upon the whole, but of course with

certain exceptions, more and more recognised in judicial and diplo

matic procedure, in congresses of the learned, and in legislation and

treaties, in so far as legislation and treaties have attacked the subject.

The present, the second edition, has however taken shape which

practically makes it new work. The size of it, if nothing else, shows

this. Although have left out the subject of international criminal law,

which took up along with civil law in the former edition, still this

edition contains more than double the number of pages which the first

did.

Various circumstances have combined to effect this. Not only have

the questions which require discussion multiplied largely; subjects which,

when the first edition appeared, were scarcely noticed in private international

law, have in the meantime had much valuable labour given to them, and

some of them have been treated of in monographs. This has been the

case with nationality, and with copyright, including the law of so-called

industrial property; while commercial law, including maritime law, has

been much discussed with special reference to its bearings on private

international law in fashion quite different from that of former days.

Further, the Revue de droit international, which has appeared ever since 1869,

and in special degree, too, the Journal du droit 'inte1'national privé, have

amassed material for illustration of the different topics of our subject in

way that cannot be too highly spoken of, while the literature of the

subject has grown in surprising degree, particularly in France and Italy.

So too much of the territory which lies on the boundary line between

what is properly public law and private international law, e.g. extra-terri

toriality,__ has been more thoroughly explored. Lastly, however, the

vu

viii PREFACE.

new Italo-French school of private international law has shown the way

to thorough examination of the leading principles of the science. Even

although we may not be able to adopt the principles of that new school,

we must gratefully recognise all its services, both direct and indirect. In

the present edition, forced as was to take up distinct position upon

these leading principles, found that this new school required me to subject

Savigny's theory, which up to this time had ruled the German school, to

renewed examination. Even in my former edition hinted that it could

not remain standing without some modification. But as that was youthful

production could not in it becomingly depart from the principles of the well

known master. Now think may say that the ground-plan which

have adopted in my second edition, although it is akin to Savig1y’s

doctrine, has taken up position beside it, which is not altogether depen

dent upon it.

The question may be raised, whether the time is yet come for treating

private international law as unity, and without special reference to the

law and jurisprudence of the individual states concerned, except in short

sketch, which may serve to give us the bearings of the subject. If an

author is to treat"tl1e whole subject of private law in different nations

thoroughly, he exposes his legal knowledge of the most various topics

to test that is anything but pleasant. Mistakes will very probably be

made, both in his appreciation of particular legal doctrines and in his

views of the positive legislation and legal precepts of different countries.

An author who deals with some particular heads of private international

law in monograph is in many respects in as advantageous position as

one who writes upon that law from the point of view of one country only.

As fact, so quickly do laws alter in our time, every general work upon

international law must be taken, as traders say, with errors excepted,"

and any lawyer who consults the book for the practical purposes of some

particular case should be warned to apply to legal specialists for infor

mation as to the law of the country in which he happens to be interested.

But nevertheless, in spite of these advantages which the treatment of

the subject by monographs, or from the point of view of one system of law

only, enjoys, science dare not refuse to undertake an enquiry which will

include all civilised countries, or at least the most important of these

countries. For that there is this reason, if no other, viz. that private

international law stands in very close connection with public international

law, the law of nations. Any special treatment of the subject, such as

starts from the positive law of this or that particular national system, runs

this risk, for want of assistance from some general theory, that, from the

very narrowness of its field of vision, it may make mistake in its selection

PREFACE. ix

of the proper point from which to set out, or may lose all standards.by

which to determine the extent of recognition that should be accorded to

the different principles of the science in the general organisation of private

international law. But, lastly, any special and restricted treatise will

always create feeling of uncertainty, and will be exposed to the danger

of being undermined by some new ideas, perhaps embodied in statute,

which are new and fanciful, but wear the appearance of ingenuity. The

structure of private international law of the present day, when taken as

whole, is like an artificial arch. Each particular stone appears to float

upon the air; it is only those who know the whole who know that it will

carry great weight in safety, although they know, at the same time, that it

cannot be altered just as any one likes.

have not added to the various sections of my work comparative

review of the rules of law in different particular States, which may concur

with each other, or may difi'er. If one has not certain amount of

familiarity with comparative jurisprudence, it is not very easily feasible to

work out the problems of private international law without losing oneself

among unsubstantial phantoms. German literature, above all others, gives

us some warning examples of this kind of attempt. thought, however,

that it was not desirable to treat details and theory together. When

these are combined, either the one or the other is apt to be taken too

shortly; at least, could not trust myself to do equal justice to both.

Besides detailed statement of actually existing law stands in need of

constant correction. At the same time, hope that the selection of illus

trations which have made from the legal systems of different countries

will not be found to be altogether too small. In this way thought that

the leading types of the various developments which different doctrines

of law have attained in the most important civilised countries might be

presented to the reader, without prejudice to the impression which should

be made by the consecutive exposition of the theory of private intema

tional law, or of the sound rules of practice to be observed in it, which

reveal themselves along with the theory} had no intention of saying

word of reproach against the works which have undertaken to deal at

the same time with comparative jurisprudence and private international

law, but my opinion was that the two subjects were better apart.

have nothing but extrinsic reasons for abandoning the dissertation

upon criminal law in this edition, which in the former edition was part of

In this second edition have retained and discussed even more fully than in the first,

as will be observed, along with theoretical problems, the subject of the practical tendency of

these problems.

PREFACE.

my subject. cannot share the theory, which has certainly large

measure of support, that criminal international law belongs to another

sphere of ideas altogether. am rather inclined to the view of one of the

most recent of French authors (Lainé),’ that private and criminal law,

including the law of procedure, are bound up with each other by the

consideration that the object to be attained is to settle what is the

treatment which the law should mete out to the individual who is in the

midst of foreign legal order, or, more accurately, to settle the jurisdiction

of the instruments of law set up by the organisation of different States

over individuals and their rights. This consideration is common to

criminal and to private law, in so far as, in the former case, viz., in

criminal law, the individual’s title to defend the sphere of his rights

against the control of the law is concerned. In public law, on the other

hand, the relation and conduct of States to each other as wholes is what is

considered.” should have gladly then retained the original scope of the

work, in which criminal law was included. But very recent days have

given us comprehensive and valuable works, particularly in the juris

prudence of Germany, upon this subject of criminal international law,

at least upon the special subject of extradition. Thus my work on the

subject may quite conveniently, for the present, stand over, whereas this

second edition was much required, especially in view of the effects which

important political changes have produced since the date of the first

edition. If had taken in criminal law, the publication must have been

long delayed, and in practical use private and criminal law, as rule, are

separable. Thus felt myself able to exclude it for time from con

sideration.

In my view private international law does not require, as condition

precedent to its existence, that it should have been constituted, so far as

its leading principles or doctrines are concerned, by treaties or by legis

lation. It exists because it is necessity, and it is the force of circumstances,

the nature of things that makes it so. The fact that it embraces

multitude of doubtful and controverted points proves nothing to the

contrary. just as little as in other departments of the law. \Vitl1out desir

ing to deny the value which treaties and legislative provisions possess in

many respects, believe that have shown in various ways that treaties

and detailed enactments of the legislature, the difficulties of which can

Introduction au droit international privé, i. p. 11. regret extremely that could not

make more use of this work, which is not yet completed.

Many legal topics, however, may be treated under the one head as well as under the

other.

PREFACE. xi

only be disregarded by superficial observers, have sometimes done more

harm than good in this field, in which every arbitrary measure brings its

own revenge, just because the essential characteristics of the subject are

determined by the real nature of things.

But am just as far from believing that what is termed an international

uniformity of legislation will make private international law for the most

part superfluity.‘ There are no doubt certain territories in which such

an uniformity of legislation may at times be adopted with profit, although

perhaps it should be even there confined to few propositions. But the

extent of these territories is small. On the other hand, too extensive

an uniformity in the laws of civilised States would do much to check

progress, which for the most part is dependent on each State enjoying

freedom of movement. It is the task of private international law to

maintain harmony amidst this freedom of the different legal systems,

which are not to be prevented from solving the problems of civilisation in

various ways.

The part which private international law has to play in the work of

civilisation—it is still treated in Germany as sort of step-child of the

philosophy of law—may appear modest as compared with that of public

international law; still, it is important enough. It protects and assures

the peaceable intercourse of private persons in different nations. In this

way,therefore, it maintains the threads,—which,fine as they are, still together

will sustain great things,—on which the exchange of goods and of ideas, the

mutual respect of nations, and therefore the maintenance of peace, depend.

In the outset of national history hatred of all who do not belong to the

nation, and the exclusion of them from intercourse, are, as rule, the leading

principles. It is, however, sign of strength and prosperity in peoples and

States that they should receive strangers hospitably, and should cultivate

closer international fellowship, to the advantage of humanity at large,

without injury to their appreciation of their individual nationality, and

without anxiety about it.

Gorrmonu, June 1889.

See in this connection Georg. Colin, “On the Assimilation of the Laws of Nations" (Ueber

1"llcrnnt1'nmzl gleicha rccht), lecture given in the Juridical Society in Viennn. Vienna, 1879

CONTENTS.

List of Authorities referred to

Table of Decided Cases (British and American) referred to

giirst $0012.

Tun Omncr AND nu: Scorn or PRIVATE I1<'rnn.\'a'r1o2~".\x. LAW lrs HISTORY

axn Gnxsmn Tn!-zonv.

I. Object and Scope

1. General Remarks

2. Private International Law and the Laws of particular States.

3. Possibility of General Theory of Private Intemational Law

4. Real Validity of Private International Law. Law oi‘ Custom

5. Independent 'Ih'eatment of Private Intemational Law

6. Dilferent Titles for Private International Law

7. Is there at present Comprehensive Science of Private International Law?

(Treaties)

II. History

A. Roman Law.

8. The Authorities ofJustinian

9. Original Ontlawry of Foreigners, but recognition of the Legal Existence of

Foreign Governments. Friendly States. Recuperatorcs

10. The jus gentimn of the Romans and thejus civile

1. Csracalla's Innovation. The Invasion of German Tribes

1'2. Appendix. The Passages in the Roman Authorities which seem to touch

upon the so-called Conflict of L:~\\\'s

B. The Middle Ages.

§§ 13, 14. System of Personal Laws

§§ 15-18. The Later Middle Ages. Statute Theory. Preponderance of Land

Ownership. Lea: rei s-itm. Opposition of the Commentators on the French

Coutumes to the later Commentators. Rise of the Statute Theory.

Meaning of it

C. Modern Times, up to the beginning of the nineteenth century.

§-S 19, 20. Individual Writers of this period. Older French Jurists (Dnmoulin,

D‘Argentré) Jurists of the Netherlands (Burgnndns, Rodenburg, P.

Voet, Huber, J. Voct); the German Hert; French and German Authors

__ of the Eighteenth Century (Bonhier, Boullenois, Alef, Hofzeker)

PAGE

xxxi

xli

\l@UlIbNu0-4

11

11

12

14

17

21

28

Xlll

xiv CONTENTS.

II. History—co1mImwd.

D. The Nineteenth Century.

21.

22.

23.

2-I.

25.

26.

28.

29.

30.

§31

The Code Civil and the French Jurisprudence which rests on it

The Positivists of England and the United States

The Leading Rules established by German urists

Fundamental Works: 1. v. Wiichter

2. v. Savigny

German Literature following on Savigny; Modifications of his Principle;

attacks on it respect paid to it in other countries, particularly in

England and the United States

The most recent Literature of England and-the United Sta-tes (Pliilliniore,

Westlake, Beach-Lawrence, Wharton) and its Relations to Savigny's

Theory. The Netherlands, Belgium and Russia (Asser-Rivier and

v. Martens)

The new Italian School and its Adherents in Belgium and France. Mancini,

Esperson, Fiore Laurent, Durand, Weiss

Criticism of the Modern Italian School (Stripower); Defence and lllo<lili|-a

tion of its Doctrines by Fusinato

Laws of Public Order, for which the Principle of Territoriality is said to

give the Rule. Brocher's Definition of the Laws of Ordrc Public

International

Practical Achievements of the Italian School (Italian Statute Book). The

most recent Italian, Belgian, and French Literature. (Criticism of

particular Works.) Periodicals. Associations for the Promotion of

International Law

82. E. Principles of the Projected Inquiry

as.

534.

gss.

36.

Comparison of these Principles with those of the New Italian School

Outline'of Theory of Private International Law

Appendix I. Laws of Independent States and Particular Systems of Law

within the Boundaries of one State

Note on 35. Relations of Legal Systems of England and Scotland

Appendix II. On the so-called Coercitive or Prohibitory Laws

§§ 37, 40. Application oi Foreign Law_on the Motion of Parties only or ea: oflicio.

§4l.

Proof of Foreign Law. Is the Omission to apply Rule of Foreign Law,

or the erroneous Application of it, accompanied by the same Results as

emerge if Rule of our own Law is left out of consideration or erroneously

applied? Treaties, in so far as they touch on Private Legal Relations

Note I3 on 37. Application of Foreign Law

§ec:mh gm.

DOMICILE AND NATIOXALl'l'Y.

Introduction. Various Relations which Person may bear to Territory

l. Domicile.

42.

43.

Conditions of Domicile in General

Evidence of Intention. Doubtful Cases. Loss of the Old, and Acquisition

of New Domicile

PAGE

4'2

45

48

52

57

60

61

65

69

73

77

83

85

ST

94

95

98

101

111

112

Legal Domicile. Forced Residence. Forced Absence

Legal Domicile of Ofiicials, Soldiers, and Persons in dependent Position

in Family

Plurality of Domicilcs? Persons without Domicile

Appendix. Domicile of Juristic Persons Domicile of Incorporated

Companies in particular

113

115

II6

I19

1'21

CONTENTS. _1V

PAGE

ll. Nationality.

48. A. Historical Development 123

49. B. General Import of Nationality in International Intercourse 126

§50. C’. Various Principles. Place of Birth (jus soli). Descent (jus sanguinis).

Mixed Principle (The Principle of Assimilation) 126

51. Children whose Parents are unknown (Foundlings). Illegitimate Descent 131

52. Date of Birth decisive 132

53. Legitimation 133

54. D. Import of the Law of Nationality. Rights and Duties 134

E. Loss of one Nationality without contemporaneous Acquisition of another?

55-57. Release from the State Ties 137

58. Loss of Nationality as Penalty, as Consequence of particular Acts 141

§59. Entry into the Civil and particularly the Military Service of Foreign

State. Abandonment of Native Country 143

F. Freedom of Expatriation or Emigration.

§60. (1) Historically considered. The Principle 145

61. Restrictions by Reason of Special Obligations (Military Service): Ellect of

these in Relation to other States 147

62. (2) Naturalisation as Ground for the Loss of previous Nationality 150

63. The Bancroft Treaties concluded by the United States 152

G. Natnrnlisation.

64. (1) Definition 154

65. (2) Requirements. Consent and Capacity of the Person 156

66. The Baulfremont Case 158

67. (3) Naturalisation an Act of Sovereignty. Defects in this Act. Right of

the Courts to inquire into Naturalisation. The Bauffremont Case again 161

68. Natnralisation infraudcm Zegis 166

69. (4) Change of Residence as Condition of Naturnlisation 163

70. Domicile for considerable Period ('.?) 170

71. (5) Privileged Naturalisation of Married Women 172

72. (6) ls the Demand for Naturalisation highly Personal Act? Naturalisa

tion of Children who are still under the patria polestas. Naturalisation

of Persons under Age 17

73. (7) Effect of Release from the Ties of State upon the Dependent Members

of Family 177

74. Reacquisition of Nationality that has been Lost 179

75. H. Nationality in Federated States 181

§§ 76-83. I. Change of Nationality in Consequence of Cessiou of Territory.

Options 131

§§ 84, 85. K. Formal Determination of Nationality 139

§86. L. Plurality of Nationalities 192

$587-89. ll. General Result. Conflicts. Treati 193

90. N. Determination of Personal Law by Domicile or by Nationality. Positive

Law 196

91. Reasons for the two different Principles 199

92. The Principle of Nationality likely eventually to Prevail 203

92.\. Domicile an Auxiliary Ground for Determination: in Particular in Cases

of Conflict among the particular Laws prevailing within one and the

same State 205

93. Distinctions according to different Legal Topics 206

§9l. Conflicts 208

Ill. Equality of Foreigners and Native Subjects before the Law

95. The Principle of this Equality 210

96. Civil and Natural Rights 212

97. System of Reciprocity? 214

98. Rights which were originally Privileges. Right to particular amc 216

99. Rights to res nullius. Fishery Rights. Property in Sea-going Ships 217