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. (b)

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. l. 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 rerum

que 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, con66 trahit, 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. J. 1. 20.

municipal laws of the different countries in the world, as the Romans held it to be applicable in relation to the authority of their magistrates. But the comity of nations, with a view to the comfort and convenience of their respective subjects, has rightly conceded that there should be some exceptions to this strict rule of the territorial law; and these exceptions form the subject of international law. They present many questions of great difficulty which have long exercised, and still continue to exercise, the ingenuity of the most acute minds, conversant with all that exists of the mass of accumulated learning upon matters of this sort.

International law has never been treated at large as a system, by the writers on the laws of these realms. It is only in modern times, that questions of this kind have attracted the attention of our courts of law; several centuries after the wants of continental Europe had made the subject of international law familiar to their writers.

In their disquisitions upon matters of international law, and the rules by which these were to be governed, the continental writers have endeavoured to get rid of many of the difficulties of their subject, by classing it under the heads of personal, real, and mixed statutes. They use this word statute in a different sense from that in which it is used by British writers with us it is commonly applied to acts of the legislature, in contradistinction to the rules of the common law with them it is applied to the whole municipal law of any particular state, from whatever source derived. (d) Personal statutes are held by the continental writers to be of general obligation, in so far as the person or status of

(d) In some writers the word statute is used to signify the particular municipal law of any state, by way of distinction from the Roman imperial law, styled the common law. Voet. de Statutis, c. 1. s. 4., defines a statute to be jus particulare, ab alio legislatore quam Imperatore

constitutum.

any individual is concerned. Real statutes are applied to property, whether moveable or immoveable, and are not otherwise connected with individuals: they are held to have no force extra territorium within which the property is situated. Mixed statutes are those which at once concern persons and property of any description.

In the application of this classification to particular cases, there has been a great diversity of opinion among the most distinguished of the foreign jurists, from Bartholus and Baldus in the fourteenth century, to Heineccius and Boullenois in the eighteenth. They were never able to lay down any certain and satisfactory rules for distinguishing personal from real statutes; nor to show, in regard to mixed statutes, whether the personal or real portions of these should have preponderance.

It would be out of place here, to enter into any inquiry in regard to the conflicting opinions of civilians upon this intricate subject (e); their doctrines upon personal, real,

(e) In the treatise prefixed to Mr. Henry's Demerara case of Odwin and others v. Forbes, we have, for the first time in the English language, an explanation of the personal, real, and mixed statutes of the continental jurists. (Chap. 1, 2, 3, 4.)

But in the United States of America we find these subjects treated more at large, and in a more scientific way. The same causes which have made the doctrines of international law familiar upon the continent of Europe, have rendered it necessary to study them in America. There appears to be a great diversity in the municipal laws of the several states forming the American Union, some of these having been transplanted from the different countries of Europe, which originally gave law to those territories.

This has already produced among them writers who have treated of these important subjects, of distinguished name. We have learned the respect that is due to Professor Kent, the late chancellor of the state of New York, author of the "Commentaries on American Law," a name probably not inferior, as a legal writer, to any of the present day. The treatise of the late Samuel Livermore, of New Orleans, “ On the "Contrariety of Laws," and the commentaries of Dr. Story," On the