of the place in which the acts were made, or, if the parties contracting are foreigners and belong to the same nation, by their national law. This is subject, in every case, to the exception of a different intention being shewn. Italian Code, Preliminary Article 9.

In order to show the mode in which the subject is treated in the Italian code, I have repeated here, in the place which it occupies in the original, the clause about donations and last wills which I have already taken in connection with the article on successions. With regard to the substance and effects of obligations, the chief discussion has been whether they are to be governed by the law of the place where the contract is made, lex loci celebrati contractus, or by that of the place where it is to be performed, often called, from a special though very common case, lex loci solutionis. The term lex loci contractus is sometimes used to include both, though it more properly describes the former. The importance of the distinction is much. smaller than it would seem to be at first sight, because it is admitted on all hands that when persons sui juris contract with one another, their intention is the main thing to look to. The Italian article decides for the lex loci celebrati contractus as the rule, while taking full note of the paramount importance of the parties' intention. It also varies the rule itself, in favour of the personal law of compatriots contracting abroad; and certainly there is a much stronger presumption that in such a case the home law was tacitly referred to, than the law of the place where the contract happened to be made. But this part of the clause is specially important with regard to the effect of marriage on property, the consideration of which was postponed in order that it might be taken in connection with it.

The matrimonial domicile is that in which, at the time of the marriage, the consorts expect and intend to live together. It will therefore be in general the domicile of the husband at the time of the marriage, though perhaps, if it were agreed between the parties that the husband should adopt another domicile immediately after the celebration, and he adopted it accordingly, such agreed domicile might be considered the matrimonial domicile. Now it has been generally held that the law of the matrimonial domicile governs, at least in the first instance, the effect of the marriage on the movable

property of a couple who marry without express contract; but it is among the moot points of private international law whether it should continue to do so after a change of domicile, and whether, if the law of the new domicile operates at all, it should govern all the movable property of the consorts, or only the portion acquired after the change. It is also a moot point whether the law of the domicile has any effect on the immovable property of the consorts, or whether this is left to the operation of the lex situs. Those who teach that the law of the matrimonial domicile is introduced by a tacit agreement between the consorts naturally extend it to immovables, with regard to which there is quite as much reason for inferring an agreement as with regard to movables: they also naturally repel any operation of the law of a substituted domicile, which, as it could not have been foreseen, could not have been comprised in the agreement. Those on the other hand who, instead of inferring intention, seek in the absence of express contract to base the decision on positive rule, generally repel any operation of the law of the matrimonial domicile on immovables, because they are led to that law by the maxim mobilia sequuntur personam; and their principles are not without a tendency to let in the law of a new domicile, and this for the movables acquired as well before as after the change. The exclusion of immovables from the operation of the matrimonial law of the domicile prevailed in the middle ages, and is still maintained in England. How the system of implied contract arose, especially in France, has been glanced at in the introduction. All that needs here be added is that, since agreements belonged to the jus gentium and not to the jus civile, the foreigner domiciled in France was capable of them, and, on his marriage, it was generally held, on the ground of implied contract, that community did or did not arise between him and his wife, according to the law or custom of his French domicile.* Since the enactment of the Code Napoleon, it is doubtful whether the matrimonial law of property in the case of a foreigner domiciled in France, either with or without the authority of the government, is that of France, or that of his political nationality.†

Demangeat, lib. cit., p. 153-5.

† See Journal du Droit Int. Privé, t. 2, p. 425 ; t. 5, p. 596.

It can scarcely be doubted that, in the view of the Italian code, the effect of marriage on the property of the consorts is to be determined, in the absence of any express contract, on the ground of an implied one, by the personal law of the husband, for immovables as well as for movables, and for property acquired after as well as before a change of domicile. Indeed this was probably the instance which the framers of the code had chiefly in mind, when they laid down the common national law of two foreigners contracting, as the prima facie indication of their intention with regard to the substance and effects of obligations. The wife, even were her nationality different before the marriage, would naturally be treated for this purpose as having the same law with her husband, whose nationality she acquires by the marriage.

The Austrain Code has these provisions.

§ 36. When a foreigner enters in this country into a transaction with a citizen from which reciprocal obligations arise, such transaction is to be judged without exception according to this code: but when he contracts with another foreigner, the transaction is only to be judged according to this code when it is not proved that another law was contemplated at the time of the contract.

§ 37. When foreigners enter into transactions abroad, either with foreigners or with subjects of this state, such a transaction is to be judged according to the law of the place where it was concluded, so far as it is not apparent that it was based on another law at the time of concluding it, and the provision above contained in § 4 [see p. 29. J. W.] does not oppose.

Judicial Proceedings.

1. Competence and forms of procedure are governed by the law of the place where the court sits.

2. The means of proving obligations are determined by the laws of the place where the act was made.

3. Judgments pronounced in civil matters by foreign authorities shall receive execution in the kingdom, when they have been declared executory in the forms established by the Code of Civil Procedure, saving however the dispositions of international conventions.

4. The modes of executing acts and judgments are governed by the law of the place where their execution is proceeded with.

Italian Code, Preliminary Article 10. The clauses of this article are not numbered in the code.

The first clause expresses a doctrine received in all countries. It is that of the lex fori, but is sometimes grouped under the lex actus,

together with the doctrine relating to the forms of other than judicial acts.

The second clause excepts from the lex fori, and refers to the lex loci contractus, all rules relating to the mode of proof, such as are contained in the English statute of frauds. It has been, and in other countries than Italy still is, a much controverted point, under which law such rules should fall,

The third clause gives the force of res judicata to foreign judgments in personam, by admitting them to be executed in Italy without any reexamination of the merits of the cause. The Code Napoleon contains nothing express on this point, and for a considerable time after its enactment the prevailing opinion was that the matter was still governed by Art. 121 of the ordinance of 1829 (see above, p. 26), and that consequently a Frenchman could require the merits of a foreign judgment to be reexamined, while against a foreigner the judgment of a foreign, but competent, court could be put in force in France without opening the door to a renewed contest on the merits. Now however the opinion prevails that a reexamination on the merits can be claimed in France even by foreigners.

The fourth clause, like the first, is of universal reception. In fact both these clauses deal with the action of constituted authorities, judicial in the case of the first, judicial or other in that of the fourth, and it is plain that a constituted authority must follow, as to its mode of action, the law of its constituent authority.

Penal and police laws.

Penal laws, and the laws of police and public security, bind all those who are found within the territory of the kingdom. Italian Code, Preliminary

Article II.

The doctrine of this article also is universally received. The Code Napoleon has :

The laws of police and security bind all those who inhabit the territory. Art. 3.

Reservation in favour of stringent domestic policy. Notwithstanding the dispositions of the preceding articles, neither the laws acts or judgments of a foreign country, nor private dispositions or contracts, can

in any case derogate from prohibitive laws of the kingdom concerning persons property or acts, or from laws which in any way whatever regard public order or good morals. Italian Code, Preliminary Article 12.

Correspondingly the Code Napoleon has :

Private contracts cannot derogate from laws which interest public order or good morals. Art. 6.

Some reservation of this kind is in theory inevitable. It merely amounts to saying that, just as there are nations, like the Turks or the Chinese, whose views and ways are so different from ours that we could not establish at all between them and us a system of private international law, by which effect might as a general rule be given in Christian states to their laws and judgments, so, between Christian states, differences of views and ways may exist which may necessitate exceptions to the general rule of giving effect to their laws and judgments. Thus, even while slavery existed in certain Christian countries, the rights arising out of it were very rarely recognized in those Christian countries where it did not exist. Now however the most important practical effect of the reservation is the non-recognition of foreign divorces in countries where a religious objection to divorce is entertained.

Rights of Foreigners.

Foreigners are admitted to the enjoyment of the same civil rights as citizens. Italian Code, Art. 3.

The rights which an alien enjoys in any country more properly belong to the law of that country, as such, than to the system which it follows with regard to private international law, considered as the choice of a law to judge by. Thus the incapacity of aliens to hold English land in fee, now abolished, was a part of English law, and might have been so all the same, even though the English courts had held that the effect of marriage on English land, so far as any one could acquire rights in it, was governed by the law of the matrimonial domicile instead of by the lex situs. But the subject deserves mention in a treatise on private international law, because any incapacity of aliens existing by the lex fori must be