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§ 78. The first general principle on this subject results Conflict immediately from the fact of the independence of nations. of laws. Every nation possesses and exercises exclusive sovereignty and jurisdiction throughout the full extent of its territory. It follows, from this principle, that the laws of every State control, of right, all the real and personal property within its territory, as well as the inhabitants of the territory, whether born there or not, and that they affect and regulate all the acts done, or contracts entered into within its limits.

Consequently, "every State possesses the power of regulating the conditions on which the real or personal property, within its territory, may be held or transmitted; and of determining the state and capacity of all persons therein, as well as the validity of the contracts and other acts which arise there, and the rights and obligations which result from them; and, finally, of prescribing the conditions on which suits at law may be commenced and carried on within its territory." (a)

The second general principle is," that no State can, by its laws, directly affect, bind, or regulate property beyond its own territory, or control persons who do not reside within it, whether they be native-born subjects or not. This is a consequence of the first general principle; a different system, which would recognize in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights among different States, and the exclusive sovereignty which belongs to each of them." (b)

From the two principles, which have been stated, it follows that all the effect, which foreign laws can have in the territory of a State, depends absolutely on the express or tacit consent of that State. A State is not obliged to allow the application of foreign laws within its territory, but may absolutely refuse to give any effect to them. It may pronounce this prohibition with regard to some of them only, and permit others to be operative, in whole or in part. If the legislation of the State is positive either way, the tribunals must necessarily conform to it. In the event only of the law being silent, the courts may judge, in the particular cases, how far to follow the foreign laws, and to apply their provisions. The express consent of a State, to the application of foreign laws within its territory, is given by acts passed by (a) Fölix Droit Int. Privé, § 9. (b) Id. § 10.

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.44

§ 79. 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 [44 Story's Conflict of Laws, §§ 17-22. Boullenois, Traité des Statuts, i. 2, 3, 4, 152. Henry on Foreign Law, Part I. ch. 1, § 1. Huberus, lib. i. tit. 3, § 2. Vattel, Part II. ch. 7, §§ 84, 85. Rodenburg de Stat. ch. 3, § 1, p. 7. Voet de Stat. ch. 2, § 4, n. 7, pp. 124, 138, 139. Bank of Augusta v. Earle, Peters's Rep. xiii. 584-591. Blanchard v. Russell, Mass. Rep. xiii. 4. Henry on Statutes, Part I. ch. 1, p. 1.] -D.

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 sita 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 sita 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 sita must govern in determining I. The capacity or incapacity

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