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 BOOK IL of alienage.) (116) states, lays claim to the effects left there by a foreigner at his death. This practice is founded on what is called escheat- CHAP. VIII. age, by which foreigners are excluded from all inheritances (or doctrine in the state, either of the property of a citizen or that of an alien, and, consequently, cannot be appointed heirs by will, nor receive any legacy. Grotius justly observes, that this law has descended to us from those ages when foreigners were almost considered as enemies.* Even after the Romans were become a very polite and learned people, they could not accustom themselves to consider foreigners as men entitled to any right in common with them. "Those nations," says Pomponius, the civilian, "with whom we have neither friendship, nor hospitality, nor alliance, are not, therefore, our enemies; yet, if any thing belonging to us falls into their hands, it becomes their property; our free citizens become slaves to them; and they are on the same terms with respect to us."+ We cannot suppose that so wise a people retained such inhuman laws with any other view than that of a necessary retaliation, as they could not otherwise obtain satisfaction from barbarous nations, with whom they had no connection or treaties existing. Bodinus shows, that escheatage is derived from these worthy sources! It has been successively mitigated, or even abolished, in most civilized states. The emperor Frederic II. first abolished it by an edict, which permitted all foreigners dying within the limits of the empire to dispose of their substance by will, or, if they died intestate, to have their nearest relations for heirs. But Bodinus complains that this edict is but ill executed. Why does there still re- [ 177 ] main any vestige of so barbarous a law in Europe, which is now so enlightened and so full of humanity? The law of nature cannot suffer it to be put in practice except by way of retaliation. This is the use made of it by the king of Poland in his hereditary states. Escheatage is established in Saxony; but the sovereign is so just and equitable, that he enforces it only against those nations which subject the Saxons to a similar law. raine. The right of traite foraine (called in Latin jus detractus) 113. The is more conformable to justice and the mutual obligation of right of nations. We give this name to the right by virtue of which traite fothe sovereign retains a moderate portion of the property either of citizens or aliens which is sent out of his territories to pass into the hands of foreigners. As the exportation of (116) As to alienage in general, and the same, notwithstanding a subsequent the jealous provisions in England war-Sutton v. Sutton, 1 Russ. & Myl. against foreigners, see 1 Chitty's Com- Rep. 663. mercial Law, 108 to 169. See exceptions in treaty with America, and decisions thereon with respect to Americans who were seised of lands in Great Britain, being allowed to retain De Jure Belli et Pacis, lib. ii. cap. vi. & 14. Digest, lib. xlix. tit. xv. De Captivis, et Postlimin. His Republic, book i. chap. vi. BOOK II. that property is a loss to the state, she may fairly receive an CHAP. VIII. equitable compensation for it. 114. Im movable Every state has the liberty of granting or refusing to foreigners the power of possessing lands or other immovable property within her territory. (117) If she grants them that by an alien. privilege, all such property possessed by aliens remains sub property possessed 115. Marriages of aliens. (118) ject to the jurisdiction and laws of the country, and to the same taxes as other property of the same kind. The authority of the sovereign extends over the whole territory; and it would be absurd to except some parts of it, on account of their being possessed by foreigners. If the sovereign does not permit aliens to possess immovable property, nobody has a right to complain of such prohibition; for, he may have very good reasons for acting in this manner: and, as foreigners cannot claim any right in his territories (§ 79), they ought not to take it amiss that he makes use of his power and of his rights in the manner which he thinks most for the advantage of the state. And, as the sovereign may refuse to foreigners the privilege of possessing immovable property, he is doubtless at liberty to forbear granting it except with certain conditions annexed. There exists no natural impediment to prevent foreigners from contracting marriages in the state. But, if these mar (117) By the municipal law of Great Britain, no alien can inherit or hold real property. Thus, Doe v. Acklam, 2 Bar. & Crèss. 799, establishes that a person born in the United States, since 1783, when the two countries were separated, cannot inherit lands in England; and the same point was afterwards decided in Doe d. Auchmuty v. Mulcaster, 5 Barn. & Cres. 771. To this rule some exemptions have been occasionally introduced by express treaty intended to be permanent, as regards such exception, and strengthened by statute; as under the treaty of 1794, between Great Britain and America, and the act 37 Geo. III. c. 97, under which American citizens who held lands in Great Britain, on 28 Oct. 1795, and their heirs and assigns, are at all times to be considered, so far as regards those lands, not as aliens, but as native subjects of Great Britain, and this, notwithstanding a subsequent war and the adherence of the citizen to America whilst at war with Great Britain, (Sutton v. Sutton, 1 Russ. & M. 663), and the consequent confliction of duties as regards the American citizen seised of such estate. But, as alienage subjects no party to any indictment or penalty, an alien must answer a bill of discovery filed to ascertain whether he has purchased land. (Duplesses v. Åttorney-General, 1 Bro. P. C. 415; 2 Ves. 286.) (118) The validity of a marriage celebrated in a foreign country must be determined in an English court by the lex loci where the marriage was solemnized; and, therefore, on a plea of coverture, where the parties, who were British subjects, were married in France, it was held, that, if the marriage would not be valid in that country, according to the municipal law there, it would not be valid in this country. It was even further held that a printed copy of the "Cinq Codes" of France, produced by the French vice-consul resident in London, purchased by him at a bookseller's shop in Paris, was properly received as evidence of the law of France upon which the court would act; and Abbott, C. J., said: The general rule certainly is, that the written law of a foreign country must be proved by an examined copy thereof before it can be acted upon in an English court; but, according to my recollection, printed books upon the subject of the law of Spain were referred to and acted upon in argument in Sir Thomas Picton's case, riages are found prejudicial or dangerous to a nation, she has a right, and is even in duty bound to prohibit them, or to subject to certain conditions the permission to contract them: and, as it belongs to the nation or to her sovereign to determine what appears most conducive to the welfare of the state, other nations ought to acquiesce in the regulations which any sovereign state has made on this head. Citizens are almost everywhere forbid to marry foreign wives of a different religion; and in many parts of Switzerland a citizen cannot marry a foreign woman, unless he prove that she brings him in marriage a certain sum fixed by the law. BOOK II. CHAP. VIII. CHAP. IX. OF THE RIGHTS RETAINED BY ALL NATIONS AFTER THE [ 178 ] CHAP. IX. which men IF an obligation, as we have before observed, gives a right ? 116. What to those things without which it cannot be fulfilled, every ab- are the solute, necessary, and indispensable obligation produces in rights of this manner rights equally absolute, necessary, and indefea- cannot be sible. Nature imposes no obligations on men without giving deprived. them the means of fulfilling them. They have an absolute right to the necessary use of those means: nothing can deprive them of that right, as nothing can dispense with their fulfilling their natural obligations. primitive In the primitive state of communion, men had, without dis- 117. Right tinction, a right to the use of every thing, as far as was ne- still remaincessary to the discharge of their natural obligations. And, ing from the as nothing could deprive them of this right, the introduction state of comof domain and property could not take place without leaving munion. to every man the necessary use of things, that is to say, the use absolutely required for the fulfilment of natural obligations. We cannot, then, suppose the introduction to have taken place without this tacit restriction, that every man should still preserve some right to the things subjected to property, in those cases where, without this right, he would remain absolutely deprived of the necessary use of things of this nature. This right is a necessary remnant of the primitive state of communion. Notwithstanding the domain of nations, therefore, each 118. Right nation still retains some right to what is possessed by others, in those cases where she would find herself deprived of the as evidence of the law of that country, and, therefore, I shall act upon that authority, and receive the printed copy now produced as evidence of the law of France. (Lacon v. Higgins, 1 Dowl- retained by each nation over the |