International In Civil and Criminal Legislation, as well as in the compilation of Rules for the institution and settlement of judicial questions (ordinatoria lites), every State has made certain provisions, establishing the principles on which the lawcourts of the State shall treat questions regarding the conflict occasionally arising between the laws which govern transactions in foreign countries and those of the State interested in the same matter or affair. The International usages regarding conflicts of Law are sketched in Chapter X, which treats of Private International Law. The Right of Legislation and Jurisdiction possessed by a Sovereign State extends over all persons within its territory, with the exception of those cases in which the claims of jurisdiction on the part of another State operate within its territory; such as in case of exterritoriality, granted by treaty or capitulation, or through common usage of International Law. These exemptions and privileges are: 1st. To the reigning Sovereign or First Magistrate of another State and their respective suites, whilst temporarily residing within its territory on an amicable visit. 2nd. To representatives of foreign States and to the members of their legations. 3rd. To Vessels of War of friendly Powers entering its territorial waters. 4th. To armed forces of a friendly Power passing through the territory of a State, with the expressed or implied consent of the latter. 5th. To Foreign Merchant Vessels and their crews, in cases expressedly stipulated by treaty, or by comity, in conformity with International Usages (Compare §§ 45-49). * STORY. Conflict of Laws. §§ 5375-55. WHEATON. Elem. Int. Law. Ed. Dana, Part II. Ch. II. WESTLAKE. Priv. Int. Law. Ch. V. and VI. PHILLIMORE, Com. Int. Law, Vol. IV, 39 . CHAPTER IX. JURISDICTION OF PERSONS. DETERMINATION OF NATIONALITY. Nationality. al Nationality. § 39. Nationality is called Natural or Tribal, Determination of when the term is applied to individuals of the Natural or Tribsame origin, race, people or nation, from an ethnographical or philological point of view. Nationality is called Political, when regard is had to the subjects or citizens of a State as Bodypolitic. When different peoples or nations are united into one State, individuals of the different Natural Nationalities have all the same Political Nationality of the State. Hence the Nationality which constitutes an object of International Law, is the Political Nationality, or Political Citizenship, which can be lost and acquired through acts of legislation. ality. Political Nationality is acquired: 1°., by birth, Political Nationthat is, from the nationality of the parents (not from the mere accidental place of birth). This is termed Original or Native Nationality; 2°., by law, called Naturalization. The mere place of birth does not, per se, establish nationality, but the Nationality Laws of several States give to the place of birth such legal influence, that the individual, accidentally born in their territory or within their jurisdiction, though from foreign parents not domiciled there, has the right to declare, within a certain time after having reached his majority and become sui juris, that he will take the nationality of his place of birth, and on this declaration, when accompanied by actual domiciliation, he is then regarded as a Nationality of subject or citizen of the State, with complete possession of Political Nationality. Married women follow the nationality of their husbands. Children born from married parents follow the nationality of their father, but illegitimate children (those whose parents are not married) follow the nationality of the mother. When such children are made legitimate, they follow the nationality of the father, provided the legitimation takes place when they are yet minors; but if they are made legitimate at a time when they are already of age, they can choose their nationality for themselves. Foundlings, whose place of birth cannot be proved, follow the nationality of the corporation or persons by whom they are adopted. Political Nationality, is, in connection with International Law, the first phase of the personal status of an individual and remains attached to it as the predominating quality of this status, wheresoever the individual may be found, (§51). Political Nationality implies National Allegiance, which is, in connection with domiciliation, noted in the next section. The jurisdiction of a State includes all individuals living within its territory, whether subjects or foreigners. Under the term subject or citizen (civis) of a State, are comprehended all persons possessing the political nationality of the State, whether originally or through naturaliza tion. § 40. Besides the Political Nationality, which comes from the State, to which an individual owes national allegiance, through birth or naturalization (as noted in the foregoing section), and from which he expects proper protection in his lawful pursuits of life, abroad as well as at home, there is another form of National Character which is acquired by domiciliation, without the loss of political nationality, and is called Nationality of Domicile. Domiciled Inhabitants (subditus temporalis) are those who, although not having renounced allegiance to their native or original State, have ceased to reside there and have taken a permanent abode in a foreign country, forming a class of inhabitants, with regard to civil rights, between the subject or citizen and the alien. From this Nationality of Domicile results a temporary allegiance to the Municipal Laws of the Domicile, termed local allegiance, but which ceases the instant the individual leaves the State in which his domicile is situated. Although this Local Allegiance does not supplant the allegiance which results from the Political Nationality, which is termed national, original or native allegiance, yet, as most questions of private rights to property or of commercial or political privileges and exemption, whether in peace or war, are, in the first place, tested by the fact of domicile and not by nationality and, moreover, by the strength of the enfranchisement granted, and the obligations which the privileges of denizenship (jus indigenatum) involves, with regard to the Municipal Laws of the Domicile in a Foreign State, the Nationality of Domicile must of necessity suspend the claims, which the individual has on the protection of his native State, to a not inconsiderable extent, as long as this state of domiciliation abroad does last. This claim for protection from the native country can even lose all ground, if brought to bear against the Government of the domicile, when the individual, though not being naturalized in his newly adopted country, has established himself there in such apparently permanent manner as to show an intention of never returning to his native State (sine animo revertendi). An individual settled in this manner in a foreign State during a war to which his native State is a party, shares the fate of the hostile or neutral character of the foreign country in which he has fixed his domicile. * From the foregoing it is obvious that the decision of what is to be regarded as the legal domicile of an individual is of the utmost consequence. There are various definitions of the term domicile, but all agree so far that the Legal Domicile of an individual is the particular place of his principal abode and home and the chief seat of his affairs and interests, established with intention to remain there for an unlimited time, whether this place is situated in his native State or in a foreign country. The principal criterion of Nationality of Domicile consists in this, that the residence at a particular place be accompanied by the intention. to remain there for an unlimited length of time. This intention is proved by positive declaration, combined with corresponding acts, or, where no such declaration has been made nor avowal of intention exists, in deducing the intention from the following circumstances and facts: 1o. Acquisition of property and investment of capital in real estate or in vessels sailing under the flag of the State of domiciliation. 2o. Resident establishment. 3°. Occupation; character of trade, commerce and business relations. 4°. Time of residence. * HALLECK. Intern. Law. Vol. I. Chap. XII. WHEATON. Intern. Law. Edit. Dana. Note 49, on § 85, page 142. † PHILLIMORE. Law of Domicile. §§ 11-16. HALLECK. Intern. Law. Vol. I. Chap. XII. |