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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 recog. nized 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 sitæ 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 formerly 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.
1 Wheaton's Rep. vol. iii. p. 212.- Robinson o. Campbell. Cranch's Rep. vol. vii. p. 115. United States v. Crosby.
? Fælix, 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
i Du Cange (Gloss. Med. Ævi, 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. SS 112-114. Klüber, Droit des Gens, Pt. II. tit. 1, ch. i. $$ 32, 33. Von Mayer, Corp. Jur. Confæd. Germanicæ, tom. ï. p. 17. Merlin, Repertoire, tit. Aubaine.
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." ?
As to personal property, the lex domicilii of its owner prevails over the law of the country where such pro- domicilii.
1 Kent's Comm. on Am. Law, vol. ü. pp. 67-69. 5th edit.
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 Hanorer. 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 230 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. 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 dorniciled 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. Fælix, 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.?
The sovereign power of municipal legislation also 66. 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.?
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,
I. Laws relating to the state and capacity of persons. Laws re
In general, the laws of the State, applicable to the s civil condition and personal capacity of its citizens, capacity of
> persons may operate upon them even when resident in a foreign operate ex:
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
ing to the
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.)