its mouth to a considerable distance above, claimed its exclusive navigation below the southern boundary of the United States. This claim was contested by the United States, as contrary to the treaty of 1763, as well as in violation of the law of nature and of nations. The dispute was terminated by the treaty of San Lorenzo el Real, in 1795, by which the free navigation of the Mississippi was secured to the citizens of the United States, in its whole breadth, from its source to the ocean. By the subsequent acquisition of Louisiana and Florida by the United States, the whole river, from its source to the Gulf of Mexico, was included within their territory, and, consequently, to them belonged the exclusive right of its navigation.'

$ 33. The relative position of the United States and Great Britain, says Mr. Wheaton, in respect to the navigation of the great northern lakes and the river St. Lawrence, appears to be similar to that of the United States and Spain, previously to the cession of Louisiana and Florida, in respect to the Mississippi; the United States being in possession of the southern shores of the lakes and the river St. Lawrence to the point where their northern boundary strikes that river, and Great Britain of the northern shores of the lakes and of the river to the same point and of both banks of the river, from the latitude forty-five degrees north to the sea. The United States claimed the right to navigate the St. Lawrence, to and from the sea, as one to which they were entitled by the laws of nations. In addition to the arguments used in support of their right, in 1795, to the free navigation of the Mississippi, when Spain possessed both banks of that river near its mouth, the United States fortified their claim by the consideration that this navigation was, before the war of the American revolution, the common property of all the British subjects inhabiting this continent, having been acquired from France by the united exertions of the mother country and the colonies in the war of 1756; and that their claim to the free navigation of the St. Lawrence was precisely of the same nature with that of Great Britain to the navigation of the Mississippi, recognised in 1763, when the mouth and lower shores of that river were held by another power.

The arguments of the British Government against this 1 Wheaton, Hist. Law of Nations, pp. 506 et seq.; Waite, State Papers, vol. x. pp. 135-140.

claim were by no means satisfactory to the United States, and do not seem well founded upon the principles of international law. The discussion at the time, 1826, led to no other result than to present the subject to the more deliberate consideration of the two nations. The question, however, was satisfactorily arranged by the commercial treaty of the 5th of June, 1854, between the two countries, the fourth article of which provides, that the citizens and inhabitants of the United States shall have the right to navigate the river St. Lawrence and the canals of Canada, used as the means of communicating between the great lakes and the Atlantic Ocean, with their vessels, boats, and crafts, as fully and freely as the subjects of her Britannic Majesty, subject only to the same tolls and other assessments as now are, or may hereafter be, exacted of her Majesty's said subjects; it being understood, however, that the British Government retains the right of suspending this privilege, on giving due notice thereof to the Government of the United States.1

Wheaton, Hist. Law of Nations, pp. 511 et seq.; Phillimore, On Int. Law, vol. i. § 170; Congress. Docs. 1827-1828, No. 43; Hansard, Parl. Deb., vol. cxxvii. No. 6, pp. 1073-4.

A difference of opinion having for many years existed between Great Britain and the United States, as to the meaning of the words 'the middle of the Channel,' in the Treaty of Washington of June 15, 1846, it was agreed by the Treaty of Washington of May 8, 1871, to refer the difference to the arbitration of the Emperor of Germany.

The Treaty of Ghent had made the parallel of 49° Ñ., the boundary line between the two countries as far as the Pacific. Opposite the sea termination of this line lay Vancouver Island, recognised as a British possession. At the date of the first treaty of Washington, the portion of North-Western America adjacent to the line was altogether uninhabited by settled colonists, but as far as British dominion extended it was held under a terminable lease by the Hudson's Bay Company, and used only by hunters and fishermen under its control in common with numerous tribes of Indians. The treaty provided that the line of the 49° parallel 'should be continued to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly through the middle of the channel which separates the continent from Vancouver's Island, and thence southerly through the middle of the said channel and of Fuca Straits to the Pacific Ocean.' In the middle of this channel lay the Island of San Juan, together with several smaller islets. Both countries contended for this island. The question referred to the Emperor was whether this channel should be run, as claimed by the Government of Her Britannic Majesty, through the Rosario Straits, or through the Canal of Haro, as claimed by the Government of the United States.

The Emperor gave his award in favour of the United States, Oct. 21, 1872. But there is reason to believe that, had the fact of an existing third and middle channel dividing the group of islands been made part of the question, the Emperor would have selected the middle channel. As the matter was placed before him, he had no option save to select the Rosario or the Haro channel.

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CHAPTER VII.

RIGHTS OF LEGISLATION AND JURISDICTION.

1. Exclusive power of civil and criminal legislation-2. Law of real property-3. Law of personal property-4. Law of contracts-5. Exceptions to rule of comity in contracts-6. Rule of judicial proceeding -7. Law of personal capacity and duty-8. Droit d'aubaine and droit de rétraction-9. Law of escheat-10. Foreign marriages-II. Foreign divorces-12. Laws of trade and navigation-13. Laws of bankruptcy-14. Law of treason and other crimes-15. Judicial power of a State-16. Jurisdiction with respect to actions-17. Jurisdiction of a State over its own citizens-18. Over alien residents-19. Over real property-20. Over personal property-21. Rule of decision in case of personal property-22. Distinction between contracts inter vivos and causâ mortis-23. Between assignments in bankruptcy and voluntary assignments-24. Jurisdiction over public and private vessels on the high seas-25. Public armed vessels and their prizes in foreign ports-26. Private vessels in foreign ports-27. Summary of the judicial powers of a State-28. Extradition of criminals--29. Extra-territorial operation of a criminal sentence-30. Conclusiveness of foreign judgments in personal actions-31. Conclusiveness of foreign judgments in rem-32. Foreign courts, how far exclusive judges of their own jurisdiction—33. Proof of foreign laws-34. Proof of foreign contracts and instruments-35. Of foreign judgments and documentary evidence.

§ 1. WE have already remarked that the exclusive power of civil and criminal legislation, is one of the essential rights of every independent and sovereign State. An infringement upon this right is a limitation of the natural sovereignty of the State, and if extended to a general denial of this power, it is justly considered as depriving the State of one of its most essential attributes, and as reducing it to the position of dependence upon the will of another. In such a case, it can no longer claim to be numbered among independent and sovereign States, for it no longer possesses the attributes necessary to entitle it to rank as such among the nations of the world, viz. the right to exercise its volition, and the capacity to contract obligations.1

§ 2. This sovereign right of legislation extends (with the

1 See ante, ch. iii. § 1, and ch. iv. § 14.

exceptions hereafter to be mentioned) to the regulation of all real or immovable property within the territorial limits of the State, no matter by what title such property may be held, or whether it belongs to aliens or to citizens of the State. The law of the place, where real or immovable property is situate, or the lex loci rei sitæ, governs in everything relating to the tenure, title, and transfer of such property. Hence it is that the descent, device, or conveyance of real property, in a foreign country, must be governed by, and executed according to, the local laws of the State where such property is situate. And where these local laws prescribe, 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 transfer cannot be executed in a foreign country. But, by the rules of international jurisprudence, recognised among the different nations of the European Continent, if the property is allowed, by the lex loci rei sita, to be alienated by deed or will, and the local laws do not require forms which must necessarily be observed in the place where it is situated, the deed or will may be executed according to the law of the place where it is made. But the application of the rule is less liberal in the United States and Great Britain, the formalities required by the laws of the State where the land lies being essential to the validity of the transfer.'

§ 3. With respect to personal or movable property, the same rule generally prevails, except that the law of the place where the person to whom it belonged was domiciled at the time of his decease, governs the succession, ab intestato, to his personal effects. So, also, the law of the place where any instrument relating to personal property is executed, by a person domiciled in that place, governs, as to the form, execution and interpretation of the instrument. Thus, the validity, effect and interpretation of a testament of personal property, must be determined by the law of the place where it is made, and where the party making it is domiciled. Lex loci

1 Wheaton, Elem. Int. Law, pt. ii. ch. ii. § 3; Story, Conflict of Laws, §§ 364-373, 428-483; Robinson v. Campbell, 3 Wheat. R., 217; United States v. Crosby, 7 Cranch. R., 115; Coppin v. Coppin, 2 P. W. R., 291; Brodie v. Barry, 2 Ves. and Be. R., 127; Dundas v. Dundas, 2 Dow. and Cl. R., 349; Johnson v. Tilford, 1 Russ. and My. R., 244.

domicilii regit actum. The rule is applicable to every transfer, alienation, or disposition made by the owner, whether it be inter vivos, or causâ mortis, and it is founded on the maxim that personal property has no locality, but adheres to the person of its owner. Mobilia sequuntur personam. There are exceptions to this rule: first, in cases where the local or customary law of the place gives to the particular property a necessarily implied locality; and second, in special cases provided for by local statutes. Thus, by the laws of some countries, certain movables are considered as annexed to immovables, either by incorporation, or as incidents, and therefore partake of the character of the latter, such as fixtures of personal property in houses, under the English common law. Heritable bonds, ground rents, and other rents on land are ranked, by the Scottish law, among the class of immovables. Contracts respecting public funds, or stocks, may be required to be carried into execution, according to the local law; and the same rule may properly apply to the transfer of shares in bank, insurance, canal, railroad, and other companies which owe their existence to, and are regulated by, peculiar local laws. Subject to these, and perhaps some other exceptions, the general rule is that a transfer of personal property, good by the law of the owner's domicile, is valid wherever it may be situate.1

§ 4. The general law of contracts is, that the validity of every contract is to be decided by the law of the place where it is made, or, in legal phraseology, the lex loci contractus is to govern in everything respecting the form, interpretation, obligation, and effect of the contract. The rule,' says Story, is founded, not merely in the convenience, but in the necessities of nations; for, otherwise, it would be impracticable for them to carry on an extensive intercourse with

1 Huberus, Prælect., lib. i. tit. iii. §§ 14, 15; Foelix, Droit Int. Privé, § 37; U. S. v. Bank of U. S. 8 Rob. R., 262; Black v. Zacharie, 3 Howard R., 483; Sill v. Worswick, 1 H. Bl. R. 690. Plaintiff was holder of Peruvian Government bonds, pledging specially the proceeds of sale of guano: defendants as agents of the Government received part of the guano. It was held by the English Court of Appeal that it possessed no jurisdiction to enforce the bonds, or to attach proceeds of sale of the guano, and that the defendants as agents of a foreign Government could not be sued in the absence of their principals.--Twycross v. Dreyfus, 46 L. J., Ch. 510. Service upon a superintendent in Jamaica of a company domiciled in England is good service on the company.-Royal Mail Steam Packet Co. v. Braham, 46 L. J., Ch. 67.