lapse of time. But by the stipulations contained in a great number of subsisting treaties, between the United States and various powers of Europe and America, it is provided, that "where on the death of any person holding real estate within the territories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation, and exempt from all duties of détraction on the part of the government of the respective States." 2

As to personal property, the lex domicilii of its owner 5. Lex prevails over the law of the country where such pro

1 Kent's Comm. on Am. Law, vol. ii. pp. 67-69. 5th edit.

domicilii.

2 Treaty of 1828, between the U. S. and Prussia, art. 14. Elliot's Am. Diplom. Code, vol. i. p. 388. [See also, for the same or similar provisions, the Convention of the United States with the Hanseatic Republics, of 1827, art. 7, U. S. Stat. at Large, vol. 8, p. 370; with Austria, of 1829, art. 11, id. p. 400; also the convention with Austria, 1848, art. 11, id. vol. 9, p. 445; with Brazil, of 1828, art. 11, id. vol. 8, p. 392; with Mexico, of 1831, art. 13, id. vol. 8, p. 414; with Russia, of 1832, art. 10, id. vol. 8, p. 448; with the Two Sicilies, of 1845, art. 6, id. vol. 9, p. 836; with Chili, of 1832, art. 9, vol. 8, p. 435; with Venezuela, of 1836, art. 2, id. vol. 8, p. 470; with Peru-Bolivia, of 1836, art. 8, id. vol. 8, p. 489; with Sardinia, of 1838, art. 18, id. vol. 8, p. 520; with Hanover, of 1840, (concluded by Mr. Wheaton,) art. 7, id. vol. 8, p. 556; and the Convention of Hanover, of 1846, (concluded by Mr. Mann,) art. 10, vol. 9, p. 865. This last convention contains an article, by which its advantages may be extended to other States of the Germanic Confederation, provided they confer similar favors upon the United States to those accorded by the Kingdom of Hanover. Under this provision, Oldenburg acceded, on the 10th of March, 1847, id. vol. ix. p. 868, and Mecklenberg-Schwerin, on 9th December, 1847, id. vol. ix. p. 910. See also treaty with Ecuador of 1839, art. 12, id. vol. 8, p. 538;. the conventions with Wurtemberg of 1844, id. vol. 8. p. 588; of Hesse Cassell of 1844, id. vol. 9, p. 818; of Saxony of 1845, id. vol. 9, p. 830; of Nassau of 1846, id. vol. 9, p. 849; of Bavaria of 1845, id. vol. 9, p. 827. The five last conventions were concluded at Berlin, by Mr. Wheaton; each of them is entitled " A Convention for the Mutual Abolition of the Droit d'Aubaine and taxes on Emigration," to which subjects they exclusively relate. The treaty with France, of 23d February, 1853, art. 7, vide infra, contains a provision, authorizing Frenchmen in all the States of the Union, whose existing laws permit it, to hold personal and real property by the same tenure and in the same manner as citizens of the United States, and an engagement of the President to recommend to the other States the passage of laws necessary for that purpose. France accords to American citizens the same privileges within her territory, with the reservation of the ulterior right of establishing reciprocity.]

.

perty is situated, so far as respects the rule of inheritance :Mobilia ossibus inhærent, personam sequuntur. Thus the law of the place, where the owner of personal property was domiciled at the time of his decease, governs the succession ab intestato as to his personal effects wherever they may be situated.' Yet it had once been doubted, how far a British subject could, by changing his native domicile for a foreign domicile without the British empire, change the rule of succession to his personal property in Great Britain; though it was admitted that a change of domicile, within the empire, as from England to Scotland, would have that effect.2 But these doubts have been overruled in a more recent decision, by the Court of Delegates in England establishing the law, that the actual foreign domicile of a British subject is exclusively to govern, in respect to his testamentary disposition of personal property, as it would in the case of a mere foreigner.3

So also the law of a place where any instrument, relating to personal property, is executed, by a party domiciled in that place, governs, as to the external form, the interpretation, and the effect of the instrument: Locus regit actum. Thus a testament of personal property, if executed according to the formalities required by the law of the place where it is made, and where the party making it was domiciled at the time of its execution, is valid in every other country, and is to be interpreted and given effect to according to the lex loci.

This principle, laid down by all the text-writers, was recently recognized in England in a case where a native of Scotland, domiciled in India, but who possessed heritable bonds in Scotland, as well as personal property there, and also in India, having executed a will in India, ineffectual to convey Scottish heritage; and a question having arisen whether his heir at law (who

1 Huberus, Prælect., tom. ii. lib. i. tit. 3, de Conflict. Leg. §§ 14, 15. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 16. See also an opinion given by Grotius as counsel in 1613, Henry's Foreign Law, App'x, p. 196. Merlin, Répertoire, tit. Loi, § 6, No. 3. Felix, Droit International Privé, § 37.

2 Per Sir J. Nicholl, in Curling v. Thornton, Addams' Eccles. Rep. vol. ii. p. 17.

3 Stanley v. Bernes, Haggard. Eccles. Rep. vol. iii. pp. 393-465. Moore v. Davell, vol. iv. pp. 346, 354.

claimed the heritable bonds as heir) was also entitled to a share of the movable property as legatee under the will: It was held by Lord Chancellor Brougham, in delivering the judgment of the House of Lords affirming that of the court below, that the construction of the will, and the legal consequences of that construction, must be determined by the law of the land where it was made, and where the testator had his domicile, that is to say, by the law of England prevailing in that country; and this, although the will was made the subject of judicial inquiry in the tribunals of Scotland; for these courts also are bound to decide according to the law of the place where the will was made.1

§ 6. Per

The sovereign power of municipal legislation also extends to the regulation of the personal rights of the sonal status. citizens of the State, and to every thing affecting their civil state and condition.

It extends (with certain exceptions) to the supreme police over all persons within the territory, whether citizens or not, and to all criminal offences committed by them within the same.2

Some of these exceptions arise from the positive law of nations, others are the effect of special compact.

There are also certain cases where the municipal laws of the State, civil and criminal, operate beyond its territorial jurisdiction. These are,

Laws re

state and

I. Laws relating to the state and capacity of persons. In general, the laws of the State, applicable to the lating to the civil condition and personal capacity of its citizens, capacity of operate upon them even when resident in a foreign operate excountry.

persons may

tra-territori

ally.

Such are those universal personal qualities which take effect either from birth, such as citizenship, legitimacy, and illegitimacy; at a fixed time after birth, as minority and majority; or at an indeterminate time after birth, as idiocy and lunacy, bank

1 Trotter v. Trotter, Wilson and Shaw's Rep. vol. iii, pp. 407–414. 2" Leges cujusque imperii vim habent intra terminos ejusdem reipublicæ, omnesque ei subjectos obligant, nec ultra. Pro subjectis imperio habendi sunt omnes, qui intra terminos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commorentur." (Huberus, tom. ii. liv. i. tit. 3, de Conflict. Leg. § 2.)

ruptcy, marriage, and divorce, ascertained by the judgment of a competent tribunal. The laws of the State affecting all these personal qualities of its subjects travel with them wherever they go, and attach to them in whatever country they are resident.1 This general rule is, however, subject to the following exceptions:

Natural

1. To the right of every independent sovereign State ization. to naturalize foreigners and to confer upon them the privileges of their acquired domicile. (a)

'Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 1. Fœlix, Droit International Privé, liv. i. tit. 1, § 31. "Qualitates personales certo loco alicui jure impressas, ubique circumferri et personam comitari, cum hoc effectu, ut ubivis locorum eo jure, quo tales personæ alibi gaudent vel subjecti sunt, fruantur et subjiciantur." Huberus, tom. ii. l. i. tit. 3, de Conflict, Leg. § 12.

(a) [Distinct from the implied national character, arising from domicile, and which may exist for commercial purposes without a person ceasing to be bound by his allegiance to the country of his birth or adoption, all the countries of Christendom, with more or less restrictions, accord the rights of naturalization to foreigners. England was the only country where an act of the legislature was necessary in each particular case. There, even in acts of Parliament, the Stat 1 Geo. 1, c. 4, required the insertion of a clause, excluding the party from being a privy counsellor, sitting in either house of Parliament, or holding any civil or military office; but since 1844, (7 and 8 Vict. c. 66,) that provision is repealed, and aliens may now be naturalized, by presenting a petition to one of the principal Secretaries of State; and it is not necessary to go to Parliament, except for the purpose of obtaining the political privileges still inhibited to naturalized aliens by the general law, but to the granting of which, by a special act, there is no longer any impediment. British Statutes at Large, 7 and 8 Vict. p. 392. With regard to expatriation, however, there is not the same accordance of views in the laws of different countries. The doctrine of the publicists is, that whenever a child attains his majority, according to the law of his domicile of origin, he becomes free to change his nationality, and to choose another domicile; and even in the case of the subject of a country, England for example, which refuses the liberty of expatriation, the original tie is preserved only in the interest of the nation to which the individual belonged, and without affecting, with reference to his adopted country, the validity of the naturalization acquired there. Fœlix, Droit International Privé, § 22.

These principles have been recently elucidated in two cases, which commanded the serious consideration of the American government. In one of them it felt bound to recognize the obligations of foreign nationality, voluntarily assumed by one who had been a native born citizen, and not to interpose, on his behalf, the claims of American citizenship, to protect him against the consequences of acts committed against the country of his adoption. In the other, it protected, under

Even supposing a natural-born subject of one country cannot throw off his primitive allegiance, so as to cease to be responsible

the American flag, when arrested in a country (which was not his domicile of origin) by the functionaries of the sovereign that had expatriated him, a foreigner who, by circumstances, had ceased to owe allegiance to any other country, who had obtained a domicile in the United States, and who had done every thing which our laws permitted to acquire the rights of American citizenship.

The case of John S. Thrasher is thus presented in a report prepared in December, 1851, by Mr. Webster, Secretary of State, in answer to a resolution of the House of Representatives:

"There is no doubt that John S. Thrasher is a citizen of the United States by birth, nor is there any doubt that he has resided in the island of Cuba for a considerable number of years, engaged in business transactions, sometimes as a merchant, and sometimes as the conductor of a newspaper press; although the precise period and duration of such residence are not known.

"In the letter from the Governor of Cuba to her Catholic Majesty's Minister in the United States, it is stated that he has been not only a resident in Havana for a considerable time, but domiciled there by regular proceedings, and that he has in solemn form sworn allegiance to the Spanish crown.

"There is no evidence in the possession of the government to show what was his purpose with regard to his returning to his native country, at any fixed or definite time. Other members of his family are understood to be, like himself, residents in Cuba - his father having gone to that island some years ago.

"It appears that soon after the failure and breaking up of the late expedition of Narciso Lopez, in the invasion of Cuba by him and the troops under his command, Mr. Thrasher was arrested and tried for high treason or conspiracy against the crown of Spain; condemned to eight years imprisonment to hard labor, and sent to Spain in execution of that sentence.

"The first general question then, is, as to his right to exemption from Spanish law and Spanish authority, on the ground of his being a native-born citizen of the United States.

"The general rule of the public law is, that every person of full age has a right to change his domicile; and it follows, that when he removes to another place, with the intention to make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicile; and this is so, notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period.

"The Supreme Court of the United States has decided, 'that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes, by these acts, such evidences of an intention permanently to reside in that country, as to stamp him with its national character;' and this, undoubtedly, is in full accordance with the sentiments of the most eminent writers, as well as with those of other high judicial tribunals on the subject. No government has carried this general presumption farther than that of the United