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
