man was in the same position as a foreigner, the decision becomes an authority for the proposition that where an Englishwoman has married a foreigner in England, a decree relating to the marriage, obtained, without collusion or fraud, from the proper matrimonial tribunal of the foreign country in which the husband has his domicil, must be recognized as valid by the Courts in England. The domicil must be a bona fide one (d), and the country, it seems, a Christian country (e). This decision was acted upon in the late case of Turner v. Thompson (f), where a form of marriage having been gone through in England between an Englishwoman and an American, the parties went to reside in the United States, and there a decree dissolving the marriage on the ground of incapacity was pronounced by the Supreme Court of Columbia-the form of the decree being a dissolution, and not, as in this country, a declaration of nullity. It was held that the marriage was totally and absolutely dissolved by the American decree.] [(d) Per James, L.J., L. R. 6 P. D. at p. 47. CHAPTER XXIII. PATERNAL RIGHTS. DXXII. THE next question arising from the relations of Family is that of the Patria Potestas, or Paternal Rights (a). The continental nations of Europe recognize an extent of Paternal Power, derived from the Roman Law, which is unknown to the Common Law of Great Britain and of the United States of North America; and this fact is used by Mr. Justice Story as an argument for adhering to the rule, that in the case of marriages the lex loci contractús shall prevail. DXXIII. The Paternal Power is to be considered with respect to With respect to the Person, the Private International Law of Germany, throughout its various States, upon this subject appears to declare, as a general rule, that the same rights are accorded to the parents and children of strangers, which they can, by legitimate proof, satisfy the proper German authorities that they possessed in their native country, or in the country of their domicil at the (a) Story, ss. 25, 90, 455, 456, 462, 463a. Wharton, ss. 252-258; Bar, §§ 102-104. Pütter, Das praktische Europäische Fremdenrecht, Theil II. Kap. 2, §§ 48-61. Von den Eltern- und Kindesrechten der Fremden. Savigny, R. R. viii. ss 380, 396. Meriin, Rep. Puissance Paternelle. : time when the Paternal or Filial relation was called into existence (b). DXXIV. It is quite clear, however, that no country would tolerate such an exercise of parental authority, however warranted by the Law of the Origin or Domicil, as actually violated the Law of the land. Upon this point Wächter (c), though his illustration from the supposed Law of England is ridiculous (d), speaks with firmness and accuracy. DXXV. The limitations under which the patria potestas of a foreign father over the person of his child is admitted in England may be well gathered from the following remarks of Lord Chancellor Cottenham : 66 "It was urged that the Court must recognize the authority of a foreign tutor and curator, because it recognizes the authority of the parent of a foreign child. "This illustration proves directly the reverse; for al"though it is true that the parental authority over such a child is recognized, the authority so recognized is only "that which exists by the Law of England. If, by the "Law of the country to which the parties belonged, the (b) "Als Vaterland des Fremden wird aber jener Ort erklärt, dessen Gesetzen derselbe vermöge seiner Geburt als Unterthan unterliegt."-Puttlingen, Die gesetzliche Behandlung der Ausländer in Oesterreich, ss. 47, 48. [See Prussian Code, Einleitung, §§ 23, 25, 34, and Theil II. tit. ii. Von den wechselseitigen Rechten und Pflichten der Aeltern und Kinder.] "Die Entstehung der väterlichen Gewalt durch Zeugung in der Ehe, sowie deren denkbare Anfechtung, ist zu beurtheilen nach dem Gesetz des Ortes, an welchem der Vater zur Zeit der Geburt des Kindes seinen Wohnsitz hatte."-Savigny, R. R. viii. s. 380. 66 È palese che lo statuto che definisce la patria potestà è personale, al pari dello statuto che fissa la minore età, e la interdizione."-Rocco, lib. iii. cap. xix. pp. 416, 417. (c) Wächter, Die Collision &c., § 23, in fine. (Archiv, vol. xxv. p. 188.) (d) E.g. that a man cannot in Germany, as he may in England (!), sell his wife in the market-place. "authority of the father was much more extensive and "arbitrary than in this country, is it supposed that a "father would be permitted here to transgress the power "which the Law of this country allows? If not, then "the Law of this country regulates the authority of the parent of a foreign child living in England by the Laws "of England and not by the Laws of the country to "which the child belongs" (e). 66 DXXVI. With respect to the operation of Parental relations upon the Property of the child, according to the ancient Roman Law, no child under the Paternal power was capable of acquiring property for himself-his acquisitions belonged to his father. This rule of law received many limitations in the course of time, as in the case of the castrense peculium and the bona materna. The general law, however, remained in force till the time of Justinian, who abrogated it entirely, and allowed the child to be the proprietor of his own future acquisitions (f). Savigny expresses an unhesitating opinion that the parental relations are governed by the Law of the Domicil of the Parents not by the law of the place in which the child was born. A change of domicil, therefore, might be followed by a change of law in this matter (g). The reason for this opinion is, that the laws which regulate the acquisitions of children, being more or less a restriction (e) Johnstone v. Beattie, 10 Clark & Finnelly's Rep. p. 114. (f) Codex, lib. vi. t. lxi. 1. Instit. lib. ii. t. ix. 1, 2. (g) "Dagegen sind die Vermögensverhältnisse zwischen dem Vater und den Kindern zu beurtheilen nach dem Gesetz, welches an dem jedesmaligen Wohnsitz des Vaters besteht, so dass also eine Veränderung des Wohnsitzes auch eine Veränderung dieser Verhältnisse nach sich ziehen kann."-Savigny, R. R. viii. s. 380. "Im Europäischen Völkerrecht richtet sich die VerfügungsBefugniss des Vaters über das Einkommen vom Vermögen seiner Kinder nach dem Recht des Landes wo die dazu gehörigen Sachen sich befinden, sein Genuss desselben,-Nutzniessung, &c. (i.e. ususfructus) nach dem Rechte ihres Wohnorts."-Pütter, ibid. Theil II. Kap. 2, § 54. upon the natural capacity of acquiring, belong to the individual Status, which is, according to Savigny's doctrine, always dependent on the Law of the domicil; and this affects all the children-those born before as well as those born after the domicil has been acquired (h). This rule was incorporated into the Prussian Laws (i). DXXVII. Much discussion has taken place among continental jurists as to whether the Paternal Power extends to immoveable as well as to moveable property; or, as they phrase it, whether the law is personal or real. Story (k) collects and examines these opinions. Bretonnier, Hertius, Bouhier, Le Brun, D'Argentré, maintain that the Paternal Power is altogether personal, and extends to immoveable property in a foreign country. On the other hand, Froland, Boullenois, and the high authority of D'Aguesseau (1) are against the extension of the Paternal Power to immoveable property. Merlin strives to steer a middle course between both opinions. DXXVIII. Savigny (m), following Schäffner, altogether disapproves of the maxim of the English and American Law, that the lex rei sita and not the lex domicilii governs all questions, and, therefore, this one among the number, relating to immoveable property (n). The result appears, therefore, to be, that the rights of the Father with respect to the property of the minor child are, according to the common law of Europe, the Roman Law, governed by the Law of the domicil; and this appears to be the Law of France. Where the English Law prevails, these rights, so far as they affect immobilia, are governed by the lex loci rei (h) Savigny, ubi sup. s. 396, num. 2. (i) Ibid. (k) Conflict of Laws, ss. 455-463a. (1) Story cites all these authorities; but see also authorities cited by Rocco, lib. i. cap. ii., lib. iii. cap. xix. 911. (m) R. R. viii. s. 380. (n) See Birthwhistle v. Vardill, 7 Clark & Finnelly's Rep. at p. |