provincial courts; in the United States the federal system rubs shoulders with the independent State courts. Probably the procedure will approximate as nearly as possible to that of the Judicial Committee of the Privy Council and the Federal Court of the United States, which are both in a full sense international tribunals. Already, however, a strong sub-committee of the International Judges, including Lord Finlay and M. Weiss, is engaged in drafting a scheme of procedure.

1

As to evidence, it would appear from Mr. James Brown Scott's commentary on Article 50 that the examination of the witnesses has to be done by the Court in accordance with the procedure made familiar to many by the war trials at the Leipzig Supreme Court. If counsel want any questions put they will have to ask the presiding judge to put them. Presumably some sort of oath will have to be administered to witnesses, but, on the other hand, the Continental system of hearsay evidence is certain to be allowed.

1 Carnegie Endowment: Pamphlet No. 35.

THE THEORY OF THE STATUTES.

[Contributed by WYNDHAM A. BEWES.]

We shall not have proceeded very far in our study either of International or Comparative Law without coming in contact with expressions hitherto unfamiliar to us, such as le statut réel, le statut personnel, le statut formel, and we are puzzled, since in our system of law we have no terms which quite parallel the meanings conveyed by these expressions. Now here we touch the fringe of an age-long controversy, carried on with great eagerness and conviction, between the protagonists of the extreme theory of the territoriality of law and those who champion the thesis that the applicability of a law is less governed by the locality of a res than considerations which concern the person whose rights are in question. To us of to-day, these long-drawn hostilities between the two camps are chiefly of historical interest, and we are concerned much more acutely with the present result of these disputes than with theories which have been magnified, modified and then perhaps abandoned.

The riveting of the feudal system upon the surface of Europe had one of its most important results in augmenting the transcendence of landed property in a chain of land-holders from the King downwards; and this, in its turn, led legislators and lawyers to the conclusion that all law was territorial to the extent that an emigrant absolved himself entirely from his legal environment on passing the frontier, and an immigrant, on coming into the realm, immediately became subject to all local law to the exclusion of those both of his nationality and of his domicil.

We may stop here to mention the droit d'aubain, one of the direct results of pressing the technical theory to extreme practice. By it the assets of a foreigner dying in France were confiscated to the State, nor could unnationalised children who happened to be within the kingdom succeed to the estate of a nationalised father, while a national who had left the kingdom and renounced his fatherland could not succeed to assets left within the realm. This harsh law was not repealed until the Constituent Assembly met in 1789.

Now, it is very true that the territorial law did not operate so unjustly in the Middle Ages on the western part of the continent of Europe as one might suppose, and this for the reason that the old Roman Law remained the common law of the peoples, varied by local custom : and for the additional reason that the bulk of international commerce was conducted at the recognised great fairs, and questions which arose out of commercial transactions were decided by a tribunal of merchants according to the

Local

law merchant, l.e. by the custom of the fair. But the world could not stagnate, and after the great migrations had finished and the on-coming population had settled down in their new territories, barred from further progress by the sea, it was but to be expected that international intercourse would once more develop and necessitate in practice some changes in the exclusive remoteness of the feudal nations. Commerce grew apace as the wants and supplies of civilisation increased: the unity of the dominant Church had its influence in combining the interests of its constituent races, great universities and other centres of learning attracted students from divers and far countries, merchant colonies were founded in foreign countries, as for instance by the Hanseatic League, and many other lesser but not inoperative movements began to interact between the peoples.

It will be remembered that at this time none of the three countries of the western continent was a united whole. Italy, France and Spain were fragmentary, Italy being notably disunited. This agglomeration rather than cohesion of participant elements occasioned the rise of bodies of fresh local custom, peculiar to a province or constituent State, and regarded for long by leading jurists as strictly territorial in their application.

The first break in this apparently impregnable wall of law was made by the Italian commentators known as the post-glossators of the thirteenth and fourteenth centuries (the chief of whom was Bartolo) when they invented the theory of the Statuus-meaning the laws and decisions of a particular country, divided into (a) those immediately connected with property and its incidents, (b) those dealing with persons, and (c) mixed. Other divisions were discussed but did not eventually survive. It is curious to note that in these discussions and divisions the statut personnel always referred to the law of the domicil, and not to that of the nationality. Among the later disputants Charles Dumoulin was perhaps the most distinguished (1500-1566), but d'Argentré (1519-90), a Breton President of the Court at Rennes, had a widespread and, as we may think, a maleficent influence in accentuating in his works the all-importance of the law of the res, with results from which we are still suffering in this country: for his theories found acceptance in Holland, and through the writings of Paul Voet, John Voet and Ulric Huter, had too ready acceptance by the jurists and judges of England. These authorities, unable to resist the force of circumstances which were becoming ever more interlaced between the nationals of different States, invented the grudging admission that the statut personnel might, when necessary, be allowed to operate by virtue of the comity of nations, an expression which was adopted in this country and made the theoretical basis of the recognition of the chief part of international private law. It is needless to argue at this time of day that this basis is unsatisfactory, even as a theory. The truth is that it is most convenient both to the normal incidents of life and to the demands of abstract justice that certain rights acquired under the system of law of one country should be recognised and enforced within the

dominions of another; and it is an idle pursuit to rummage among the dusty tomes of dead commentators for the purpose of ascertaining in great detail argumentations pro and con founded on any other basis. Let them rest. Whether their disputations hastened or hindered international intercourse on the whole is open to doubt. They meant well, and were giants in their day, and the long-deferred international results are better than the comparative isolations which the logic of the strict doctrine of sovereignty compelled and protected; but there is still much to be done, which is already long overdue, so let us leave those things that are behind and press forward to those that are before.

After this digression let us return to our muttons. England, under the lead of the Dutch writers (would that writers were always and also men of action), was at the beginning of last century certainly not in the vanguard of progress. Aliens, indeed, could by common law hold movable property other than a British ship, but it was not until the Act of 1844 (c. 66) that a statutory right was given them. Previous to the Aliens Act of 1870 no alien could hold an immovable or take by descent even an estate by the curtesy and an alien woman married to a British subject was not entitled to dower. Only since 1844 can a child born out of the King's dominions of a natural born mother take by devise, purchase, inheritance or succession. The law merchant had allowed an alien trader to hold leases of houses for personal residence and trade and this by the Act of 1844 was confirmed and extended to all friendly aliens. An alien could also dispose of his movable property by will or leave it to descend according to the law of his domicil.

But even after the Act of 1870 (c. 14) an alien is not on the same footing as a national in all respects as regards property. He is not, for instance, able to devise his British land by means of the form of will which is valid in his own country but informal by English law. Nor can he dispose of it inter vivos by a form which does not satisfy the territorial laws of England, and his capacity in all such cases is governed by the same law. Again, the Wills Act of 1861, c. 14 (commonly called Locke King's Act), passed in order to validate foreign-made wills disposing of personalty, in certain cases when they are or may be invalid by the law of the testator's domicil, only applies to the wills of British subjects; so that the will of an alien, valid by the law of the place when it was made, or by the law of his nationality, but invalid by the law of his domicil, is still invalid here. Surely it is time that our law was altered in both these defective respects.

During the centuries that elapsed previous to the French Revolution most of the questions which arose concerned the local operation of the customs of the different provinces of that kingdom, and the questions of the statuts personnels which arose concerned principally the subjects of the same king and were determined eventually by the law of the domicil. It is essential also to bear in mind that, up to the time of the French Revolution and the legislative changes which followed both in France and

other parts of Western Europe, family relations were for the most part governed by the Canon Law, a fact which obviated discussions of rights under differing systems of law.

"On the other hand, from the time that the theory of the statuts could only arise between subjects of different kings, domicil lost almost all its previous importance, yet one had to concern oneself with the tie which bound the individual to the State of which he was subject-that is to say, with his nationality." 1

It is nationality which gives the right to vote and the right to be elected, and the conditions of the acquisition of nationality became an eager subject of controversy, the solution imposed by the Code Napoléon being indeed of a reactionary tendency.

But the well-discussed terms statuts personnels and statuts réels, useful enough as comprehensive terms for juristic use, could not well be utilised in the Code: which uses, however, words comprehensive enough to cover the rights included in the former when it says in article (3): "The laws which concern status and capacity of persons govern Frenchmen, even when residing in a foreign country." It might have been expected that the law would have rather declared that the personal law of foreigners as regards status and capacity govern foreigners even in France. At any rate the law has the distinction of being the first to lay down any legislative principles on the subject. As to the statut réel, the same article says: "Immovables, even those possessed by foreigners, are governed by French law." Another novel declaration appears in the same article, viz.: "The laws of police and public safety bind all inhabitants of the territory."

It is time now to take up the expressions statut réel, statut personnel, and find out what they have come to mean after these ages of debate, remembering that the adoption of the principle of nationality by the Code Napoléon released the latter from its tie to the domicil. I do not know that I can do better than take the definitions given in Escriche's Legal Dictionary:

By estatuto real is meant the combination of the laws of a nation which govern the rights which refer to immovable property, without considering personal status or capacity." "The combination of the laws of a nation which determine the status and civil capacity of those who form part thereof is called estatuto personal." Estatuto formal means the combination of dispositions which govern the acts of one who happens to be in a foreign country." This latter is only of importance to our present purpose in that it accentuates the exclusion from the statut personnel of all elements except status and capacity, and I think I should add "condition." It is really desirable to make this addition, as foreign writers so often refer to condition as something apart from status, whereas we always include it in the meaning of status. With us, status means not only the qualities a man

1 Valery, Manuel de droit international, p. 32.

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