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 site 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. (e) 46

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

(c) Folix, Droit International Privé, § 52. "Hinc Frisius habens agros et domos in provincia 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.

[* Story's Conflict of Laws, §§ 424, 434, 448. Burge on Col. and For. Laws, ii. 840-870; iv. 150, 576. Felix, 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 sitæ ; 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. Ævi, 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.

[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.

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. (d)

Lex domi- § 83. As to personal property, the lex domicilii of its cilii. owner prevails over the law of the country where such property 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. (a) Yet it had once been doubted, how far a British subject could, by changing his native domicil for a foreign domicil without the British empire, change the rule of succession to his personal property in Great Britain; though it was admitted that a change of domicil, within the empire, as from England to Scotland, would have that effect. (b) 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 domicil 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. (c)

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 domiciled at the time of its execution, is valid in every other

(d) Treaty of 1828, between the United States and Prussia, art. 14. Elliot's Am. Diplom. Code, i. 388.

(a) 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., 196; Merlin, Répertoire, tit. Loi, § 6, No. 3; Fölix, Droit International Privé, § 37.

(b) Per Sir J. Nicholl, in Curling v. Thornton, Addams' Eccles. Rep. ii. 17. (c) Stanley v. Bernes, Haggard's Eccles. Rep. iii. 393-465. Moore v. Davell, iv. 348, 354.

country, and is to be interpreted and given effect to according to the ler 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 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 domicil, 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. (d) 48

§84. The sovereign power of municipal legislation Personal also extends to the regulation of the personal rights of status. the 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. (a)

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,

(d) Trotter v. Trotter, Wilson and Shaw's Rep. iii. 407–414. [Story's Conflict of Laws, §§ 465-479. Burge's Col. and For. Laws, iv. 169, 217, 577-581, 588-590. Boullenois, ii. App. 38; i. 696–721. Fölix, Conflit des Lois, 204-216, 346-360 (Revue Etr. et Franc. 1840). P. Voet de Stat. 255 (A.D. 1715). Hertii Opera, de Coll. Leg. 112 (A.D. 1737). J. Voet, Ad. Pand. I. lib. i. pp. 44, 45; lib. xxviii. tit. 1; II. lib. xxviii. lib. xxxviii. Rodenburg de Div. Stat. tit. 2, ch. 5. Huberus, lib. i. tit. 3. Henry on Foreign Law, 97.] — D.

(a) “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. lib. i. tit. 3, de Conflict. Leg. § 2.