the mental capacity requisite therefor, and what constitutes freedom' and good faith. 1 1 Although no authority has been found for this application of the rule against the retroactive effect of laws, there seems to be no reason for making this case an exception to that rule. The existing rules would perhaps refer this question to the law of the country of the former domicil, (see notes below ;) but it is suggested by this article to permit each nation to determine, through its own laws, who shall have capacity to acquire a domicil within its territory. It has been held, that one who has abandoned his residence, and departed from the State with intent to seek a domicil elsewhere, is to be regarded as having lost his domicil in the former State, for the purposes of taxation. Colton v. Inhabitants of Long Meadow, 94 Massachusetts Rep., 598. But it is necessary, for purposes of succession and some others, to consider the character of one domicil as clinging to the person until a new one has been acquired; and an uniform application of this principle to all questions seems desirable. Falix, Livre I., Titre 1, no. 33, tome 1, p. 81; no. 28, p. 57. In Hiestand v. Kuns, 8 Blackford, (Ind.,) 345, a minor domiciled in Ohio, where the age of majority is eighteen, was held to have capacity to acquire a domicil of election at eighteen in Indiana, where the age of majority is twenty-one. It cannot be doubted, "that under those systems of law "which recognize the distinction of pupilarity and majority, a minor be"yond the age of pupilarity has the capacity of acquiring a domicil for "himself." McLaren's Law of Wills and Succession, § 12, p. 6; Arnott v. Groom, Session Cases, 2nd series, vol. IX., p. 142, 24 Nov. 1846; Erskine, I., 7, 14; Robertson, Personal Succession, p. 201; Stephens v. McFarland, 8 Irish Equity Rep., 444. It has been denied, however, that the law of his new domicil would in. capacitate him from the time of the change. Savigny, (Guthrie's Translation.) p. 125; Puchta Vorlesungen, 2, § 113, s. 251, (5th ed.) That it would, was held in Hiestand v. Kuns, (above,) following Story, Conflict of Laws, §§ 67, 69. It certainly would not, if his subsequent removal was to his original domicil. A person incapable in other respects may still have capacity to change his domicil. Concord v. Rumney, 45 New Hampshire Rep., 428; Holyoke t. Haskins, 5 Pickering's (Massachusetts) Rep., 26. 'An interdicted minor cannot change his domicil. Felix, I., p. 57, no. 28, note 2. (His reference to Voet ad Pand., Lib. 5, Tit. 1, § 100, seems not in point.) It was held, in Sharpe & Sharpe v. Crispin, Eng. Law Rep., Probate & Divorce, vol. I., p. 611, that "If a man at the time he attains his majority is of unsound mind, and remains in that state continuously up to the time of his death, the incapacity of minority never having been followed by adult capacity, will continue to confer upon the father the right of choice in the matter of domicil for his son, and a change of domicil by the father will usually produce a similar change of domicil as regards the lunatic son." Nationality not affected. 304. A change of domicil does not necessarily effect a change of national character. Natural allegiance fixes the political status of an individual, and the law of the domicil determines his civil status. By Lord WESTBURY. To suppose that for a change of domicil there must be a change of natural allegiance, is to confound the political and the civil status, and to destroy the distinction between patria and domicilium. Udny v. Udny, Law Rep., 1 House of Lords Sc. Cas., 441. Haldane v. Eckford, Law Rep., 8 Equity Cas., 631; Whicker . Hume, 13 Beavan's Rep., 401; Stanley v. Bernes, 3 Haggard's Eccl. Rep., 373, 447, (reversing Curling v. Thornton, 2 Addams' Rep., 6;) 25 Beavan's Rep., 232; Fœlix, I., p. 58, note 7; 127, note; 133, note 2; McLaren's Law of Wills and Succession, p. 11, § 21; White v. Brown, 1 Wallace, Jr.'s U. S. Circuit Ct. Rep., 265. To the contrary, Fœlix, I., p. 58, note 29; Marcy, cited Wheaton, (6th ed.,) p. 132; Heffter, (3rd ed.,) p. 109; Re Cassdeville, 33 Law Journ. Exch., 306; Attorney-General v. Blucker, 34 Law Journ. Exch., 29. CHAPTER XXIII. EFFECT OF CHANGE OF DOMICIL. ARTICLE 305. Change not retroactive. 306. Law of new domicil applies. Change not retroactive. 305. A change of domicil has no retroactive effect. Voet ad Pandect., Lib. 10, Tit. 2, § 29. Either on the domicil of the person himself, or on the derivative domicils dependent on his. Allen v. Thompson, 11 Humphrey's (Tennessee) Rep., 538, 539; Bell v. Kennedy, Law Rep., 1 Scotch Appeals, 321. Law of new domicil applies. 1 306. Upon a change of domicil, the law of the new domicil has thenceforth the like effect upon the person acquiring it as the law of his preceding domicil had theretofore produced.' 1 Fælix, Droit Intern. Privé, I., no. 28, p. 58, and note 2. 2 Story, Conflict of Laws, § 69. TITLE VIII. NATIONAL JURISDICTION. ARTICLE 307. "Jurisdiction" defined. 311. Conflict of concurrent jurisdiction. 313. Limits of exercise as to foreigners. 314. Foreign military and naval forces. "Jurisdiction" defined. 307. The jurisdiction of a nation is its authority to govern, whether by legislative, executive or judicial power. It is either: 1. Territorial; or, 2. Extra-territorial. Territorial jurisdiction. 308. The territorial jurisdiction of a nation extends over all the places within its geographical limits, as defined by Chapter IV., on TERRITORY. Extra-territorial jurisdiction. 309. The extra-territorial jurisdiction of a nation, exclusive or concurrent, extends over the following places: 2 1. All the land or water included within the lines of its fleets or armies,' exclusive in respect to its own members, and concurrent with that of the nation owning the territory, in respect to members of that or of any other nation; 2. All ships bearing its national character, exclusive' except in the case of a private ship within the limits of another nation, and in that case, concurrent with such nation; 3. All territory discovered or colonized by the nation, as provided in title II., on EXTRA-TERRITORIAL ACTION, to the extent of its occupation thereof, as therein defined; and, 4. All places occupied by its marine telegraphs, lighthouses, buoys, and other structures or property, not within the territory of any other nation, for the purposes of protecting such property and structures, and redressing injuries thereto. 1 Phillimore's Internatioual Law, 215. 2 This qualification is obviously necessary. 1 Phillimore's Int. 3 As to public ships, the jurisdiction is exclusive. Law, 367; The Santissima Trindad, 7 Wheaton's U. S. Supreme Ct. Rep., 283. The restriction to ships of war, made by the language of some au thorities, it does not seem desirable to retain. Exceptions in the case of prize are reserved, to be treated in the Book on WAR. * In this article a ship is regarded as a place, although vessels at sea are no longer considered as part of the territory of a nation. The flag protects nothing but the vessel, and only designates to what portion of the globe she belongs. Jurisdiction over what is on board ship is, therefore, extra-territorial. Johnson v. Twenty-one Bales, &c., 2 Paine's U. S. Circuit Ct. Rep., 601; S. C., 6 American Law Journal, 68. 51 Phill. Int. Law, 373; The Exchange v. McFadden, 7 Cranch's U. S. Rep., 116. To the contrary, Mahler v. Transportation Co. "Law of place" defined. 310. The expression, "law of place," as used in this Code, signifies the law of the nation or State' within whose jurisdiction,' territorial or extra-territorial, for the time being, the transaction is had,' or the subject exists. 1 A question may arise here as to the proper rule to be applied on a question on which the local and the national or federal tribunals are at variance, as is the case upon some subjects of commercial law in the American courts. 'The definition is not limited to the exclusive jurisdiction, as there is a small class of cases in which the jurisdictions are concurrent, yet do uot conflict. The case of conflict is provided for by the next article. There is another qualification which, according to some authorities, should be added, viz., that which was the law at the time of the transac tion. But it should seem that the effect of a change in the law is a mu nicipal and not an international question; and this article leaves the ef fect of a change of the law of place to be determined according to that law. Conflict of concurrent jurisdiction. 311. In case of a conflict in the exercise of concurrent jurisdiction, as defined in article 309, the territorial jurisdiction is paramount to the extra-territorial, except where otherwise provided in this Code. Persons attached to a foreign public ship do not by landing come under the territorial jurisdiction. Wheaton's Elements of International Law, v. 1, pt. 2, ch. 2; Ortolan, Régles Int. et Dipl. de la Mer, v. 1, 195. Subjects of jurisdiction. 312. The jurisdiction of a nation extends to the following subjects: 1. To all persons and things in the places subject to its jurisdiction, territorial or extra-territorial, except as otherwise provided in this Code; 2. To its own property in other places, except as otherwise provided in this Code; 3. To all its own members and their property in any other places, in the cases provided in this Code, and in no other; 4. To the regulation of all transactions completed within its limits between living persons; and, 5. To the regulation of the devolution, at death, of all the movable property of all persons domiciled therein at the time of their death. Limits of exercise as to foreigners. 313. The jurisdiction of a nation, so far as it affects foreigners or foreign nations, is to be exercised subject to the provisions of this Code. Foreign military and naval forces. 314. In the case of military or naval forces of one nation occupying, or in transit through, the territory of another nation, by the consent of the latter, the jur isdiction of the former over the members of such forces is subject to the conditions of the consent. . 11 |