waive the local law which has impressed certain indelible qualities upon immovable property within the territorial jurisdiction.1

American agents which are complained of by Austria. Her claim for satisfaction on that account has been carefully considered, and is respectfully declined.

66

Being convinced that the seizure and imprisonment of Koszta were illegal and unjustifiable, the President also declines to give his consent to his delivery to the Consul-General of Austria at Smyrna; but, after a full examination of the case, as herein presented, he has instructed (the Secretary of State) to communicate to Mr. Hülsemann his confident expectation that the Emperor of Austria will take the proper measures to cause Martin Koszta to be restored to the same condition he was in before he was seized in the streets of Smyrna on the 21st of June last." Cong. Doc. 33 Cong. 1 Sess. Senate, Ex. Doc. No. 1. The further discussion of this question was rendered unnecessary by an arrangement, concluded between the American and Austrian legations, at Constantinople. It was agreed that Koszta should embark under the surveillance of their respective consular authorities at Smyrna, on board of an American ship-ofwar, if there was one there, otherwise on board of a merchant vessel, which should proceed immediately to the United States without stopping at any intermediate port, except in case of necessity, and that Koszta should be provided with an American passport, which should prohibit his changing his route before landing in this country. The Austrian government reserved the right of proceeding against him should he be again found in Ottoman territory. Cong. Doc. 33 Cong. 1 Sess. H. R. Ex. Doc. No. 91.

The protection which this country affords to naturalized citizens, or those who are clothed with its nationality, does not extend to defend them against the authorities of their own country, in case of their voluntary return to it. Mr. Marcy writes to Mr. Jackson, Chargé d'Affaires at Vienna, on 10th of January, 1854: "I have carefully examined your despatches relating to the case of Simon Tousig, and regret to find that it is one which will not authorize a more effective interference than that which you have already made in his behalf. It is true he left this country with a passport issued from this department; but as he was neither a native-born nor naturalized citizen, he was not entitled to it. It is only to citizens that passports are issued."

"Assuming all that could possibly belong to Tousig's case that he had a domicile here and was actually clothed with the nationality of the United States there is a feature in it which distinguishes it from that of Koszta. Tousig voluntarily returned to Austria, and placed himself within the reach of her municipal laws. He went by his free act under their jurisdiction, and thereby subjected himself to them. If he had incurred penalties or assumed duties while under these laws, he might have expected they would be enforced against him, and should have known that the new political relation he had acquired, if indeed he had acquired any, could not operate as a release from these penalties. Having

1 Kent's Commentaries on American Law, vol. ii. pp. 182, 186, Note, 5th edit.

As to personal property (mobilia) the lex loci contractûs or lex domicilii may, in certain cases, prevail over that of the place

been once subject to the municipal laws of Austria, and while under her jurisdiction violated these laws, his withdrawal from that jurisdiction and acquiring a dif ferent national character would not exempt him from their operation whenever he again chose to place himself under them. Every nation, whenever its laws are violated by any one owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the penalties incurred upon the transgressor, if found within its jurisdiction. The case is not altered by the character of the laws, unless they are in derogation of the well-established international code. No nation has a right to supervise the municipal code of another nation, or claim that its citizens or subjects shall be exempted from the operation of such code, if they have voluntarily placed themselves under it. The character of the municipal laws of one country does not furnish a just ground for other States to interfere with the execution of these laws, even upon their own citizens, when they have gone into that country and subjected themselves to its jurisdiction. If this country can rightfully claim no such exemption for its native-born or naturalized citizens, surely it cannot claim it for those who have at most but inchoate rights of citizens.

"The above principle, that persons, being citizens or subjects of one State, and having violated the laws of another State, may be punished while they remain under, or are fairly brought within, the jurisdiction of the latter State, is too well established to be made a matter of serious controversy. It is clearly affirmed in, and indeed is the basis of, every extradition treaty. Each contracting party agrees to deliver up to the other, fugitive offenders generally including its own citizens as well as strangers-for specified offences, to be dealt with according to the laws of the country demanding the surrender of them. It is true that there are some kinds of offences which are not, and ought not to be, included in extradition treaties: such, for instance, as are called political offences; yet, because one nation will not enter into a compact to deliver such offenders to another, that does not justify the inference that if such offenders go voluntarily within the jurisdiction of the country whose laws they have offended, they may not be rightfully punished, or that they can claim exemption from punishment if they were citizens of another country when the offence was committed, or had, after committing it, acquired another nationality.

"The country whose protection is invoked cannot, it is conceived, properly interpose in such a case, unless the municipal law, the violation of which is charged, contravenes some right of such country acquired by treaty stipulations, or otherwise.

"The principle does not at all interfere with the right of any State to protect its citizens, or those entitled to its protection, when abroad, from wrongs and injuries from arbitrary acts of oppression or deprivation of property, as contradistinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves. I do not discover any principle in virtue of which this government can claim, as

where the property is situated. Huberus holds that not only the marriage contract itself, duly celebrated in a given place, is valid in all other places, but that the rights and effects of the contract, as depending upon the lex loci, are to be equally in force everywhere. If this rule be confined to personal property, it may be considered as confirmed by the unanimous authority of the public jurists, who unite in maintaining the doctrine that the incidents and effects of the marriage upon the property of the parties, wherever situated, are to be governed by the law of the matrimonial domicile, in the absence of any other positive nuptial contract.2 But if there be an express ante-nuptial contract, the rights of the parties under it are to be governed by the lex loci contractus.3

Effect of bankrupt discharge

By the general international law of Europe and America, a certificate of discharge obtained by a bankand title of rupt in the country of which he is a subject, and where the contract was made and the parties domiciled, is valid to discharge the debtor in every other country;

assignees in

another country.

a matter of right, the release of Tousig. He has voluntarily placed himself within the jurisdiction of the laws of Austria, and is suffering, as appears by the case as you present it, for the acts he had done in violation of those laws while he was an Austrian subject." Cong. Doc. 33 Cong. 1 Sess. H. R. Ex. Doc. No. 41.

A case presenting the question how far a naturalized citizen of the United States, on his return to the country of his origin, could claim the interposition of the American legation to protect him against the performance of the duties imposed on him as a native subject, by the sovereign whose allegiance he had renounced, occurred in 1840, during Mr. Wheaton's residence at Berlin. To the application of a naturalized citizen of the United States, who had been required to perform military duty in Prussia, of which he was a native, he replied; "Had you remained in the United States or visited any other foreign country (except Prussia) on your lawful business, you would have been protected by the American authorities at home and abroad, in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But having returned to the country of your birth, your native domicile and national character revert (so long as you remain in the Prussian dominions,) and you are bound in all respects to obey the laws, exactly as if you had never emigrated." Mr. Wheaton to J. P. Knocke, 24th July, 1840. MS. Despatches.

1 "Porro, non tantum ipsi contractus ipsæque nuptiæ, certis locis ritè celebratæ, ubique pro justis et validis habentur; sed etiam jura et effecta contractuum nuptiarumque, in iis locis recepta, ubique vim suam obtinebunt." Huberus, 1. i. tit 3, de Conflict. Leg. § 9.

2 Fælix, § 66.

3 Johnson's Ch. Rep. vol. iii. p. 211. De Couche v. Savetier.

but the opinions of jurists and the practice of nations have been much divided upon the question, how far the title of his assignees or syndics will control his personal property situated in a foreign country, and prevent its being attached and distributed under the local laws in a different course from that prescribed by the bankrupt code of his own country. According to the law of most European countries, the proceeding which is commenced in the country of the bankrupt's domicile draws to itself the exclusive right to take and distribute the property. The rule thus established is rested upon the general principle that personal (or movable) property is, by a legal fiction, considered as situated in the country where the bankrupt had his domicile. But the principles of jurisprudence, as adopted in the United States, consider the lex loci rei sila as prevailing over the lex domicilii in respect to creditors, and that the laws of other States cannot be permitted to have an extra-territorial operation to the prejudice of the authority, rights, and interests of the State where the property lies. The Supreme Court of the United States has therefore determined, that both the government under its prerogative priority, and private creditors attaching under the local laws, are to be preferred to the claim of the assignees for the benefit of the general creditors under a foreign bankrupt law, although the debtor was domiciled and the contract made in a foreign country.'

3. The general rule as to the application of personal The lex loci statutes yields in some cases to the operation of the lex contractus loci contractus.

often causes exceptions to this rule.

Thus a bankrupt's certificate under the laws of his own country cannot operate in another State, to discharge him from his debts contracted with foreigners in a foreign country. And though the personal capacity to enter into the nuptial contract as to age, consent of parents, and prohibited degrees of affinity, &c., is generally to be governed by the law of the State of which the party is a subject, the marriage ceremony is always regulated by the law of the place where it is celebrated; and if valid there,

1 Bell's Commentaries on the Law of Scotland, vol. ii. pp. 681-687. Rose's Cases in Bankruptcy, vol. i. p. 462. Kent's Commentaries on American Law, vol. ii. pp. 393, 404-408, 459, 5th edit. Cranch's Rep. vol. v. p. 289— Harrison v. Sterry. Wheaton's Rep. vol. xii. pp. 153-163-Ogden v. Saunders.

it is considered as valid everywhere else, unless made in fraud of the laws of the country of which the parties are domiciled subjects.

§ 7. Lex loci contrac

II. The municipal laws of the State may also opetus. rate beyond its territorial jurisdiction, where a contract made within the territory comes either directly or incidentally in question in the judicial tribunals of a foreign State.

A contract, valid by the law of the place where it is made, is, generally speaking, valid everywhere else. The general comity and mutual convenience of nations have established the rule, that the law of that place governs in every thing respecting the form, interpretation, obligation, and effect of the contract, wherever the authority, rights, and interests of other States and their citizens are not thereby prejudiced.1

Exceptions

This qualification of the rule suggests the exceptions to its opera- which arise to its application. And,

tion.

1. It cannot apply to cases properly governed by the lex loci rei sitæ, (as in the case, before put, of the effect of a nuptial contract upon real property in a foreign State,) or by the laws of another State relating to the personal state and capacity of its citizens.

2. It cannot apply where it would injuriously conflict with the laws of another State relating to its police, its public health, its commerce, its revenue, and generally its sovereign authority, and the rights and interests of its citizens.

Thus, if goods are sold in a place where they are not prohibited, to be delivered in a place where they are prohibited, although the trade is perfectly lawful by the lex loci contractus, the price cannot be recovered in the State where the goods are deliverable, because to enforce the contract there would be to sanction a breach of its own commercial laws. But the tribunals of one country do not take notice of, or enforce, either directly or incidentally, the laws of trade or revenue of another State, and

"Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicitur." Huberus, l. i. tit. 3, de Conflict. Leg. § 2. "Effecta contractuum, certo loco initorum, pro jure loci illius alibi quoque observantur, si nullum inde civibus alienis creetur præjudicium, in jure sibi quæsito." Ib. § 11.