SECT. III. Moveables, Domestic and Foreign, and their legal Effects. LOCAL situation is essential to a moveable no less than to land: we cannot even conceive a horse or a ship, but as existing in a certain place. In a legal view, a moveable situated within a certain territory, is subjected to the judge of that territory; and every action, claiming the property or possession of it, must be brought before that judge. Warrant for execution must be granted by the same judge, as no other judge has authority over it. It is a different question, by what law the judge ought to regulate his proceedings, whether by the law of his own country, or by what other law. About this question writers have differed widely. Some are of opinion, that moveables non habent sequelam, meaning, that without regard to their local situation, they are to be held as belonging to the country of the proprietor, and to be subjected to the law of that country. Others, averse to fiction, are of opinion, that moveables, like land, ought to be governed by the law of the country where actually situated. Opinions, so different, are an incitement to trace this subject to its fountain-head, if it can be traced. That each of these opinions may be right in particular cases, is probable; for otherwise they would not be adopted: but I suspect, that neither of them will hold in general, and in every case. I take first under consideration moveables accessory to an immove able subject, the furniture of a dwelling-house, the stocking of a farm, goods in a shop for sale, the implements of a manufacture, which may be termed permanent moveables. These are naturally considered as belonging to the same country with the principal subject, and to be governed by the same law. This view may be enlarged, by comprehending under permanent moveables, every moveable that, like those above mentioned, have, beside local situation, some connection with a country. So far the latter opinion appears the best founded. And that this way of thinking has long prevailed in Scotland, is made evident by the act 88, parl. 1426, enacting, "That "when a Scotchman dies abroad non animo rema"nendi, his Scotch effects must be confirmed in Scot"land." Nor will it alter the rule, that the proprietor happens to be a foreigner. The succession to an immoveable subject is not affected by that circumstance and it is natural that an accessory should go along with its principal: the thinking mind cannot readily yield to a separation of things intimately connected, to regulate the succession of the immoveable part by the law of the country to which it belongs, and of the moveable part by the law of the proprietor's country. This argument must appear in a strong light where both parts belong to a foreigner; and it can make no solid difference that the moveable part only belongs to him. We adhere to this doctrine in practice. Letters of administration from the Prerogative Court of Canterbury will not be sustained as a title to effects in Scotland that belonged to the deceased, even though granted to those who are next in kin by the Scotch law. The powers of that court are confined within its own territory; and Scotch effects must be confirmed in Scotland. In England, a bastard enjoys the privilege of making a testament, which obtains not here. And, accordingly, notwithstanding a testament made by an English bastard, his moveables here were escheated to the crown.* A nuncupative will is sustained in England; but it will not carry Scotch moveables, writ with us being necessary to convey moveables from the dead to the living. But the nomination of an executor by the proprietor in his testament, being effectual all the world over jure gentium, will be sustained here. Moveables that are not connected with an immoveable subject, nor in any way connected with a country or territory, but merely by local situation, may be termed transient moveables; moveables, for example, that a proprietor carries about with him, his watch, his jewels, his garments, the money in his pocket, his horses, his coach, and such like. These so far coincide with permanent moveables, as that every question concerning them must be determined by the judge of the territory where they actually are. But it follows not that the law of that territory ought to be the rule. By their intimate connection with the proprietor, the law of his country ought to prevail. A gentleman, in the course of travelling, traverses many foreign territories; and happens to die suddenly within one of them. What a strange law would it be that his succession should depend on such an accident? The nature of man is averse to chance we love to rest on general principles and permanent facts, rejecting circumstances daily and * Haddington, 1st Feb. 1611, Purves contra Chisholm. hourly varying. A Scotchman crosses the border, purposing to return home in a week; but dies suddenly in the English side by a fall from his horse. His transient effects, by this accident, remain in England; but it would derogate from the dignity of law to lay any weight on that circumstance; and laying it aside, what other rule is there to follow but to regulate the succession by the law of Scotland? These effects were carried by the proprietor from Scotland: he purposed to carry them back to the same country; and it is no wide stretch of thought to consider them as still continuing there. The English judges, accordingly, considering them to be Scotch effects, will prefer those who are by the Scotch law next in kin to the deceased.(a) Here the opinion, making the law of the proprietor's country the rule of succession, appears the best founded. This case demands peculiar attention: here judges are led to found their decisions, not on their own law, nor on the jus gentium, but on the municipal law of another country. A ship is another example of transient moveables. While it is abroad on a trading voyage, the proprietor dies at home. The ship is under a foreign jurisdiction; but when claimed there, the judge, rejecting the casual circumstance of local situation, will consider it as belonging to the country of the proprietor, and will adjudge it to those who have right by the law of that country. A (a) It may create at first some backwardness of opinion to find a rule of succession founded upon an obscure mental operation; but the argument will acquire weight, on consulting the Essays on British Antiquities, essay 4, where will be found many rules of succession built upon foundations still more slender than that mentioned above. Frenchman consigns goods in Edinburgh, to be disposed of for his behoof; but dies before the commission is executed. The succession to these goods ought to be governed by the law of France; and the Court of Session, as having jurisdiction in foreign matters, will decree accordingly. In general, such moveables are held to be foreign moveables, conveyable inter vivos, and from the dead to the living, according to the law of the proprietor's country. An assignment by the foreign proprietor, formal, according to the lex loci, will be sustained here to carry such moveables. And if they belonged to an Englishman, letters of administration after his death will be here a valid title, without necessity of confirmation. Upon the whole, comparing permanent and transient moveables, the local situation of the former points out the judge, without regarding the proprietor's country. But as to the latter, the proprietor's country points out the judge, without regarding the local situation. Where a Scotchman, occasionally in England, dies there intestate, the Court of Session, acting as a court of common law, will adjudge his moveables, situated in Scotland, of whatever kind, to those who are next in kin, according to our law. But his transient moveables, locally in England, must be claimed from the English judges; who, acting as a court for foreign matters, ought to govern themselves by the law of Scotland; which brings in the relict for her share. But what if he have made a will, dividing his moveables among his blood-relations, leaving nothing to his wife? Her contract of marriage affords an effectual claim against him, which he cannot evade by any |