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§ 86. 2. The sovereign right of every independent Sovereign State to regulate the property within its territory con- right of stitutes another exception to the rule.

every independent State over

within its territorial

limits.

Thus the personal capacity to contract a marriage, as the property to age, consent of parents, &c., is regulated by the law of the State of which the party is a subject; but the effects of a nuptial contract upon real property (immobilia) in another private rights of a naturalized citizen to property and to commercial privileges and exemptions, whether in war or peace, are tested by the fact of domicil rather than of political citizenship. Public international law can seldom be concerned in the question of political citizenship acquired by naturalization, unless the State of the naturalized citizen's birth makes some claim upon him which it could not make upon an alien under the same circumstances: for instance, if it claims military service, or compels him to remain in the country to perform civil duties, or should treat him as a traitor if taken in arms in the service of his adopted country against the country of his birth.

Every nation claims the right to give the complete character of a citizen to an alien, without consulting the wish of the State of his birth. Most nations admit, that if a native voluntarily emigrates and makes a permanent domicil in another country, and receives from that country the full rights of citizenship, the country of his birth cannot enforce claims upon him originating after his naturalization. It is the English doctrine, however, that the obligation of allegiance is for life. Yet Dr. Twiss says of the English doctrine, that it is the creature of municipal law, and “finds no countenance in the law of nations, as it is in direct conflict with the incontestable rule of that law." Law of Nations, i. 231. How far nations that do not hold this extreme doctrine may go, in enforcing obligations originating before naturalization, is by no means settled in the practice of nations.

In the United States, the inclination of the judiciary had been to follow the rule of the English common law, and to hold that neither a native nor a naturalized citizen can throw off his allegiance without consent of the State. Kent's Comm. ii. 49. Story on the Constitution, iii. 3, n. 1. Wharton's State Trials, 654. Opinions of Attorney-General, viii. 157. But the legislative and executive departments have acted upon the principle that actual expatriation and new naturalization, when the act and the intent combine, not only deprive the citizen of all claim upon the protection of his original country, but deprive that country of claims upon its former citizen against the will of the country of his adoption. But no man can renounce allegiance to a country in which he continues to reside, whatever forms he may go through. Daily on Naturalization, 26. And, if a naturalized citizen returns to the country of his birth, the United States has not interfered to protect him against the claims of that country for duties actually due from him as a subject before his naturalization. But it asserts a right to protect him against claims not ascertained and perfected before that time. For instance, if a foreign subject has been completely enlisted into the military service by conscription before expatriation, and voluntarily returns, the United States does not protect him against the obligation to perform the military duty; but if, at the time of expatriation, his obligation was that of a general liability of a class, which had not been ascertained and fixed upon him personally, the United States doés interfere for his protection. Mr. Cass, in a letter to the United States Minister at Berlin, of July 8, 1859, says: "The right of expatriation cannot at this day be doubted or denied in the United States. The idea has been repudiated, ever

State are determined by the lex loci rei sita. Huberus, indeed lays down the contrary doctrine, upon the ground that the foreign law, in this case, does not affect the territory immediately, but only in

...

since the origin of our government, that a man is bound to remain for ever in the country of his birth. The doctrine of perpetual allegiance is a relic of barbarism, which has been disappearing from Christendom during the last century." Mr. Attorney-General Black, in the case of Amthor, a Bavarian, naturalized in the United States, who returned to Bavaria, gave an opinion, in 1857, admitting the right to renounce the citizenship of naturalization and resume that of birth, by an actual and bonâ-fide return, with family and property, and a change of permanent domicil. Mr. Black said that no mode of renunciation was prescribed; but, as the right was admitted, if the fact and intent coincided and were sufficient to satisfy the government of the United States, and Bavaria treated Amthor as a citizen, he could not claim the rights of a citizen from the United States, or invoke its protection. In the war of 1812, Great Britain threatened to punish as traitors its native subjects naturalized in the United States and taken in arms. This was met by the arrest of British officers as hostages, with a threat of retaliation, which settled the question practically for the time, the British Government afterwards including those native Britons in the cartels of exchange. Annual Reg. 1813, p. 190; 1814, p. 182. Mr. Wheaton, while Minister at Berlin, declined to interfere to protect a Prussian subject, naturalized in the United States and returned to Prussia, from the military service. He said: "Had you remained in the United States, or visited any foreign country except Prussia on your lawful business, you would have been protected by the American authorities, at home and abroad, in the enjoyment of your rights and privileges as a naturalized citizen of the United States. But, having returned to the country of your birth, your native domicil and national character revert, so long as you remain in the Prussian dominions; and you are bound in all respects to obey the laws exactly as if you had never emigrated." Mr. Wheaton to Mr. Forsyth, July 29, 1840. Mr. Everett, Secretary of State, wrote to Mr. Barnard, Jan. 14, 1853: "If a Prussian subject chooses to emigrate to a foreign country without obtaining the certificate which alone can discharge him from the obligations of military service, he takes that step at his own risk. He elects to go abroad under the burden of a duty he owes to his government. His departure is of the nature of an escape from her laws; and, if at any subsequent period, he is indiscreet enough to return to his native country, he cannot complain if those laws are executed to his disadvantage." Mr. Webster, when Secretary of State, took the ground, that, if a country does not acknowledge the right of a native to renounce his allegiance, it may enforce its claims if he is found within its jurisdiction. Mr. Cass, Secretary of State, writes to our minister at Berlin, July 9, 1859: "I confine the foreign jurisdiction in regard to our naturalized citizens to such of them as were in the army, or actually called into it, at the time they left Prussia; that is, to the case of actual desertion, or of refusal to enter the army after having been regularly drafted and called into it by the government." The Prussian Government refused to admit the distinction set up by the United States between inchoate and perfected obligations, where a permit of emigration was not obtained, and claimed unlimited authority over its returned subjects. Baron Manteuffel to Mr. Fay, Oct. 22, 1852. Still Prussia and the other German States have avoided collision with the United States by granting discharges on the application of the United States Minister. For the documents cited above, see Senate Ex. Doc. No. 37, 36th Cong. 1st Sess. pp. 7, 49, 54, 135, 167.

Another question has been mooted between the United States and Prussia, as to the right of naturalized Prussians, who left Prussia under a permit of emigration,

an incidental manner, and that by the implied consent of the sovereign, for the benefit of his subjects, without prejudicing his or their rights. But the practice of nations is certainly different,

to return to Prussia and reside there as American citizens, within the terms of the treaty of 1828. In such case, the Prussian Government claims the right, at its discretion, to order the person out of the country, or to put restrictions upon his residence. Baron Manteuffel to Mr. Wright, Nov. 9, 1857.

A similar question arose between France and the United States in the case of Michel Zeiter in 1859-60. The French Government claimed military service from Zeiter, on the ground that he emigrated and naturalized himself before he had satisfied the obligation of military service that lay upon him by law. The United States Government contended that the rights of France did not extend to military duty, "the performance of which has not been actually demanded of him before his emigration. A prospective liability to service in the army is not sufficient. The obligation of contingent duties, depending upon time, sortition, or events thereafter to occur, is not recognized." Correspondence between Mr. Mason and Count Walewski, November, 1859; and Mr. Faulkner and M. Thouvenel, April, 1860. The case of Zeiter came before the French judicial tribunals, and was decided in his favor.

Spain contends for an unlimited right over the returned subject for subsequent as well as past obligations. The case of Gavino de Liaño, Senate Ex. Doc. No. 38, 36th Cong. p. 167.

During the civil war in the United States, the draft was confined to citizens, native or naturalized, and "persons of foreign birth who shall have declared on oath their intention to become citizens" (United-States Laws, xii. 731); and all such persons were, for a time, prohibited from leaving the country.

On the subject of naturalization, see Fölix, Droit Intern. Privé, i. 81-100. Kent's Comm. i. lect. 4. Woolsey's Introd. § 66. Phillimore, Intern. Law, i. 350-354. Folix, Revue Française et Etrangère, ii. 328. Martens' Nouv. Receuil, ii. De Beaudant, de la Naturalization. Westlake, Pr. Intern. Law. Twiss, Law of Nations, i. ch. 9. New American Cyclopædia, xii. Naturalization." Heffter, Europ.

Völkerr. liv. i. ch. 1, § 4.

The Cases arising out of the Bombardment of Greytown. — In the cases arising out of the bombardment of Greytown by the United-States fleet in 1854, when a good deal of neutral as well as American property was destroyed, the rule was adopted by the United States, and acquiesced in by the British and French governments, that, if a person takes up a residence in a foreign place, and his property suffers there by reason of belligerent acts committed against that place by another foreign nation, he cannot have remuneration from the latter nation by the intervention of his own Sovereign. He must take the chances of the country in which he chooses to reside; and, if injury is done to his property by acts of war committed against that country, his only claim, if any, is a personal one against the government of the country of his residence, in which his own sovereign will not interest himself. The utmost that such a citizen, domiciled abroad, can require of his own government is to see that no discriminations are made against him in the belligerent acts of the nation attacking the place, or by the nation under whose protection he is residing. See Mr. Marcy, Secretary of State, to M. Sartiges, Feb. 26, 1857, Senate Ex. Doc. No. 9; and the speeches of Lord Palmerston and the Attorney-General in Parliament, in June and July, 1857. Hansard's Parl. Debates, cxlvi. 37-49, 1045.

The Cases arising out of the Bombardment of Antwerp. - Property of foreign citizens

and therefore no such consent can be implied to waive the local law which has impressed certain indelible qualities upon immovable property within the territorial jurisdiction.

deposited in the warehouses of the government of the Netherlands at Antwerp, before the revolution of 1830, was destroyed by the Dutch, in the bombardment of that place, in their attempt to defeat the revolution. The independence of Belgium was established by the intervention of the great powers. These powers concurred in holding that the foreign merchants could not ask their governments to make reclamations on the Dutch Government after the independence of Belgium was acknowledged. The powers, however, claimed compensation from the newly established State of Belgium, on the ground that property so situated must be protected by the government of the country in which it lay, which government was then the State of Belgium, recognized as independent afterwards.

The Case of Martin Koszta.- Martin Koszta, a Hungarian, had taken part with his country in the civil war and fled to Turkey, where he was arrested, but released upon a promise to leave Turkey. He came to the United States, and had acquired a residence there, and made the declaration preliminary to naturalization, but had not become a citizen. In this state of things, he went to Smyrna for temporary commercial purposes, and placed himself under the protection of the Consul of the United States at Smyrna and their Chargé d'Affaires at Constantinople, and was furnished with a tezkerch (a passport) by them. He was seized by Austrian officials, and placed in confinement on board an Austrian vessel of war in the harbor. The Turkish authorities disavowed and protested against this act, as a violation of Turkish sovereignty. The commander of a vessel of war of the United States demanded of the Austrian vessel the release of Koszta, and prepared to open fire upon her, when Koszta was, by agreement, placed under the protection and custody of the French ConsulGeneral, to await the action of the powers concerned. In the subsequent correspondence upon this subject between the governments of the three countries involved, the United States claimed the right to relieve a domiciled subject of the United States, although not naturalized, from arrest of his person, made within the territories of a friendly State where he was temporarily sojourning for business purposes, by the agents of any other State, although that of his birth; and, if the arrest was in violation of the sovereignty of the State within which it was made, and that State could not or would not release the prisoner, the United States would do so by force, within that territory. And, at all events, the objection of violation of territorial sovereignty by a forcible release was not one which the arresting government could make against the United States. Mr. Marcy to M. Hülsemann, Sept. 26, 1853, Senate Ex. Doc. No. 1, 33d Congress.

The Case of Simon Tousig. This differed materially from that of Koszta. Tousig, a subject of Austria, had acquired a domicil in the United States, but was not naturalized, and voluntarily returned to Austria with a passport from the American Department of State. He was arrested on charge of offences committed before leaving Austria. He appealed to the United States Minister for protection, who laid the case before the Department of State. Mr. Marcy replied, that the passport was improperly granted, being deliverable only to citizens; and that, although a domiciled resident of the United States, by voluntarily returning to Austria and placing himself under her jurisdiction, he lost the protection of the United States. Koszta, on the other hand, had not returned to Austria, but was arrested in Turkish territory, by Austrian agents, while under the protection of the passport usually granted by the consuls of Christian

§ 87. As to personal property (mobilia) the lex loci contractûs or lex domicilii may, in certain cases, prevail over that of the place where the property is situated. Huberus holds that not only the marriage contract itself, duly celebrated in a given place, is valid in all other places, but that the rights and effects of the contract, as depending upon the lex loci, are to be equally in force everywhere. If this rule be confined to personal property, it may be considered as confirmed by the unanimous authority of the public jurists, who unite in maintaining the doctrine that the incidents and effects of the marriage upon the property of the parties, wherever situated, are to be governed by the law of the matrimonial domicil, in the absence of any other positive nuptial contract. But if there be an express ante-nuptial contract, the rights of the parties under it are to be governed by the lex loci contractûs.50

discharge

assignees in

country.

§ 88. By the general international law of Europe and Effect of America, a certificate of discharge obtained by a bankrupt bankrupt in the country of which he is a subject, and where the and title of contract was made and the parties domiciled, is valid to another discharge the debtor in every other country; but the opinions of jurists and the practice of nations have been much divided upon the question, how far the title of his assignees or syndics will control his personal property situated in a foreign country, and prevent its being attached and distributed under the local laws in a different course from that prescribed by the bankrupt code of his own country. According to the law of most European countries, the proceeding which is commenced in the country of the bankrupt's domicil draws to itself the exclusive right to take and distribute the property. The rule thus established is rested upon the general principle that personal (or movanations in the Levant to residents of their respective countries, and respected by the Turkish powers. Cong. Doc. 33d Congress: Ex. Doc. No. 41.]-D.

[The questions arising out of marriages made in a foreign country, whose laws differ from those of the place of domicil of the parties, as to the capacity of the parties to make the contract, the solemnities and conditions required by positive law, and the effect of the marriage on the movable and immovable property of the parties, have been fully treated, with the light of the latest judicial decisions and textwriters, in Redfield's edition of Story's Conflict of Laws, chs. 5, 6.

See also Fergusson on Marriage and Divorce. Burge on Col. and For. Law, i. Part I. Kent's Comm. ii. lect. 28. Huberus, lib. i. tit. 3, de Conflict. Leg. Hertii Opera, de Coll. Leg. Pothier, Traité du Marriage. Boullenois, I. Rodenburg de Div. Stat. Merlin, Répert. Autor. Marital. Henry on For. Laws. Le Brun, Traité de la Communautés. Fröland, Mémoire.] -D.