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to the application of foreign laws within its territory, is given by acts passed by its legislative authority, or by treaties concluded with other States. Its tacit consent is manifested by the decisions of its judicial and administrative authorities, as well as by the writings of its publicists.

There is no obligation, recognized by legislators, public authorities, and publicists, to regard foreign laws; but their application is admitted, only from considerations of utility and the mutual convenience of States-ex comitate, ob reciprocam utilitatem. The public good and the general interests of nations have caused to be accorded, in every State, an operation more or less extended to foreign laws. Every nation has found its advantage in this course. The subjects of every State have various relations with those of other States; they are interested in the business transacted and in the property situate abroad. Thence flows the necessity, or at least utility, for every State, in the proper interest of its subjects, to accord certain effects to foreign laws, and to acknowledge the validity of acts done in foreign countries, in order that its subjects may find in the same countries a reciprocal protection for their interests. There is thus formed a tacit convention among nations for the application of foreign laws, founded upon reciprocal wants. This understanding is not the same everywhere. Some States have adopted the principle of complete reciprocity, by treating foreigners in the same manner as their subjects are treated in the country to which they belong; other States regard certain rights to be so absolutely inherent in the quality of citizens as to exclude foreigners from them; or they attach such an importance to some of their institutions, that they refuse the application of every foreign law incompatible with the spirit of those institutions. But, in modern times, all States have adopted, as a principle, the application within their territories of foreign laws; subject, however, to the restrictions which the rights of sovereignty and the interests of their own subjects require. This is the doctrine professed by all the publicists who have written on the subject.

"Above all things," says President Bohier, "we must remember that, though the strict rule would authorize us to confine the operation of laws within their own territorial limits, their application has, nevertheless, been extended, from considerations of public utility, and oftentimes even from a kind of necessity. But, when neigh

boring nations have permitted this extension, they are not to be deemed to have subjected themselves to a foreign statute; but to have allowed it, only because they have found in it their own interest by having, in similar cases, the same advantages for their own laws among their neighbors. This effect given to foreign laws is founded on a kind of comity of the law of nations; by which different peoples have tacitly agreed that they shall apply, whenever it is required by equity and common utility, provided they do not contravene any prohibitory enactment." 1

Huberus, one of the earliest and best writers on this subject, lays down the following general maxims, as adequate to solve all the intricate questions which may arise respecting it :

1. The laws of every State have force within the limits of that State, and bind all its subjects.

2. All persons within the limits of a State are considered as subjects, whether their residence is permanent or temporary.

3. By the comity of nations, whatever laws are carried into execution within the limits of any State, are considered as having the same effect everywhere, so far as they do not occasion a prejudice to the rights of other States and their citizens.

From these maxims, Huberus deduces the following general corollary, as applicable to the determination of all questions arising out of the conflict of the laws of different States, in respect to private rights of persons and property.

All transactions in a court of justice, or out of court, whether testamentary or other conveyances, which are regularly done or executed according to the law of any particular place, are valid, even where a different law prevails, and where, had they been so transacted, they would not have been valid. On the other hand, transactions and instruments which are done or executed.contrary to the laws of a country, as they are void at first, never can be valid; and this applies not only to those who permanently reside in the place where the transaction or instrument is done or executed, but to those who reside there only temporarily; with this exception only, that if another State, or its citizens, would be affected by any peculiar inconvenience of an important naturé, by giving this effect to acts performed in another country, that State is not bound to give effect to those

1 Bohier, Observations sur la coutume de Bourgogne, ch. 23, §§ 62, 63, p. 457.

proceedings, or to consider them as valid within its jurisdiction.1 (a)

§ 3. Lex loci rei

Thus, real property is considered as not depending sitæ. altogether upon the will of private individuals, but as having certain qualities impressed upon it by the laws of that country where it is situated, and which qualities remain indelible, whatever the laws of another State, or the private dispositions of its citizens, may provide to the contrary. That State, where this real property is situated, cannot suffer its own laws in this respect to be changed by these dispositions, without great confusion and prejudice to its own interests. Hence it follows, that the law of a place where real property is situated governs exclusively as to the tenure, the title, and the descent of such property.2

This rule is applied, by the international jurisprudence of the United States and Great Britain, to the forms of conveyance of real property, both as between different parts of the same con

Huberus, Prælect. tom. ii. lib. i. tit. 3, de Conflictu Legum.

(a) [Commissions Rogatoires, by which testimony is obtained for the courts of one country, through the instrumentality of foreign tribunals, are very usual in the different States of Europe. It is only the English and American judges that do not resort to them. In the case of proceedings in the courts of those countries, requiring proof from abroad, a commission to take the testimony is addressed to one or more individuals, in the place where the testimony is to be obtained, authorizing them to examine the witnesses on oath, on interrogatories sent to them. This examination is, however, necessarily voluntary on the part of the witnesses; as is also the acceptance of the duties of the commission, by the persons named in it. Moreover, the magistrates of the place may object to the execution of the commission, as an infringement on the exclusive judicial power which belongs to every State, throughout the whole extent of its territory. See Felix, Droit International Privé, § 185.]

2 "Fundamentum universæ hujus doctrinæ diximus esse, et tenemus, subjectionem hominum infra leges cujusque territorii, quamdiu illic agunt, quæ facit ut actus ab initio validus aut nullus, alibi quoque valere aut non valere non nequeat. Sed hæc ratio non convenit rebus immobilibus, quando illæ spectantur, non ut dependentes à liberâ dispositione cujusque patris-familias, verum quatenus certæ notæ lege cujusque reipublicæ ubi sitæ sunt, illis impressæ reperiuntur; hæ notæ manent indelebiles in istâ republica, quidquid aliarum civitatum leges, aut privatorum dispositiones, sccus aut contra statuant; nec enim sine magnâ confusione prejudicioque reipublicæ ubi sita sunt res soli, leges de illis latæ, dispositionibus istis mutari possunt." Huberus, liv. i. tit. 3, de Conflictu Leg. § 15.

federation or empire, and with respect to foreign countries. Hence it is that a deed or will of real property, executed in a foreign country, or in another State of the Union, must be executed with the formalities required by the laws of that State where the land lies.1

But this application of the rule is peculiar to American and British law. According to the international jurisprudence recognized among the different nations of the European continent, a deed or will, executed according to the law of the place where it is made, is valid; not only as to personal, but as to real property, wherever situated; provided the property is allowed by the lex loci rei site to be alienated by deed or will; and those cases excepted, where that law prescribes, as to instruments for the transfer of real property, particular forms, which can only be observed in the place where it is situated, such as the registry of a deed or the probate of a will.2

The municipal laws of all European countries for§ 4. Droit merly prohibited aliens from holding real property within d'aubaine. the territory of the State. During the prevalence of the feudal system, the acquisition of property in land involved the notion of allegiance to the prince within whose dominions it lay, which might be inconsistent with that which the proprietor owed to his native sovereign. It was also during the same rude ages that the jus albinagii or droit d'aubaine was established; by which all the property of a deceased foreigner (movable and immovable,) was confiscated to the use of the State, to the exclusion of his heirs, whether claiming ab intestato, or under a will of the dece

Wheaton's Rep. vol. iii. p. 212.- Robinson v. Campbell. Cranch's Rep. vol. vii. p. 115. United States v. Crosby.

2 Felix, Droit International Privé, § 52. "Hinc Frisius habens agros et domos in provinciâ Groningensi, non potest de illis testari, quia lege prohibitum est ibi de bonis immobilibus testari, non valente jure Frisico adficere bona, quæ partes alieni territorii integrantes constituunt. Sed an hoc non obstat ei, quod antea diximus, si factum sit testamentum jure loci validum, id effectum habere etiam in bonis alibi sitis, ubi de illis testari licet? Non obstat; quia legum diversitas in illâ specie non afficit res soli, neque de illis loquitur, sed ordinat actum testandi; quo recte celebrato, lex Reipublicæ non vetat illum actum valere in immobilibus, quatenus nullus character illis ipsis a lege loci impressus læditur aut imminuitur." Huberus, ubi supra.

dent. In the progress of civilization, this barbarous and inhospitable usage has been, by degrees, almost entirely abolished. This improvement has been accomplished either by municipal regulations, or by international compacts founded upon the basis of reciprocity. Previous to the French Revolution of 1789, the droit d'aubaine had been either abolished or modified, by treaties between France and other States; and it was entirely abrogated by a decree of the Constituent Assembly, in 1791, with respect to all nations, without exception and without regard to reciprocity. This gratuitous concession was retracted, and the subject placed on its original footing of reciprocity by the Code-Napoleon, in 1803; but this part of the Civil Code was again repealed, by the Ordinance of the 14th July, 1819, admitting foreigners to the right of possessing both real and personal property in France, and of taking by succession ab intestato, or by will, in the same manner with native subjects.2

The analogous usage of the droit de détraction, or droit de retraite, (jus detractûs) by which a tax was levied upon the removal from one State to another of property acquired by succession or testamentary disposition, has also been reciprocally abolished in most civilized countries.

The stipulations contained in the treaties of 1778 and 1801, between the United States and France, for the mutual abolition of the droit d'aubaine and the droit de détraction between the two countries, have expired with those treaties; and the provision in the treaty of 1794, between the United States and Great Britain, by which the citizens and subjects of the two countries, who then held lands within their respective territories, were to continue to hold them according to the nature and tenure of their respective estates and titles therein, was limited to titles existing at the signature of the treaty, and is rapidly becoming obsolete by the

1 Du Cange (Gloss. Med. Evi, voce Albinagium et Albani) derives the term from advenæ. Other etymologists derive it from alibi natus. During the Middle Age, the Scots were called Albani in France, in common with all other aliens; and as the Gothic term Albanach is even now applied by the Highlanders of Scotland to their race, it may have been transferred by the continental nations to all foreigners.

2 Rotteck et Welcker, Staats-Lexicon, art. Gastrecht, Band. 6, § 362. Vattel, liv. ii. ch. viii. §§ 112-114. Klüber, Droit des Gens, Pt. II. tit. 1, ch. ii. §§ 32, 33. Von Mayer, Corp. Jur. Confæd. Germanicæ, tom. ii. p. 17. Merlin, Repertoire, tit. Aubaine.

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