March 10, 1905.] 



SCIENCE. 



365 



directs the course of their devolution when 

 he is no more, may justly tax those who 

 benefit by their devolution, irrespective of 

 the place of their residence, or of that 

 where the goods may chance to be found. 



Our American succession taxes, like 

 those of England, are everywhere, when 

 imposed by the state where the deceased 

 had his home, measured by a percentage 

 of the value of all his goods, wherever 

 situated, and all his real estate situated 

 within the state, subject to some exemption 

 of moderate amount. 



But during the last twenty or thirty 

 years the states have begun to go farther 

 and charge a like percentage on all goods 

 of a non-resident, which may be subject 

 to their power. 



There is no legal objection to this. 



It is not double taxation within the 

 meaning of any constitutional prohibition. 

 In law, double taxation occurs only when 

 the same sovereign taxes the same thing 

 twice. But aside from this, a law of the 

 kind now in question does not tax the 

 same thing which had been taxed before. 

 The sovereign of the domicile only can tax 

 the succession to goods, because the suc- 

 cession takes place, once for all, under his 

 laws and in his territory. What the 

 sovereign of the sitns of goods left by a 

 foreign decedent taxes is not the succession 

 to them, and not the goods themselves, 

 but the privilege of taking them away, 

 under the title derived from that succes- 

 sion. * The title is unquestionable, and 

 unquestioned, but the right of the owner 

 to avail himself of it in foreign territory 

 depends on the comity of the foreign 

 sovereign, who if he permits a transfer can 

 prescribe the terms. f 



* Foelix, Droit International Priv6, I., § 9. 



t Magoun v. Illinois Trust and Savings Bank, 

 170 U. S. Reports, 283, 288; Dammert v. Osborn, 

 141 N. Y. Reports, 564; 35 Northeastern Reporter, 

 407. 



Nor is a tax so imposed any infringe- 

 ment of the privileges and immunities of 

 citizens of other states, for they are treated 

 precisely as those of the state by authority 

 of which the tax is laid. 



It is an infringement of a maxim of pri- 

 vate international law ; but such m&xims 

 may be set aside by any political sovereign 

 who thinks it for his interest to disregard 

 them. Our courts, in the absence of legis- 

 lation to the contrary, treat the doctrines 

 of private international law as part of 

 the common or unwritten law, but it is 

 only in the absence of legislation to the 

 contrary. A statute can always abrogate 

 unwritten law. 



Not only is it lawful, but in many cases 

 it seems not unjust, for a sovereign to 

 tax the succession on goods within his 

 dominions, left by a foreigner. If they 

 were not simply in transit, but had been 

 there so long as to become part of the 

 wealth of the realm and to share in the 

 settled protection of the government, they 

 were subject to taxation for it when the 

 owner was alive ; and as the new successors 

 must come there for possession, and can 

 only dispossess those in whose hands they 

 may be left by force of this sovereign's 

 laws, and if need be, by process from his 

 courts, they can not seriously complain if 

 he asserts a right to tax them for wliat 

 they get. 



So it is also in the case of intangible 

 property when that has been long placed 

 by the owner in the hands of agents in a 

 foreign country to manage and invest.* 



But while such successions can be taxed 

 by a sovereign of the domicil and taxed 

 again by the sovereign of the situs, it is 

 quite another question whether they should 

 be. 



* New Orleans v. Stempel, 175 U. S. Reports, 

 309; In re Lewis' Estate, 203 Pa. State Reports, 

 211; 52 Atlantic Reporter, 205; In re Romaine, 

 127 N. Y. Reports, 88; 27 Northeastern Reporter, 

 759: 12 Lawyers' Reports Annotated, 401. 



