*

I, 1904. Those of the others are confidently expected at

an early date.

As between the seven powers (Germany, France, Sweden, Holland, Belgium, Roumania and Luxembourg) the conventions became of force by their terms (Art. 10 making this dependent only on the action of a majority) on August 1, 1904.

In May, 1904, pending these ratifications, a fourth conference met at the Hague, called by Holland pursuant to the recommendation of that of 1900. This took up again for consideration the other conventions approved by the conference of 1894 as to bankruptcies and successions; and the further avant-projets submitted to the latter on bankruptcies, and on the effects of marriage and divorce on the rights of the parties. The subject of lunacy and its effects was also considered, and the sessions of the conference lasted through the greater part of June. The convention on matters of civil procedure which was already in force was also revised and certain amendments adopted, which the five years' practice under it seemed to render desirable.

The final outcome of the conference of 1904 was, beside this revision, the proposition of four new conventions: on succession, bankruptcies, the relations between husband and wife established by their marriage, and lunatics.

The convention as to civil procedure, if amended as proposed, will effectually settle the mode of service of process to subject non-resident defendants to the jurisdiction of the courts; the manner of bringing suits by foreigners; the execution of foreign judgments; and the methods to be pursued under rogatory commissions to take evidence. Among other things, it will sanction the service of citations on subjects of the power under whose authority they may be issued, made in another country through the diplomatic or consular representatives of the former.

Several of the proposed amendments were adopted with a view of preventing occasion for any injustice from the service of process from the courts of one country within its territory on subjects of another who may be transiently found there, when this service is in aid of pending proceedings in the courts of their own nation, as in the case of an inquest to take evidence as to a state of facts. One of those who participated in the * Clunet, Journal de Droit International Privé, for 1904, No. V-VI,

P. 746.

conference of 1904, and is well qualified to judge, has summarized the general result in these respects as adapted in its present shape to elevate the administration of international justice by its very wide extension of the duty of one power to extend legal help to those claiming rights under foreign laws.*

The conventions on successions, marital relations and lunatics, are all bottomed on the application of the law of a party's nationality.

England and the United States have always stood for the law of domicil or that of the seat of a transaction, as the proper rule for regulating the rights of a person or the effects of a legal act. The person whose relations may be in question may thus freely select the applicable law; for he may change his domicil at pleasure, and enter into contracts or do a noncontractual act, wherever he thinks proper.

Italy has been equally persistent in maintaining the right of his own state to dictate the applicable law. Her jurists have rejected the principle of freedom of personal choice for that of national subjection. A man may, indeed, under the present rule of international law, change his nationality, without the express consent of his sovereign; but they declare that so long as it is unchanged he is subject to its laws, and when changed he is subject to the laws of his new nationality, whatever may be the place of his domicil.

While Germany was a loose confederation, she adhered to the Anglo-American view, and for similar reasons. Her present imperial constitution and her imperial code of 1900, with its centralizing provisions,† have now made it her policy to prefer nationality.

The other continental nations represented in the conferences agreed on the same view, and it has thus now become (though with certain exceptions) the general law of Europe.

The convention on successions has also departed widely on another point from the principles of Anglo-American law.

It disregards the distinction between real and personal estate, or moveables and immoveables; and upon the death of the owner of property sends it all, whatever be its character, to * Meili, Das Internationale Civilprocessrecht auf Grund der Theorie, Gesetzgebung und Praxis, (Zurich, 1904) 434, 435.

+ See Sec. 3 of the law of introduction to the Civil Code.

those (subject to certain minor exceptions) to whom the law of his nationality would give it.

Professor Jitta of the University of Amsterdam, in discussing the results of these four conferences before the Universal Congress of Jurists and Lawyers, which met in St. Louis in September, 1904, expressed the opinion that they were but the beginning of a great work-namely, the formation of an international union in Continental Europe for the codification of private international law. But whether England or the United States could be expected to become parties to such an organization, he justly considered as a matter of grave doubt. For the American powers, other than the United States, the road would be easy. Their jurisprudence rests on a different foundation, and one quite similar in its nature to that underlying the laws of most of the powers who were parties to the Hague conferences.

The four conventions, emanating from these conferences, which are already in force, have but an indirect or slight effect on property relations. Those now coming from the same source have a direct and great effect in that direction. If the work of the conference of 1904 be ratified by the legislative departments of the powers represented, it will determine for their people the rights of husband and wife in each other's property, the devolution of the estates of the dead and the settlement of those of bankrupts.

The regulating principle of nationality is one easy to apply. If a Frenchman dies leaving property, whether real or personal, in Roumania or Sweden, it will be distributed precisely as if it were situated in France and subject to the control of French law as administered by French courts. No will can be treated as operative in one country or as to one kind of property, and inoperative in another country or as to another kind of property. Heirship to land will be controlled by the law of the ancestor's nation; not by that of the country in which the land many lie. Title to a bankrupt's land will pass to his assignee in bank. ruptcy once for all, by a conveyance which will be sufficient, if it be such by the laws of his own nation.

These are the general principles which will control, though they are made subject to certain exceptions, and in carrying them out ancillary local assurances or decrees will in practice often be required.

This merger of land in the general mass of a man's property,

however foreign to Anglo-American law, is in accord not only with the general theory of Roman law, but with the prevailing tendencies of our own time, throughout the world.

When rights in land put their possessor in a higher position in respect to his political relations or vitally affected his civil status, there was a reason for making the mode of its devolution depend in all particulars on the will of the sovereign within whose territory it lay. So long as it was the chief part of every large estate, there was a further reason for requiring special safeguards in case of transfer or succession. But the landed aristocracies are fast following feudalism into decay and oblivion. The great fortunes of the modern world are mainly invested in corporate securities. Corporations are also, as respects business property, the largest land owners. They are at the same time bcoming citizens of the world. Their ships traverse all waters. Their commercial paper constitutes the bulk of the exchanges by which international trade is carried on. Their securities are held in countries remote from each other. If they become bankrupt, the interests of citizens of ten or twenty different nations are often affected. Their real estate they virtually, so far as its ownership is concerned, turn into personal estate, for it is represented by the shares of stock.

It would be difficult for England and the United States to acknowledge the force of these conditions of modern society so far as to induce them to surrender their long-cherished and farreaching distinctions between real and personal estate. It cannot, however, be pronounced impossible; and stranger things have happened in the development of political institutions, than would be the ultimate accession of these powers to the principles of these Hague conventions. It is hard for two nations, however great, to stand up against the world for traditional distinctions that have struck no new roots into the earth of to-day.

So far as the principle of nationality is concerned, as opposed to the rule of domicil, its incorporation into AngloAmerican law would require the surrender of much less.

In its application to the United States it would be necessary, as our law now stands, to treat each State as a nation to which its citizens belong, within the meaning of any such conventions.

Possibly the United States, under their treaty powers, could go farther than they have ever yet gone, and impose upon all their people a general nationality with certain consequences as to successions, bankruptcy and the marital relations. It would be, except quantitatively, no greater interference with State

rights than treaties giving aliens a right to succeed to real estate in any State, despite its laws to the contrary; and such treaties have been in force for a century and received the sanction of the Supreme Court of the United States. But the same result could be measurably attained in the manner first suggested.

This would be in line with the construction given to our extradition treaties. These provide for demands upon a foreign country by the executive department of the United States for the surrender of those who have committed criminal violations of the laws of this country. Such a treaty would be of little avail if it did not cover violations of State laws, for ninety-nine out of a hundred crimes are acts of that character, and are not cognizable by the federal courts. The American courts, therefore, at least, construe "country" as including the several States, respectively, as well as the United States as a whole.*

In many of the treaties of the United States with foreign powers similar language is used in other connections, which must be given the same meaning and effect in order to secure the accomplishment of its plain purpose. Thus, Article VI of our treaty of 1850 with the Swiss Confederation provides that any controversy between claimants to the same succession, as to whom the property shall belong, "shall be decided according to the laws and by the judges of the country in which the property is situated." It would be absurd to hold that this referred simply to our federal laws and federal courts. The provision obviously contemplates a reservation of jurisdiction to the State courts, as to all matters to which State laws apply; and a similar right would belong to the judiciary of the several Swiss cantons, as to property situated in any of them, title to which was not regulated by the general laws of the Confederation.

It is also to be considered that the present restrictions on naturalization in, as well as on emigration to, the United States, decrease the number of cases in which it might be inconvenient to regulate rights claimed under or against a foreigner by his own national law, rather than that of his domicil. The present immigrants are of a superior class as compared with those of the preceding generation. It is less difficult to determine their nationality, and our means of knowledge of foreign laws are much improved.

*Wright v. Henkel, 190 U. S., 40, 58-61.