It is reasonable to conclude, that with all this intimacy of connexion, the laws of succession in personal estate had become gradually approximated to each other in the two countries. When we find at that period in France several of those modifications of the civil law which are in full force in Scotland to this day, it is not unreasonable to conclude that we have derived them from that country.

But although some of the chief doctrines of the law of Scotland, such as the communion of goods between hus-band and wife, and various consequences resulting from this communion of goods, appear to have been universal in France, we have not been able to discover in any part of that country the same rules of law, in the succession of personal estate, obtaining, as a whole, which now prevail in Scotland.

Down to a very recent period all France was divided "en pays coutumiers, et en pays de droit ecrit." There were, besides, the royal ordonnances, which were common to both divisions of the kingdom. (a) But in the pays de droit ecrit, where the Roman law prevailed, that modification of the law of succession which is contained in the three first chapters of the 118th novel of the Emperor Justinian was constantily followed as the rule. (b) These chapters introduced new regulations in regard to the succession of descendants, of ascendants, and of collaterals, which never appear to have obtained in Scotland. The first chapter

in his observations upon this act, that down to the reign of Charles II. the privileges thus granted to Scotchmen were claimed as being them still in force in France.

(a) Projêt du Code Civil, Discours Preliminaire, p. 16.

(b) Code Civil" Rapport fait au Tribunal, par Chabot, sur la loi re"lative aux successions." He says, "Et cette novelle, qui forme le "dernier etat de la legislation Romaine, etait constamment suivie dans 66. le pays de droit ecrit."

of this celebrated novel, in regard to descendants, lays down the rule of succession per stirpes, and the right of representation of the descendants of deceased children. The second regulates the rights of ascendants, particularly of the mother, whom the ancient law of the twelve tables had rejected from the succession; and lays down the rule of law of dividing the succession by paterna paternis et materna maternis. The third chapter regulates the rights of collaterals, provides for the representation of brothers' and sisters' children, and settles the preferences of the whole and the half blood.

The customary laws of France were of prodigious extent and intricacy. (c) These were full of rules, differing in the several parts of the kingdom upon almost every point regarding the disposal of and succession in real and personal estate. Some of them contain rules by which the succession was confined to agnates, or relations by the father's side, to the exclusion of the mother and the maternal relations, as in the law of Scotland. Whether there were any of these customs which agreed precisely with the rules of personal succession now observed in the law of Scotland, has not been observed; and it would be unprofitable to pursue the inquiry more minutely. Neither are there any means by which we can discover why, when we adopted the rules of the civil law in regard to succession in Scotland, we appear to have rejected so much of the jus novissimum as was contained in this novel of Justinian. Several of these rules are of a very equitable nature. There

(c) The "Nouveau Coutumier de France, et des Provinces connues sous les noms des Gaules," contains a statement of these customs, to the number of five hundred and forty-seven. These must have occasioned intricacy almost intolerable in regard to succession in France. In recent times the whole have been swept away by the " Code Napoleon" and the "Code Civil.”

can be no doubt, that, when we come to revise the state of the law of succession in Scotland, much benefit will result from minutely considering the matured wisdom of the Roman law upon this subject. Accordingly, in England (d), and in France (e), we see the great attention that has been paid to it, in settling the respective laws of succession in personal estate in those two countries.

(d) By the Statute of Distributions.
(e) Code Civil, "Des Successions."

CHAP. VI.

OF THE CASES WHICH

HAVE ARISEN IN SCOTLAND

UPON

QUESTIONS OF INTERNATIONAL SUCCESSION, BEFORE IT WAS SETTLED THAT THIS SHOULD BE REGULATED BY THE LAW OF THE DOMICIL.

For a long period, the difference between the rules of law in the succession of personal estate in the several parts of the British empire, between themselves, or as respected the personal property of foreigners situated in Britain, appears to have attracted little attention. These rules had not then come distinctly into collision in any case which has been noticed. Foreign jurists, however, have long been familiar with the doctrines resulting from the conflict of laws in the different countries of Europe, in regard to the succession of persons dying, having bona mobilia, or nomina debitorum, in different countries, where the rules of the law of succession are different. This had arisen out of the great variety of the rules of law which had sprung up in the different countries of Europe, and often in the same country, since the fall of the Roman empire.

In the corpus juris, or body of the civil law, there is nothing very distinctly laid down, on the subject of international law. One chief reason for this is stated to have been, that at the time when that body of laws was promulgated, the Roman empire, which contained the whole civilised portion of the globe as then known, was governed by the same laws. (a) Though this may not be admitted

(a) Huber says, " In jure Romano non est mirum nihil hac de re "extare, cum populi Romani per omnes orbis partes diffusum, et æqua

in its fullest extent, it is certain that the doctrines of the foreign jurists on questions of this nature have grown up in comparatively modern times; and that they have drawn little of these from the works compiled by Justinian. (6)

It is a principle flowing from the independence of nations, that the law of one country can have no intrinsic force, proprio vigore, except within the territorial limits and jurisdiction of that country. The maxim "extra territo"rium jus dicenti impune non paretur" (c), is applied to the

"bili jure gubernatum, imperium conflictui diversarum legum non æque "potuerit esse subjectum." (Huber, prælect. jur., pars 2. lib. 1. tit. 3. s. 1.) But there seems to be no reason to doubt, that as well before the time of Justinian as afterwards, there existed different rules of law in the different parts of the Roman world. (1. Hertii opera, sec. 4. de collis. leg.) In the Digest, there are traces of the existence and operation of the lex loci. (Digest, lib. 50. tit. 1. 1. 21. s. 7. tit. 3. 1. 1. tit. 4. 1. 18. s. 27. tit. 6. l. 5. s. 1.) In the argument on the case of Somerville, to be afterwards mentioned, it is stated as matter of doubt, whether in the time of Justinian the succession to the personal property of a citizen of Jerusalem would have been regulated by the Roman law, or by that of the Jewish people. (Somerville v. Somerville, 5 Vesey, 780.)

(b) An exception should be made in regard to the definition of Domicil, which, it will be seen in the sequel, forms an important matter of inquiry in all cases of international law. Whether domicil was to be held as regulating only in regard to offices, or otherwise, we find many texts in the civil law bearing upon this subject; among others, the following, which are often quoted, may be noticed here:-" Et in eodem "loco singulos habere domicilium, non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit; unde (rursus) non "sit discessurus, si nihil avocet; unde cum profectus est peregrinari " videtur; quod si rediit, peregrinari jam destitit." (Cod. lib. 10. tit. 39. 1.7.) "Eum domum unicuique nostrum debere existimari, ubi "quisque sedes et tabulas haberet, suarumque rerum constitutionem "fecisset." (Dig. lib. 50. tit. 16. 1. 203.) "Si quis negotia sua non "in coloniâ, sed in municipio semper agit; in illo vendit, emit, contrahit, eo in foro, balneo, spectaculis utitur, ibi festos dies celebrat ; " omnibus denique municipii commodis, nullis coloniarum fruitur; ibi "magis habere domicilium quam ubi colendi causa diversatur." (Dig. lib. 50. tit. 1. 1. 27.) "Domicilium re et facto transfertur, non nuda " contestatione." (Ibid. lib. 50. tit. 1. 1. 20.)

(c) Dig. lib. 2. tit. 1. 1. 20.