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 neighboring 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." (a)

§ 80. 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 (a) Bohier, Observations sur la Coutume de Bourgogne, ch. 23, §§ 62, 63, p. 457.

affected by any peculiar inconvenience of an important nature, by giving this effect to acts performed in another country, that State is not bound to give effect to those proceedings, or to consider them as valid within its jurisdiction. (a) 45

rei sitæ.

Lex loci § 81. Thus, real property is considered as not depending 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. (a)

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 confed

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

[45 On the subject of comity, see Judge Redfield's edition of Story's Conflict of Laws, § 38 a. The learned editor offers a suggestion, that the policy of each nation must determine whether it will give judicial remedies for breaches of obligation committed abroad, and what is called comity may enter into that question; but, if the remedies are allowed, the court must necessarily learn and apply the law of the foreign country, in order to understand the rights and duties of the parties. This is not, he says, of comity, but of necessity.

On the general subjects treated of in these sections, see Savigny's System, 1. viii. Mohl's Gesch. und Liter. i. 441. Story's Conflict of Laws, §§ 23-32. Dalrymple v. Dalrymple, Hagg. Cons. Rep. ii. 59. Fergusson on Marriage and Divorce, 395, 410. Hertii Opera, de Coll. Leg. 120, 123, 170, 171. Boullenois, Traité des Stat. I. 2, 3, 4, and 6; 3 Ob. 10, p. 152, 155; ii. App. p. 8. Livermore on Contr. of Laws, 28. Kent's Comm. ii. 457. Henry on Foreign Law, Part I. ch. 1, § 1. Rodenburg de Stat. ch. 3, § 1, p. 7. Bank of Augusta v. Earle, Peters's Rep. xiii. 584. Blanchard v. Russell, Mass. Rep. xiii. 4. Saul v. His Creditors, Martin's Rep. xvii. 569–596.] — D. (a) "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, secus aut contra statuant; nec enim sine magnâ confusione prejudicioque reipublicæ ubi sitæ sunt res soli, leges de illis latæ, dispositionibus istis mutari possunt." Huberus, liv. i. tit. 3, de Conflictu Leg. § 15.

eration 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. (b)

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 sitœ 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. (c) 46

(b) Wheaton's Rep. iii. 212. Robinson v. Campbell. Cranch's Rep. vii. 115. United States v. Crosby.

(c) Fölix, 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.

[46 Story's Conflict of Laws, §§ 424, 434, 448. Burge on Col. and For. Laws, ii. 840-870; iv. 150, 576. Fœlix, Conflit des Lois, 216-230, 307-312, 346–7, 350–4. As to liens on immovable property, see Boullenois, i. 683–689, 818; Rodenburg de Stat. tit. ii. ch. 5, § 16; and note 4 to Story's Conflict of Laws, § 424. "No one maintains that a form expressly imposed as an exclusive one by the lex sitûs can ever be dispensed with." Westlake's Pr. Intern. Law, § 87. The French law of March, 1855, requires the transfer inter vivos of real property and of corporeal personal property to be recorded in the Bureau of Hypothecations.

The general rules as to the transfer of immovable property inter vivos, on which the greatest agreement among the courts and jurists is found, are that the lex loci rei sitæ must govern in determining-I. The disposition of immovable property (real estate); II. The personal capacity to take or to transfer immovable property; III. The formalities of passing title to immovable property; IV. The extent of the dominion over immovable property; V. The question what is and what is not real estate. These questions are found discussed at great length, with the latest authorities, in Redfield's edition of Story's Conflict of Laws, ch. 10, §§ 424-454.

As to wills of immovable property, the rules most generally adopted are that the lex loci rei site must govern in determining - I. The capacity or incapacity

Droit § 82. The municipal laws of all European countries. d'aubaine. formerly prohibited aliens from holding real property within 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 decedent. (a) 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 the testator; II. The extent of the testator's power to dispose of the property; III. The forms and solemnities necessary to give the will its due attestation and effect. If a will is made in execution of a power, it is valid if made in conformity with the law governing the granting of the power. The law of the testator's domicil governs in determining-I. The construction of the will, as to whether it does pass real estate; II. What is real estate when the will purports to pass it; III. The quantity or nature of the estate in lands which the devisee takes, as in fee simple or for life, &c., if the domicil is also the locus rei sitœ; IV. The designatio personarum; V. The import of ambiguous terms. Still it is a rule of construction, that, if the testator evidently refers to the law of the situs rei, that will be invoked for the interpretation of the will.

See, on these points, Savigny's System, 1. viii. Redfield's edition of Story's Conflict of Laws, §§ 474-479.]—D.

(a) Du Cange (Gloss. Med. Evi, voce Albinagium et Albani) derives the term from advena. 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.

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. (b)

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 1800, 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; 47 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 lapse of time. (c) 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

(b) Rotteck und Welcker, Staats-Lexicon, art. Gastrecht, Band 6, § 362. Vattel, liv. ii. ch. 8, §§ 112-114. Klüber, Droit des Gens, Part II. tit. 1, ch. 2, §§ 32, 33. Von Mayer, Corp. Jur. Confæd. Germanicæ, tom. ii. p. 17. Merlin, Répertoire, tit. Aubaine.

[47 The treaty of the United States with France, of 23 February, 1853, is intended to authorize citizens of each country to hold real and personal estate in the other, in the same manner with its own citizens; but the treaty was made upon the theory that each State of the Union had exclusive control over that subject within its own limits. It accordingly takes the form of authorizing it as far as the laws of each State of the Union permit, with an engagement on the part of the President to recommend to the several States to pass laws to enable the treaty to operate, and with a right reserved to France to govern herself by rules of reciprocity. U. S. Laws, x. 992. The better opinion seems to be, that the treaty-making power of the general government is sufficient, under our Constitution, to reach the objects of this treaty, and to establish, by its own force, a law which shall be paramount in each State. Fairfax v. Hunter, Cranch, vii. 627. Ware v. Hylton, Dall. iii. 242. Opinions of Att'y.-Gen. viii. 415. Halleck's Inter. Law, 157, where a great many cases are cited in support of this power in the general government. Kent's Comm. iv. 420. Jefferson's Works, iii. 365. Treaties on this subject, more or less for the same general purpose, exist with France, Russia, Austria, Naples, with most of the German States and of the States of South America, and with Mexico and the Hawaiian Islands. U. S. Laws, viii. ix. x. and xi., under the name of each nation.] — D.

(c) Kent's Comm. ii. 67-69, 5th edit.