lex loci rei sitæ. As every thing relating to the tenure, title, and transfer of real property (immobilia) is regulated by the local law, so also the proceedings in courts of justice relating to that species of property, such as the rules of evidence and of prescription, the forms of action and pleadings, must necessarily be governed by the same law. (a)

sense worth disputing. The question, then, is on a right, forcibly if necessary, to stop and board foreign vessels, and to make some kinds of inquiries and examinations. The only defence made for the right of visit, by those who disclaim a right of search, is, that the purpose of the visit is to verify the national character of the vessel, and ascertain whether she belongs to the same nation with the cruiser, or to one with which that nation has treaties giving a right of search; in order that, if so, the cruiser may search or detain, or otherwise deal with, such vessel as the law of his country or the treaties may allow; while, if she turns out to belong to another power which has given no right of search, it will be his duty to release her, whatever the evidence of her guilt. But, apart from the consideration that visit without search, even for the limited purpose described, is futile and a mere annoyance, the ground is taken, that all visiting or detaining or searching by compulsion, exercised by a cruiser upon a vessel of another power, is a violation of right, except where there is agreement; and that the consensus gentium has extended it only to war, and crimes against all nations. A right to visit, subject to a duty to make apology and reparation in case the vessel turns out to be one not subject to visit, is not a right at all, but an admission that the visit was against right. The British Government, in former times, have claimed and exercised a right to search vessels suspected of being slavers. No exact limits to the right were laid down or regarded, whether as confined to ascertaining nationality, or as extending to proofs of guilt or innocence. Lord Palmerston, in reply to Mr. Stevenson, Aug. 27, 1841, avowed the intention of Great Britain to stop vessels of all nations on suspicion of being engaged in the slave trade; limiting the examination to the verifying of the national character the vessel may assume, and ascertaining whether she is "navigated according to law." That he claimed as a right. It was resisted by Mr. Stevenson, in his reply. Lord Aberdeen's rejoinder of Oct. 13, 1841, adhered to the claim of right, promising only safeguards against its abuse; and the further correspondence between Lord Aberdeen and Mr. Everett did not vary the posture of the case. The treaty of 1842 closed the discussion for the time. Art. 8 of that treaty is a stipulation for a naval force of each country "to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries." It was understood that Great Britain practically waived the claim while the treaty remained in force.

In 1858, British cruisers had stopped American vessels off the island of Cuba, and made some examination, slight to be sure, as to their destination and national character. The American Government at once called the attention of Great Britain to the subject; and Lord Derby's Government took the opinion of the law-officers of the crown as to a right of visit or search, either or both, in time of peace. That opinion was decidedly that no right existed, in time of peace, to stop, visit, or search. After receiving this opinion, the British Government answered to the United States that they claimed no right either to visit or search; and, suggesting the frequent cases of the abuse of the American flag by slavers, and the safety this state of the law practically gave them, requested the American Government to suggest some mode by (a) Vide supra, § 81.

Distinc

§ 135. A similar rule applies to all civil proceedings tion between in rem, respecting personal property (mobilia) within the

the rule of

decision and

the rule of territory, which must also be regulated by the local law, procedure as with this qualification, that foreign laws may furnish affecting cases in rem. the rule of decision in cases where they apply, whilst the forms of process, and rules of evidence and prescription are still

which the difficulty could be remedied. The diplomatic correspondence, however, resulted only in settling the question against the right of visit or search. In the debate which followed in the House of Lords, Lord Lyndhurst said, that England had not given up the right of visit, for there was never such a right, but had abandoned the assumption of a right that never existed. He declared, that no writer on international law asserted such a right; and no court having jurisdiction had ever sustained it. He further showed, that there was no distinction in principle, and but little in fact, between search and a visit for the purpose of verifying the national character of a vessel. Lord Malmesbury, then Secretary for Foreign Affairs, said, that England had abandoned a claim of right either to visit or search; and Lord Aberdeen said, that the question was virtually settled at the time of the treaty of 1842. (Annual Register, 1858, pp. 185–189, 191-196.) Afterwards, in 1859, on the production of the correspondence between the two governments, Lord Malmesbury admitted, that England had formerly exercised a power of search, but not founded in right and not supported by international law, when she had the only strong navy afloat; that, when France rebuilt her navy, she and the United States had objected to this exercise, and, after negotiations and practical settlements by treaties, the claim was at last abandoned. Lords Clarendon, Derby, Brougham, and Carlisle agreed that there was no right of visit: still, if the debate is correctly reported, there seems to be some confusion between the option of a cruiser, at his peril, to take his chance of a vessel turning out to have been liable to be detained by him, and the right of a cruiser to detain the vessel for the purpose of putting the test. The principle, however, is clear. If a cruiser stops a vessel in the exercise of police power, he takes the chance of her turning out to be subject to the exercise of that power by him. If she proves to be a vessel of his own nation, or of one that has conceded to him that right, he turns out to have been in the exercise of a right ab initio; and neither he nor his nation is bound to make apology or compensation, though the vessel proves innocent of the crime suspected. But, if the vessel proves not to be subject to his police power, then he turns out to have been a trespasser ab initio, whether the vessel proves innocent or guilty of the crime suspected. He is liable in that case, not for having stopped an innocent vessel, but for having stopped one not subject to his inspection. The mistake of the cruiser, however natural or honest, is not a justification. It is only an excuse, addressing itself to the consideration of the government whose vessel he has interfered with.

What has been said heretofore by unofficial writers is of less consequence, now that nations themselves have taken the matter in hand and settled it. It is of historical interest, however, to record that Hautefeuille (Droits des Nat. Neutr. tom. iii. p. 471-487), Massé (Droit Comm. i. 291), Ortolan (Règl. Intern. i. 242, 258-262), and De Cussy (Droit Marit. ii. 385) agree with Wheaton, that neither visit nor search can be exercised in time of peace; and such seems to be the opinion of Riquelme (i. 236), Heffter (europ. Völkr. § 168), and De Pistoye et Duverdy (Traité des Prises, tit. i. ch. 3, § 2). Dr. Twiss, in his opinion furnished to the Italian Government, March 22, 1858, in the case of The Cagliari,' says that, in time of peace, no apprehension of a violation of municipal law gives a cruiser a right to detain and visit a vessel at

governed by the lex fori.90 Thus the lex domicilii forms the law in respect to a testament of personal property or succession ab intestato, if the will is made, or the party on whom the succession devolves resides, in a foreign country; whilst at the same time the lex fori of the State in whose tribunals the suit is pending determines the forms of process and the rules of evidence and prescription.

sea.

Kent, in the text of his Commentaries, does not notice a distinction between visit and search; but, in a note to page 153 (a) in later editions, a right of approach or intervisitation of vessels at sea, to ascertain nationality, seems to be admitted. Dr. Phillimore (iii. 420-424) defends the distinction, and cites the note to Kent with approbation. At the same time, he seems to think the question is, whether a British cruiser may stop and visit a vessel under an American flag; and that the United States have denied such a right (p. 421). But the carrying American flags or papers is a fact as to which nothing can be predicated affecting a right to visit. If the vessel was American, she was exempt; if not, the American Government claims no interest, although she carried its flag. If an officer is required by his warrant to arrest John Doe, charged with a crime, and stops a man wearing the dress and using the name of Richard Roe, and compels him to submit to reasonable examinations of his person and papers to ascertain, not his guilt or innocence, but whether he is John Doe, then, if he turns out to be John Doe, Richard Roe has no cause of complaint; but, if he proves to be Richard Roe, the officer is a trespasser, though acting in good faith. This analogy may serve to clear up the mist that seems to cover the subject as it has been viewed by some writers. Halleck (Intern. Law, 597–605) carefully examines the subject, and declares that no continental writer has recognized the distinction between visit and search as rights, in time of peace; denies the accuracy of the reasoning of Dr. Phillimore; and suggests that the note to Kent contradicts the text, and rests on the authority of the annotator, and not of Kent himself. It is needless to say that Mr. Wheaton, in his diplomatic correspondence as well as in his tracts and commentaries, has always denied the distinction, in principle as well as on authority. Dr. Woolsey (§ 196) agrees, that neither visit nor search can be made, as a right, to ascertain national character; but offers a suggestion (§ 201), that such inquiry as is necessary to ascertain nationality might well be granted by nations.

Third, CONVENTIONS AND PRACTICE OF NATIONS. The details of the treaties on this point are given in note 85, ante, "Slave Trade as Piracy." The summary may be stated thus: Nations do not agree that the slave trade is piracy. When treated as such, it is under municipal law, or between two or more nations by virtue of treaties confessedly in addition to the law of nations. No treaties distinguish between a right of visit and a right of search. Where nations have conceded to the cruisers of each other any reciprocal right in time of peace over vessels of each other, whether generally or within geographical limits, the right conceded has been a right to make such detention and examination as is reasonable for the ascertainment both of national character and of guilt or innocence; and they usually either provide for trial by mixed tribunals, or require the persons found on board to be sent for trial to the nation to which they belonged.] — D.

[90 Savigny (System, viii. §§ 366-7) contends for the lex loci rei sitæ in mobilia, as well as immobilia, as the most reasonable and convenient. Woolsey (Introd. § 71) seems to lean to that opinion, to which he says the German publicists also incline.] — D..

Succes

tato.

§ 136. Though the distribution of the personal effects sion to per- of an intestate is to be made according to the law of the sonal property ab intes- place where the deceased was domiciled, it does not therefore follow that the distribution is in all cases to be made by the tribunals of that place to the exclusion of those of the country where the property is situate. Whether the tribunal of the State where the property lies is to decree distribution, or to remit the property abroad, is a matter of judicial discretion to be exercised according to the circumstances. It is the duty of every government to protect its own citizens in the recovery of their debts and other just claims; and in the case of a solvent estate it would be an unreasonable and useless comity to send the funds abroad, and the resident creditor after them. But if the estate be insolvent, it ought not to be sequestered for the exclusive benefit of the subjects of the State where it lies. In all civilized countries, foreigners in such a case, are entitled to prove their debts and share in the distribution. (a)

Foreign

will, how

effect in another

country.

§ 137. Though the forms in which a testament of percarried into sonal property, made in a foreign country, is to be executed, are regulated by the local law, such a testament cannot be carried into effect in the State where the property lies until, in the language of the law of England, probate has been obtained in the proper tribunal of such State, or, in the language of the civilians, it has been homologated, or registered, in such tribunal. (a)

So, also, a foreign executor, constituted such by the will of the testator, cannot exercise his authority in another State without taking out letters of administration in the proper local court. Nor can the administrator of a succession ab intestato, appointed ex officio under the laws of a foreign State, interfere with the personal property in another State belonging to the succession, without having his authority confirmed by the local tribunal.

Conclu

§ 138. The judgment or sentence of a foreign tribunal siveness of competent jurisdiction proceeding in rem, such as the sentences of Prize Courts under the law of nations, or Admiralty and Exchequer, or other revenue courts,

of foreign sentences

in rem.

(a) Kent's Comm. on American Law, 5th edit. ii. 431, 432, and the cases there cited.

(a) Wheaton's Rep. xii. 169, Armstrong v. Lear. Code Civil, liv. iii. tit 2, art. 1000.

under the municipal law, are conclusive as to the proprietary interest in, and title to, the thing in question, wherever the same comes incidentally in controversy in another State.

Whatever doubts may exist as to the conclusiveness of foreign sentences in respect of facts collaterally involved in the judgment, the peace of the civilized world and the general security and convenience of commerce obviously require, that full and complete effect should be given to such sentences, wherever the title to the specific property, which has been once determined in a competent tribunal, is again drawn in question in any other court or country.

of property

rupt pro

§ 139. How far a bankruptcy declared under the laws Transfer of one country will affect the real and personal property of depor of the bankrupt situate in another State, is a question of eign bankwhich the usage of nations, and the opinions of civil- ceedings. ians, furnish no satisfactory solution. Even as between co-ordinate States, belonging to the same common empire, it has been doubted how far the assignment under the bankrupt laws of one country will operate a transfer of property in another. In respect to real property, which generally has some indelible characteristics impressed upon it by the local law, these difficulties are enhanced in those cases where the lex loci rei sita requires some formal act to be done by the bankrupt, or his attorney specially constituted, in the place where the property lies, in order to consummate the transfer. In those countries where the theory of the English bankrupt system, that the assignment transfers all the property of the bankrupt, wherever situate, is admitted in practice, the local tribunals would probably be ancillary to the execution of the assignment by compelling the bankrupt, or his attorney, to execute such formal acts as are required by the local laws to complete the conveyance. (a)

The practice of the English Court of Chancery, in assuming jurisdiction incidentally of questions affecting the title to lands in the British colonies, in the exercise of its jurisdiction in personam, where the party resides in England, and thus compelling him, indirectly, to give effect to its decrees as to real property situate out of its local jurisdiction, seems very questionable on principle, unless where it is restrained to the case of a party who has fraudu

(a) See Lord Eldon's Observations in Selkrig v. Davies, Rose's Cases in Bankruptcy, ii. 311. Vesey's Rep. ix. 77, Banfield v. Solomon.