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Part II. 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 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 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.

$ 79. No obligation as to foreign laws.

There is no obligation, recognised 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 cause 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 Chap. II. 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 (d).

"Above all things," says President Bohier, "we must remember 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 neighbouring 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 neighbours. 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" (e).

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 con

(d) Caldwell v. Vanvlissigen, 9 Hare,

425.

(e) Bohier, Observations sur la coutume de Bourgogne, ch. 23, §§ 62, 63, P. 457.

$ 80. Rules laid Huberus.

down by

Part II. sidered as subjects, whether their residence is permanent or temporary.

$81.

Lex loci rei sitæ.

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 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 (ƒ).

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

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

situated, cannot suffer its own laws in this respect to be Chap. II. 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 (g).

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 confederation 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 (h).

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 (¿).

The main reason for this divergence lies in the fact that continental conveyancing has always supposed public acts as the rule, and made but a comparatively sparing use of the private documents which constitute Anglo-American titles. The inconvenience arising from the inability to dispose of land unless the owner was in the lex situs, naturally led to the rule that conveyances of immoveables are rendered valid by the lex loci actus. On the other hand, the Anglo-American law prescribes formalities which may be performed anywhere, and are

(9) Huberus, liv. i. tit. 3, de Conflictu Leg. § 15.

(h) Robinson v. Campbell, 3 Wheaton, 212; U. S. v. Crosby, 7 Cranch, 115. Coppin v. Coppin, 2 P. W. 291; Brodie v. Barry, 2 Ves. & Beames, 127; McGoon

v. Scales, 9 Wallace, 23; Freke v. Lord
Carberry, L. R. 16 Eq. 461; Adams v.
Clutterbuck, 10 Q. B. D. 403; Wharton,
§ 372.

(i) Fælix, Droit International Privé,
§ 52; Huberus, ubi supra,

§ 81a. Reasons for

this diffe

rence.

Part II. not contrary to the law of any nation, and it therefore justly refuses to give effect to transfers of land, unless such formalities have been complied with (). However, no one maintains that a form expressly imposed as an exclusive one by the lex situs, can ever be dispensed with. Thus the French law of the 23rd March, 1855, requires immoveable property in France to be transferred inter vivos by a transcription in the bureau des hypothèques, and no transfer is valid. without such transcription (7).

§ 82. Droit d'aubaine.

This diversity of opinion is now of no great importance, because the laws of most European States have adopted the principle that land is subject to the lex rei sita. This is done expressly by the codes of France, Belgium, Spain, Holland, Prussia, Austria, Saxony, Italy and Greece (m). Another point to be decided by the lex rei sita is the character of the property, that is, whether it be realty or not, for every nation may impress upon property in its dominions any character it pleases (n).

The municipal laws of all European countries 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 (moveable or immoveable) 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 (o). 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 reci(k) Westlake, § 82.

(7) Ibid. § 87. Tripier, Codes Français, p. 1618.

(m) France, Civil Code, § 3; Belgium, id. art. v. sub-s. 1; Holland, dr. gen. §7; Spain, Civil Code, § 5; Prussia, Allegemeines Landrecht, Emleitung, § 28; Austria, Code Civil, art. 3; Saxon Civil Code, § 10; Italy, Civil Code, Disposition preliminaire, art. 7; Civil Code of Greece, art. 5.

(n) Story,

447. Nelson, Private

International Law, pp. 147, 148.

(0) Du Cange (Gloss. Med. Ævi, voce Albinagium et Albani) derives the term from advene. 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.

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