BOOK II. ant's judge is the judge of the place where that defendant has CHAP. VIII. his settled abode, or the judge of the place where the defendant is, when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such from the French drawer, and of the bills having been drawn in such a form in France that the holder could not recover on them in France, was no objection to his recovering on them in an English court." (Wynne v. Jackson, 2 Russ. 352; but see observations in Wynne v. Cullender, 1 Russ. 293.) In cases where the foreign law and rule of construction would prevail, care must be observed to establish it, and have it stated on the record, for otherwise the contract will be construed the same as an English contract; and therefore it was held that an instrument executed by foreigners in a foreign country, as in Spain, must, on demurrer, be construed by the same grammatical rules as English contracts, and according to the obvious import of its terms, unless there be an allegation in the bill in equity, setting it forth, and that, according to the law of the country in which it was executed, the true construction of it is different. (The King of Spain and Others v. Machado and Others, 4 Russ. 224.) Where an English commission precedes a Scotch sequestration, all Scotch personal estate is liable to the commission, and not to the sequestration. (Ex parte Cridland, 3 Ves. & B. 100; when otherwise, Ex parte Geddes, 1 Glyn & J. 414.) Legacy in a foreign country, and coin, as sicca rupees, by a will in India, if paid by remittance to this country, the payment must be according to the current value of the rupee in India, without regard to the exchange or the expense of remittance: so, as to other countries. (Cockerell v. Barber, 16 Ves. 461.) With respect to the proof of foreign law, it must in general be established as a fact, and the court cannot take notice of the same judicially. (Freemoult v. Dedire, 1 P. Wms. 431; Ex parte Cridland, 3 Ves. & B. 99; {Talbot v. Seeman, 1 Cranch, 1.} It is not absolutely necessary to prove it by the production of an examined copy; but a printed copy of the Cinq Codes of France, produced by the French viceconsul resident in London, purchased by him at a bookseller's shop at Paris, was received as evidence of the law of France, upon which the Court in England would act in deciding upon the validity of a marriage in France between British subjects. (Lacon v. Higgins, 1 Dowl. & Ryl. Ni. Pri. Rep. 38; 3 Stark. 176, S. C.) And it has been supposed that the same point was decided in Sir Thomas Picton's case, where the question arose as to the right of inflicting torture in the island of Trinidad, formerly under the dominion of Spain; and the attorney-general of the island was examined as a witness, and the court allowed him to refer to printed books purporting to contain the law of Spain; and Lord Ellenborough, C. J., expressed no doubt that such books were receivable as evidence of the law of Spain and Trinidad. (30 Howell's State Trials, 514; but see 1 Dowl. & Ryl. Ni. Pri. Rep. 42, n. (a).) In equity, it has been held that the foreign law must be verified by the affidavit of a professional person swearing positively, and not by the affidavit of another person not professionally acquainted with the law, and swearing only to information and belief. (Hill v. Reardon, Jacob, 89.) The best evidence is an affidavit or evidence of the foreign consul, or a foreign advocate of experience, stating verbatim the terms of the foreign law, when it was a written ediet, or in the nature of our statute law. (Flack v. Holm, 1 Jac. & Walk. 418.) As respects the claims of a sovereign of a foreign independent state upon a subject of Great Britain, it seems clear that he stands in the same situation as a private subject of such foreign state. (Greig v. Somerville, 1 Russ. & M. 388, case of the emperor of Russia's claim.) Lord Hawkesbury said, that a foreign power might legally apply to the courts of judicature, and might obtain redress, as for defamation or calumny (6 Russ. Mod. Europe, 20, ante, 143), excepting that, in respect of his dignity, he, like our king, is not to recover costs (ante, 154, Hullet v. King of Spain, 1 Dow. Rep. new ser. 177); and, if such sovereign has never been in England, the statute of limitations constitutes no bar; and in equity at any distance of time, however remote, whilst there is BOOK II. an estate. In this last case, as property of that kind is to be held according to the laws of the country where it is situ- CHAP. VIII. ated, and as the right of granting possession is vested in the ruler of the country, disputes relating to such property can only be decided in the state on which it depends. We have already shown (§ 84) how the jurisdiction of a nation ought to be respected by other sovereigns, and in what cases alone they may interfere in the causes of their subjects in foreign countries. to foreign ers. The sovereign ought not to grant an entrance into his state 2 104. Profor the purpose of drawing foreigners into a snare: as soon tection due as he admits them, he engages to protect them as his own subjects, and to afford them perfect security, as far as depends on him. Accordingly, we see that every sovereign who has given an asylum to a foreigner, considers himself no less offended by an injury done to the latter, than he would be by an act of violence committed on his own subject. Hospitality was in great honour among the ancients, and even among barbarous nations, such as the Germans. Those savage nations who treated strangers ill, that Scythian tribe who sacrificed them to Diana,* were universally held in abhorrence; and Grotius justly says that their extreme ferocity excluded them from the great society of mankind. All other nations had a right to unite their forces in order to chastise them. duties. From a sense of gratitude for the protection granted to 105. Their him, and the other advantages he enjoys, the foreigner ought not to content himself with barely respecting the laws of the a fund in court, it will be decreed that the foreign sovereign shall be at liberty, by his ambassador, to go before the master and prove such debt due from an intestate's estate as he might be able, though not so as to prejudice any previous distribution (id. ibid. cases first stated). It has been recently decided, that a foreign sovereign has a right to sue in the English courts in equity as well as at law. (Hullett and Others v. King of Spain, 1 Dow. Rep. new ser. 169, and 2 Bligh, new ser. 31, in the House of Lords, on appeal from Court of Chancery.) The Constitution of the United States gives jurisdiction to the courts of the United States where foreign states are parties. The King of Spain v. Oliver, 2 Wash. C. C. Rep. 429.} If a foreign state sue in chancery, the bill must properly describe the plaintiff, so that he may, if thought fit, be served upon a cross bill. (The Columbian Government v. Rothschild, 1 By the maritime law materially The Taurians. See Grotius de Jure Belli et Pacis, lib. ii. cap. xx. ? xl. n. 7. CHAP. VIII. BOOK II. country; he ought to assist it upon occasion, and contribute to its defence, as far as is consistent with his duty as citizen of another state. We shall see elsewhere what he can and ought to do, when the country is engaged in a war. But there is nothing to hinder him from defending it against pirates or robbers, against the ravages of an inundation, or the [174] devastations of fire. Can he pretend to live under the protection of a state, to participate in a variety of advantages that it affords, and yet make no exertion for its defence, but remain an unconcerned spectator of the dangers to which the citizens are exposed? ¿ 106. To dens they are subject. He cannot, indeed, be subject to those burdens that have what bur- only a relation to the quality of citizens; but he ought to bear his share of all the others. Being exempted from serving in the militia, and from paying those taxes destined for the support of the rights of the nation, he will pay the duties imposed upon provisions, merchandise, &c., and, in a word, every thing that has only a relation to his residence in the country, or to the affairs which brought him thither. 107. Foreigners continue members of their own nation. 2 108. The The citizen or the subject of a state who absents himself for a time without any intention to abandon the society of which he is a member, does not lose his privilege by his absence: he preserves his rights, and remains bound by the same obligations. Being received in a foreign country, in virtue of the natural society, the communication, and commerce which nations are obliged to cultivate with each other (Prelim. §§ 11, 12; Book II. § 21), he ought to be considered there as a member of his own nation, and treated as such. The state, which ought to respect the rights of other nastate has no tions, and in general those of all mankind, cannot arrogate right over to herself any power over the person of a foreigner, who, of a foreign- though he has entered her territory, has not become her suber; (112) the person ject. The foreigner cannot pretend to enjoy the liberty of living in the country without respecting the laws: if he violates them, he is punishable as a disturber of the public peace, and guilty of a crime against the society in which he lives: but he is not obliged to submit, like the subjects, to all the commands of the sovereign: and, if such things are re (112) But, in ancient times, the Chancellor had jurisdiction, by writ of ne exeat, to restrain a foreigner or a British subject from going abroad and communicating intelligence to an enemy, or otherwise injurious to this state. And the Court of Chancery, from more to more, have assumed and established a jurisdiction over foreigners in favour of a private subject; so that, if a foreigner be here, and be about to depart, he may be restrained and compelled to give security for satisfying any oquit able claim, or even a demand at law in nature of an account, either upon a contract or transaction entered into in the foreign country, and although by the lex loci the foreigner could not have been arrested, (Flack v. Holm, 1 Jac. & W. 405; but see De Carriere v. Colonne, 4 Ves. 577); and it is now settled, that at law, a foreigner may be arrested in this country for a foreign debt, though he could not have been imprisoned in his own country. (De la Vega v. Vianna, 1 Barn. & Adolph. 284.) quired of him as he is unwilling to perform, he may quit the country. He is free at all times to leave it; nor have we a right to detain him, except for a time, and for very particular reasons, as, for instance, an apprehension, in war time, lest such foreigner, acquainted with the state of the country and of the fortified places, should communicate his knowledge to the enemy. (113) From the voyages of the Dutch to the East Indies, we learn that the kings of Corea forcibly detain foreigners who are shipwrecked on their coast; and Bodinus assures us,* that a custom so contrary to the law of nations was practised in his time in Ethiopia, and even in Muscovy. This is at once a violation of the rights of individuals, and of those of the state to which they belong. Things have been greatly changed in Russia; a single reign-that of Peter the Great-has placed that vast empire in the rank of civilized nations. BOOK II. CHAP. VIII. The property of an individual does not cease to belong to ? 109. nor him on account of his being in a foreign country; it still con- over his prostitutes a part of the aggregate wealth of his nation (§ 81). perty. Any power, therefore, which the lord of the territory might [175] claim over the property of a foreigner would be equally derogatory to the rights of the individual owner and to those of the nation of which he is a member. (114) of a foreign er. Since the foreigner still continues to be a citizen of his ? 110. Who own country, and a member of his own nation (§ 107), the are the heirs property he leaves at his death in a foreign country ought naturally to devolve to those who are his heirs according to the laws of the state of which he is a member. But, notwithstanding this general rule, his immovable effects are to be disposed of according to the laws of the country where they are situated. (See § 103.) er.(115) As the right of making a will, or of disposing of his for- ? 111. Will tune in case of death, is a right resulting from property, it of a foreigncannot, without injustice, be taken from a foreigner. The foreigner, therefore, by natural right, has the liberty of making a will. But, it is asked, by what laws he is obliged to regulate himself, either in the form of his testament, or in the disposal of his property. 1. As to the form or solemnities appointed to settle the validity of a will, it appears that the testator ought to observe those that are established in the country where he makes it, unless it be otherwise ordained by the laws of the state of which he is a member; in which (113) But see ante, 105, and note. In his Republic, book i. chap. vi. (114) But specific performance of an agreement relating to the boundaries of two provinces in America, may be enforced by bill in chancery in England, if the parties be within the jurisdiction. (Penn v. Baltimore, 1 Ves. sen. 444.) (115) Ante, 167, and note; and see Vattel cited, Anstruther v. Chalmer, 2 Sim. Rep. 4; but see Trotter v. Trotter, 3 Wils. & Shaw, 407, 414, and ante, 167, in notes; and see Anon. 9 Mod. 66; Bowaman v. Reeve, Pre. Ch. 577, ante, 173, note. BOOK II. case, he will be obliged to observe the forms which they preCHAP. VIII. Scribe, if he would validly dispose of the property he pos sesses in his own country. I speak here of a will which is to be opened in the place where the person dies; for, if a traveller makes his will, and sends it home under seal, it is the same thing as if it had been written at home; and, in this case, it is subject to the laws of his own country. 2. As to the bequests themselves, we have already observed that those which relate to immovables ought to be conformable to the laws of the country where those immovables are situated. The foreign testator cannot dispose of the goods, movable or immovable, which he possesses in his own country, otherwise than in a manner conformable to the laws of that country. But, as to movable goods, specie, and other effects which he possesses elsewhere, which he has with him, or which follow his person, we ought to distinguish between the local laws, whose effect cannot extend beyond the territory, and those laws which peculiarly affect the character of citizen. The foreigner, remaining a citizen of his own country, is still bound by those last-mentioned laws, wherever he happens to be, and is obliged to conform to them in the disposal of his personal property, and all his movables whatsoever. The laws of this kind, made in the country where he resides at the time, but of which he is not a citizen, are not obligatory with respect to him. Thus, a man who makes his will, and dies in a foreign country, cannot deprive his widow of the part of his movable effects assigned to that widow by the laws of his own country. A Genevan, obliged by the law of Geneva to leave a dividend of his personal property to his brothers or his cousins, if they [176] be his next heirs, cannot deprive them of it by making his will in a foreign country, while he continues a citizen of Geneva; but, a foreigner dying at Geneva is not obliged, in this respect, to conform to the laws of the republic. The case is quite otherwise with respect to local laws: they regulate what may be done in the territory, and do not extend beyond it. The testator is no longer subject to them when he is out of the territory; and they do not affect that part of his property which is also out of it. The foreigner is obliged to observe those laws, in the country where he makes his will, with respect to the goods he possesses there. Thus, an inhabitant of Neufchatel, to whom entails are forbidden in his own country with respect to the property he possesses there, freely makes an entail of the estate he possesses out of the jurisdiction of the country, if he dies in a place where entails are allowed; and, a foreigner making a will at Neufchatel, cannot make an entail of even the movable property he possesses there,—unless, indeed, we may suppose that his movable property is excepted by the spirit of the law. 2112. Escheatage What we have established in the three preceding sections is sufficient to show with how little justice the crown, in some |