Page:The Green Bag (1889–1914), Volume 21.pdf/37

 24

The Green Bag

dutiable, and transactions of sale and pur chase as exempt from duty. This article considers the English cases in which it was necessary to decide to which class a trans action belonged. Conflict of Laws (Domicile). "Domi cile in Countries Granting Extraterri torial Privileges to Foreigners," by Charles Henry Huberich. Law Quarterly Review (vol. xxiv, p. 440). The question discussed here is, Can a per son acquire a domicile in a place where, by virtue of capitulation, treaties, law, or usage, he enjoys exemption from the operation of the ordinary local laws? The author does not take up the domicile of diplomatic agents and their suites, but limits himself to the acquisition of domicile in countries such as Turkey and China, where citizens or subjects of certain states are governed by their own national law. The power to acquire a domicile in such cases was denied by Mr. Justice Chitty in the much-discussed case of Tootal's Trusts. A contrary view is taken by Judge Wilfley in a case recently decided. [In re Allen's Will, United States Court for China, Shanghai Term, August 16, 1907. Pamphlet (not offi cially reported).] The increasing number of persons of British and American nationality permanently resid ing in the Orient makes the question one of considerable practical importance. The Eng lish view, it is submitted, is based on erron eous conceptions of domicile and exterritori ality. It is supported by the authority of a single case, has been vigorously attacked, and may yet be repudiated by courts not bound by the precedent. Mr. Huberich prefers the latter view. He says in summing up: "The acquisition of a domicile in a country granting exterritorial privileges is governed by the same principles of law as the acquisi tion of a domicile in other countries. Where the requisite factum and animus are shown to exist there is no valid reason why an Eng lishman or an American should not be held to acquire a domicile in China. In respect of all matters which private international law refers to the law of the domicile he would be governed by the Chinese law, the law of the territorial sovereign. The law to which he would be subject would be none the less the law of China because it provides that

persons of British and American nationality shall be governed by such laws as their respec tive countries may enact to govern their nationals in China. The legislative power of China extends to all persons and things within the territorial limits of the Empire; the British Parliament in legislating for British nationals in China acts merely under a delegation of authority. Such laws are operative within the territory of China only because China recognizes them as part of the law of the land. The Chinese law subjects certain persons owing allegiance to a foreign government to rules of law which may differ from those that are applied to persons of Chinese nationality, just as the common law subjects certain transactions having their origin in foreign countries to rules of law which may differ from those that are applied to transactions taking place in the forum. Nor is the principle affected by the circumstance that this law is administered by officials appointed by a foreign government. "It follows from these principles that if the so-called exterritorial privileges are with drawn by the territorial sovereign, even in violation of treaties, the domicile acquired in such country would continue, the persons remaining subject to such rules of law as the state of their domicile makes applicable to them. It follows further that a change in the nationality of a person domiciled in a country granting exterritorial privileges may involve a considerable change in the applicatory law governing matters subject to the law of domicile." Constitutional Law (Right to Dis charge Servant at Will). "The Adair Case," by Charles R. Darling. American Law Review (vol. xlii, p. 884). Arguing in favor of the decision of the United States Supreme Court that a law for bidding a carrier from discriminating against a workman because of his membership in a labor union is unconstitutional. The author says, however, in conclusion: "The labor men have no just ground for finding fault with the decision in the Adair case, but they may pertinently ask whether the logic of that decision does not require the courts to say that any strike for any reason is lawful." Criminal Law (Responsibility). "The Case of Marie Jeanneret," by Charles F.