Page:Popular Science Monthly Volume 52.djvu/372

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an unjust system now set up in its defense is not a theological one, but that personal property (more especially what is termed in law choses in action, or credits, titles, notes, bonds, mortgages, which are in their nature incorporeal, and therefore invisible and intangible) has no situs away from the person or residence of the owner, but is deemed to be present with him at the place of his domicile.[1]

This rule or fiction of law originated, according to Savigny, in Rome, and acquired the designation of "mobilia personam sequunter"; but its applicability to property was never held to extend beyond Roman territory. Subsequently it became a device of international comity, which the Supreme Court of Vermont (Catlin vs. Hall, 12 Vermont, 152) has declared was subsequently "adopted from considerations of general convenience and policy, and for the benefit of commerce"; and which, according to every principle of common sense and equity, was never invented with a view of its being used as a rule to govern and define the application and scope of taxation, or was intended to have any other meaning than that for the purpose of the sale, distribution, and other disposition of property any act, agreement, or authority which is sufficient in law where the owner resides shall pass the property in the place where the property is; and more especially to facilitate the distribution of decedents' estates, by enabling parties to dispose of their property without embarrassment from their ignorance of the laws of the country where it is situated.[2]

How comparatively recent, moreover, has been the extra-territorial application of the rule or principle under consideration to taxation, is shown by the fact that the first English colonists and lawmakers who came to America do not appear to have brought with them any of the narrow and illogical views which have characterized their descendants. Thus, for example, one of the earliest laws of the Massachusetts colony reads as follows: "No man shall he rated here (Massachusetts) for any estate or revenue he hath in England, or in any forreine partes, till it he transported thither." (Massachusetts Historical Society Collections, vols, vii and viii, page 213.) And in the first provincial codes of Pennsylvania especial care was taken to confine taxation to land, and a very few articles of personal prop-

  1. This subject, from its modern and strictly legal aspect, will be discussed hereafter.
  2. "No fiction," says Blackstone, "shall extend to work an injury; its proper operation being to prevent a mischief, or remedy an inconvenience, which might result from the general rule of law." At any attempt to misapply a fiction, it falls within, and is terminated by, that other authoritative maxim of logic and the common law, cessante ratione legis, cessat ipsa lex. Another great authority in law, Lord Mansfield, says: "Fictions of law hold only in respect of the ends and purposes for which they were invented; when they are urged to an intent and purpose not within the reason and policy of the fiction, the other party may show the truth."