to exercise their rights and appear in the courts either as plaintiffs or defendants, subject to the laws of such other Party." 1

A peculiar condition is found in the French law which fails to give its national courts jurisdiction over suits between two foreigners. French courts, however, in view of the fact that they were not prohibited from taking jurisdiction, have assumed it in a long line of cases, so that while the rule leaves them without jurisdiction, the exceptions have narrowed the rule very greatly.2 Belgium, which originally followed France, abolished this provision in 1876.

Article 14 of the French civil code contains a unique provision, its harshness being particularly striking in view of the leadership assumed by France in ameliorating the condition of aliens. This article provides:

"A foreigner, even though not a resident of France, may be cited before the French tribunals, for the execution of obligations contracted in France, with a Frenchman; and may also be sued in the French tribunals upon obligations contracted by him abroad, with a Frenchman."

A French plaintiff may, therefore, compel a non-resident alien defendant to appear before the French courts. Esperson and other writers consider this an outrageous rule, and indeed judgments of French courts pronounced against an alien non-resident defendant who does not appear are not executed by foreign courts.3

The inability of non-resident alien representatives of a deceased alien to sue in some states of the United States for injuries resulting in death by wrongful act, notwithstanding the provisions of a treaty granting to aliens "protection and security for their persons and property and . . . the same rights and privileges as are granted to the natives" caused an amendment of the treaty of 1871 with Italy (an Italian subject was involved in the case cited) reading as follows:

1 Treaty of Feb. 21, 1911 between the United States and Japan, art. 7, Treaty series, No. 558, p. 5, Malloy, Treaties, etc., III (1913), 79.

2 Jurisdiction in actions between foreigners, by A. Pillet, 18 Harvard Law Rev. 325. 3 Beale in 26 Harvard Law Rev., 209 et seq.; Pillet in 18 Harvard Law Rev. 325 et seq.

4 Maiorano v. B. & O. R. R. Co., 213 U. S. 268 at p. 274-275, decided by Mr. Justice Moody. The action was begun in Pennsylvania, under a statute of that state. See also McGovern v. Philadelphia & R. Ry. Co. (1914), 209 Fed. 975.

"The citizens of each of the high contracting parties shall receive in the States and Territories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any state or national law which establishes a civil responsibility for injuries or for death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of such relatives or heirs; and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter." 1

The advantages of these rights are not apparently available to other aliens who by treaty of their national government enjoy most favored nation treatment.2 Attention may again be drawn to the fact that the "equal protection" guaranteed in treaties does not signify an identity of rights with nationals, but merely an equal protection in such rights as are granted.

The execution of foreign judgments is an intricate and complicated branch of the law. Without entering into any discussion of the subject, four principles which govern the practice of the several important countries may be pointed out:

1. No execution is issued on a foreign judgment, but it is admitted as proof of its validity, either alone or with additional evidence of the court's jurisdiction over person and subject-matter, in a new action for a local judgment. When regarded as conclusive proof, the new action becomes a mere formality of registration. With numerous variations, this is the system adopted in Great Britain, the United States, Monaco, Peru, Russia, Servia, Switzerland and Uruguay. 2. An exequatur is issued on the foreign judgment without reëxamining it and without requiring reciprocity, provided it be regular in form, rendered by a court having jurisdiction, and its execution be compatible with local public policy. This system has been adopted by the Argentine Republic, Bulgaria, Italy, Portugal and the Congo. 3. The same system as the second, except that reciprocity is re

1 Treaty of February 25, 1913, art. 1.

*Dictum, as to British subjects, in McGovern v. Philadelphia, 209 Fed. 975. Had the action arisen after the treaty with Italy had gone into effect, it is believed that the better reasoning would have given effect to the most favored nation clause. See 7 A. J. I. L. (1913) 370.

quired. In this class are Austria-Hungary, Germany, Egypt, Spain, Brazil, Mexico and Roumania.

4. In the last system, the judgment is reëxamined before the exequatur issues. This is the practice of France, Chile, Denmark, Haiti, Luxemburg, Netherlands, Norway and Sweden.

Numerous treaties, which the civil law countries frequently conclude, regulate the effect and the execution of foreign judgments as between the contracting parties.2

§ 39. Private Rights.

In taking up the rights of the alien in private law, the ownership of real property may first be considered. The right to acquire immovables, by purchase or descent, and to own and dispose of them may be forbidden to aliens. While no longer the general rule, a few states, for economic or political reasons, still restrict the ownership of real property within their territory to nationals. This is still the case in some fifteen states of the United States, in Russia within certain districts, and in Roumania, and was the case in Turkey until 1867 and in England until 1870. Mexico forbids aliens to acquire real property within sixty miles of the frontier or thirty miles of the sea. In a few other countries, like Japan and Haiti, the right to own realty is limited.3 Fiore traces these restrictive provisions to the feudal system. The practice had its origin perhaps in a fear that control of national territory by foreigners opened too great a danger of foreign influence, domination or conflict. Some writers consider it curious that in countries in which the requirement of citizenship for the enjoyment of civil rights is of least force, as in the United States and Great Britain, where rights are based on domicil, the national territory should be regarded as so peculiarly sacred. The disability of an alien

1 It seems, however, that the German courts refused to enforce against German insurance companies certain judgments obtained in California by American policyholders sustaining losses in the San Francisco earthquake and fire, notwithstanding that a reciprocal right would be granted in California. For. Rel. 1910, 522.

2 Despagnet, Dr. int. privé, § 201 et seq. On the whole subject see Despagnet, op. cit., §§ 190-209; Weiss, op. cit. V, 543-734; Piggott, F. T., Foreign judgments and jurisdiction, Hong Kong and London, 1908, 3 v.

'Moore's Dig. IV, 43 et seq.; for law in the United States, see ibid. 32 et seq.

to hold real property in the United States may be removed by treaty,1 and the treaty of 1778 between the United States and France allowed citizens of either country to hold lands in the other.2 By reason of the existing restrictive legislation of many of the states, the federal government, as a matter of policy, would hardly now conclude treaties granting aliens the right to hold real property in the United States, though there appears little doubt of its power so to do.3 At common law aliens could take by act of a party but not by operation of law; and they may convey or devise to another, but such title is always liable to be divested at the pleasure of the state by office found. It has even been held that an alien enemy might take lands by devise until office found.5

A legal prohibition to own real estate, as was the case in Haiti in 1885, did not prevent the United States from making a claim on account of an injury to real property owned there by an American citizen, notwithstanding Haiti's defense of his legal inability to own such property. The United States contended that his title was merely defeasible and that he owned something, for the arbitrary spoliation of which by the government he had a claim for redress. Until legal proceedings are instituted to oust the alien, his inchoate interests should be protected, and even if his title was one of possession only, this must be protected until by due process of law he is dispossessed."

The evolution of the right of succession to real property is characteristic of the history of the rights of aliens. The absolute prohibition to succeed which existed up to the eighteenth century was replaced by the imposition of severe taxes under the system of the droit d'aubaine. After the gradual abolition of the droit d'aubaine

1 Orr v. Hodgson, 4 Wheat. 453.

2 Carneal v. Banks, 10 Wheat. 181.

Butler, C. H., Treaty-making power of the U. S., New York, 1902, II, § 330 et seq.; Burr, C. H., Treaty-making power of the U. S., Philadelphia, 1912, p. 339 et seq. and Ware v. Hylton, 3 Dallas, 199; Chirac v. Chirac, 2 Wheat. 259; Fairfax v. Hunter, 7 Cranch, 603; Hauenstein v. Lynham, 100 U. S. 483; and Geoffroy v. Riggs, 133 U. S. 258.

4

* Hauenstein v. Lynham, 100 U. S. 483; Martin v. Hunter, 1 Wheat. 304; Governeur v. Robertson, 11 Wheat. 332.

Fairfax v. Hunter, 7 Cranch, 603.

6 For. Rel., 1885, pp. 525–526.

by statute and treaty, the right to succeed has been freely granted, though in some states it is still conditioned upon reciprocity.1

As it is against the policy of the United States to decree forfeitures, treaties have usually provided that aliens who cannot take property by descent shall have the right to dispose of their property and remove the proceeds within a reasonable time. So, for example, article 2 of the treaty of May 8, 1848, between the United States and Austria-Hungary, provides:

"Where, on the death of any person holding real property, or property not personal, within the territories of one party, such real property would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged, according to circumstances, and to withdraw the proceeds thereof, without molestation, and exempt from any other charges than those which may be imposed in like cases upon the inhabitants of the country from which such proceeds may be withdrawn." 2

The payment of a droit de détraction, or tax on the removal of alien property from the state, has since the beginning of the nineteenth century been practically abolished by statute and treaty.

The power to acquire, own and dispose of personal property is a universally recognized right of aliens. It is often guaranteed by treaty, subject merely to the payment of the same taxes as are paid by citizens. The following clause is typical of the treaties concluded by the United States:

"The citizens or subjects of each of the contracting parties shall have power to dispose of their personal property within the States of the other, by testament, donation or otherwise; and their heirs, legatees and

1 E. g., in Austria, Sweden and the United States. Art. 726 of the French civil code amended the liberal principles of the French revolutionary period which had completely abolished the droit d'aubaine. By the French law of July 14, 1819, art. 726 of the Civil Code, which conditioned the right to succeed upon diplomatic reciprocity, was repealed. This liberal principle was followed in the Belgian law of April 27, 1865 and has been adopted by Spain, Italy, Denmark, the Netherlands and Great Britain. Succession taxes are due from non-resident aliens on estates in the territory as from nationals.

2 Malloy, Treaties, etc., 1910, I, 34. See as to the construction of a similar treaty with Switzerland, Hauenstein v. Lynham, 100 U. S. 483.