in the 16th century, under d’Argentré, it acquired its most developed form, absorbing all laws into one or other of the two classes, and giving a vast extension to the real class, for which was claimed exclusive application to immovables situate in the territory of the law. In accordance with this system, the highly feudal character of which was very sympathetic to English jurisprudence, English practice has refused to include English immovables in the mass to be dealt with as a unit on marriage or death. But it refers the validity and operation of a marriage settlement, at least as to movables, and the effect of marriage, in the absence of express contract, on the movable property of the husband and wife, to the law of the husband’s domicile at the time of the marriage, called the matrimonial domicile. And with regard to the succession to movables on death, it adopts the principle of massing them irrespectively of their situation, so far as is permitted by the peculiar system under which the property in movables situate in England does not pass directly to the legatees or next of kin, but to the executors or administrators, who are charged with the duty of paying the debts of the deceased and distributing the beneficial surplus. The validity of a will of movables, otherwise than in respect of form (about which more hereafter), and the rights, whether under a will or under an intestacy, in the beneficial surplus arising from them, are determined in England by the law of the testator’s last domicile. On the points glanced at in this paragraph the decisions in the United States generally agree with those in England, only allowing the pecuniary relations of a married couple, in the absence of express contract, to be varied by a change of domicile, notwithstanding that such change is in the husband’s exclusive power, instead of maintaining them as fixed by the matrimonial domicile. On the continent of Europe partisans of a variation after the marriage are scarcely to be found; but as between the nationality and the domicile of the husband or of the deceased, and on the question whether the mass to be governed either by nationality or domicile, on marriage or on death, includes immovables situate under a different law, the division of opinion, legislation and practice is considerable and intricate.
Lex situs, lex loci actus, lex loci contractus, lex fori.—The law of the territory in which they are situate (lex situs) is generally applied to the property in particular things, whether movable or immovable, so far as they are not included in any mass grouped round a person; in England, therefore, always to immovables. In drawing up documents and conducting ceremonies public functionaries must necessarily follow the law from which they derive their authority, wherefore the law of the place where any public document is entered into, or any public ceremony performed (lex loci actus), is the only one that can be followed in its external form. This maxim applies to the forms of notarial acts, and to that of marriage celebrated with the official concurrence of clergymen, registrars and so forth. And since documents and ceremonies entered into without official concurrence are rarer on the continent of Europe than in England, the inevitableness of the form of the lex actus, when such concurrence is had, has generally led to that form being also held sufficient whenever the affair comes to be inquired into later. Nor in England has the sufficiency of the form of the lex loci actus for the celebration of marriage ever been doubted, but a will made by a notarial act in accordance with that law was not admitted. Disregarding the distinction between external form and internal validity and operation, a will of English land could not take effect unless made in English form (that is, since the Wills Act of 1837, with two witnesses), and a will of personal estate could not be admitted in England to probate unless made in the form of the law of the testator’s last domicile. But now, by Lord Kingsdown’s Act, passed in 1861, there are given for wills of personal property made by British subjects, besides the form of their last domicile, three alternative forms, namely, the form of the place of making the will, that of the testator’s domicile at the time when it was made, and that of the part of the British dominions where he had his domicile of origin—only the first of the three, however, being offered when the will is made in the United Kingdom; and no will is to be revoked or invalidated by a change of the testator’s domicile after making it.
The law of the place of contract lex loci contractus, is distinguished into that of the place where the contract is entered into, lex loci contractus celebrati, and that of the place where it is to be performed, which, from the particular case in which the performance consists only in a payment, is called lex loci solutionis. To the first of these is generally referred the formal validity of a contract, so far as entered into without the intervention of a functionary, and therefore not covered by the principle of the lex loci actus, and so far also as the performance is not tied to any particular place. For example, the form for contracting marriage, whether with official intervention as in England, or by private and even oral contract as in Scotland, depends, both as to necessity and as to sufficiency, on the law of the place of contracting it. But as to the internal validity, interpretation and operation of a contract, there has been and still remains much difference of opinion between the laws of the place of contracting and of that of stipulated performance; the former being supported, among other grounds, on some texts of Roman law which Savigny has shown to have been misunderstood, while the latter agrees much oftener with the intention of the parties. The English decisions do not adhere closely to either of those laws, but while repeating much of the traditional language about the lex loci contractus, they aim at doing substantial justice by referring a contract to that place with which its matter has the closest connexion, or which the intention of the parties points out.
In matters of legal procedure every court follows its own practice exclusively (lex fori), as, for instance, whether the remedy on a contract shall be damages or specific performance, and whether a judgment may be executed against the person or only against the property of a party. A point much disputed under this head is whether the time of limitation of actions shall, as held in the United Kingdom, be decided by the lex fori, as an incident to the procedure, or by the lex loci contractus in one of its varieties, as an essential modality of the obligation.
Renvoi.—We will now suppose that the rules of private international law, as practised in any country (A), refer a case arising in its courts to the law of another country (B), as being that of the domicile or nationality of a person, and that those rules as practised in (B) in turn refer (renvoient) the same case to the law of (A), as being that of the nationality or domicile or perhaps of the locus actus: what are the courts of (A) to decide? This question, which involves nothing less than that of the meaning in which the reference to a law is to be understood in our subject, has during recent years excited great discussion both among the jurists and in the courts of all nations. It is answered by the English courts to the effect that (B) by its reference back (renvoi) has disclaimed the control of the case, which must therefore be decided without regard to (B)’s particular laws. See In re Trufort, 36 Ch. D. 600, and In re Johnson, 1903, 1 Ch. 821. This principle practically gives efficacy to the renvoi, and coincides with the express provisions both of the above-mentioned convention of the 12th of June 1902, Art. 1, as to the right of contracting marriage, and of the statute enacting the German code, Art. 27, as to capacity generally. The English law agrees in opinion, and is supported by a numerical preponderance of the judicial precedents in France and Belgium; but it must be admitted that a numerical preponderance of the jurists who have declared themselves hold that the courts of (A) ought to apply the particular laws of (B).
Public Order.—It must not be supposed that the law of the land, the proper territorial law of the court which has to deal with a case in which foreign circumstances arise, always gives way to the foreign law pointed out by the general maxims which even that particular court accepts. All rules for the application of foreign laws are subject to an exception commonly called that of public order, i.e. where such application would interfere with essential principles of morality or policy received in the territory. This reservation is usually made in general terms where legislation on private international law is attempted, as in Article 6 of the Code Napoleon, and preliminary Article 12 of the Italian code; but the courts have to administer it, as they have also in England and other countries where it rests only on judicial practice, and the greater or less extent given to it is one of the causes of the uncertainty and want of uniformity in our subject. One example often quoted is the refusal of the courts in all Christian countries to give effect to polygamous marriage, but this case goes deeper still, for none of the countries in which polygamous marriage exists is allowed to enter at all into the communion of private international law. All, so far as Great Britain has settled legal relations with them, are among those in which British subjects live under consular protection and jurisdiction, or (in Egypt) under that of the Mixed Courts. A better instance is afforded by the refusal of courts, normally within the pale of European legal communion, to recognize divorce as dissolving a marriage, notwithstanding that it has been decreed under the personal law. As another instance,