$ 19. The jurisdiction of a State over all real property within its territory results, as a necessary consequence of the rule relating to the application of the lex loci rei sitæ. As everything relating to the tenure, title, transfer, descent, and testamentary disposition of real property, is regulated by the local law, so, also, all proceedings in courts of justice relating to that species of property, such as the rules of evidence, the forms of action and pleadings, and rules of decision must necessarily be governed by the same law. This jurisdiction is exclusive. 'In respect to immovable property,' says Story, 'every attempt of a foreign tribunal to found a jurisdiction over it, must, from the very nature of the case, be utterly nugatory, and its decree must be for ever incapable of execution in rem.' It is true that property within a country does not make the owner generally a subject of the sovereign where it is locally situate, but it subjects him to his jurisdiction secundum quid, et aliquo modo. Mixed actions, so far as they regard the reality, are to be brought in the place rei sita, but if the personal damages or claims be separable in their nature and character, they may be sued for as personal actions.' The rule of common law is, that personal actions may be brought in any place where the party defendant can be found; that real actions must be brought in the forum rei site, and that mixed actions, which are deemed local, are properly referrible to the same tribunals.1

§ 20. With respect to jurisdiction over personal property, Story says, the general doctrine is not controverted, that though movables are, for many purposes, to be deemed to have no situs, except that of the domicile of the owner, yet, this having but a legal fiction, it yields whenever it is necessary for the purpose of justice, that the actual situs of the thing should be examined. The State, in whose territory personal property is actually situate, has as entire dominion, sovereignty and jurisdiction over it while there, as it has over real property, and it may, to the same extent, regulate its transfer, subject it to process and execution, and control its uses and disposition. Hence it is, that, whenever per

1 Wheaton, Elem. Int. Law, pt. ii. ch. ii. §§ 3, 16; Story, Conflict of Laws, §§ 551-555; Huberus, Prælectiones, lib. i. tit. iii. § 15; Daulson v. Mathews, 4 Term. R. 503; Livingston v. Jefferson, 4 Hall's Am. Law Jour., p. 78; Mostyn v. Fabrigas, Cowper KR. 161–176.

sonal property is taken by arrest, attachment, or execution within a State, the title so acquired under the laws of the State is held valid in every other State; and the same rule is applied to debts due to non-residents, which are subjected to the like process under the local laws of the State.1

§ 21. Mr. Wheaton considers the rule, with respect to the jurisdiction of a State over personal property or movables within its territorial limits, to be the same as over immovables or real property, with this qualification, that foreign laws may furnish the rule of decision in cases where they apply, whilst the forms of process, rules of evidence and prescription are governed by the lex fori. Thus the lex domicilii forms the law in respect to a testament of personal property, or succession ab intestato, if the will is made, or the party on whom the succession devolves resides, in a foreign country; whilst, at the same time, the lex fori of the State in whose tribunals the suit is pending, determines the forms of process and prescription. Though the distribution of the personal effects of an intestate is to be made according to the law of the place where the deceased was domiciled, it does not, therefore, follow that the distribution is, in all cases, to be made by the tribunals of that place, to the exclusion of those of the country where the property is situate. Whether the tribunal of the State where the property lies is to decree distribution, or to remit the property abroad, is a matter of judicial discretion, to be exercised according to the circumstances. It is the duty of every Government to protect its own citizens in the recovery of their debts, and other just claims; and in the case of a solvent estate, it would be an unreasonable and useless comity to send the funds abroad, and the resident creditor after them. But if the estate be insolvent, it ought not to be sequestered for the exclusive benefit of the subjects of the State where it lies. In all civilised countries, foreigners, in such cases, are entitled to prove their debts and share in the distribution. Though the forms in which a testament of personal property, made in a foreign country, is to be executed, are regulated by the local law, such a testament cannot be carried into effect in the State where the property lies, until, in the language of the law of England, probate has been obtained in the proper tribunal of such State, or, in the lan1 Ogden v. Falliot, 3 Term. R. 733; Bissell v. Briggs, 9 Mass. R. 462-469.

guage of the civilians, it has been homologated, or registered in such tribunal. So, also, a foreign executor, constituted such by the will of the testator, cannot exercise his authority in another State, without taking out letters of administration in the proper local court. Nor can the administrator of a succession ab intestato, appointed ex officio under the laws of a foreign State, interfere with the personal property, in another State, belonging to the succession, without having his authority confirmed by the local tribunal.'

§ 22. It may be proper to allude, in this place, to the principle which lies at the foundation of the distinctions which have been made by the courts of different countries in the rule of international comity, as applied to contracts inter vivos and dispositions causa mortis, and as applied to foreign bankrupt laws, and to foreign voluntary assignments for the benefit of creditors. The jus disponendi, or right to dispose of property by contracts inter vivos, has its origin in the law of nature, and is not the offspring of legislation. And where there is no statutory provision prohibiting or regulating the disposition of property by a particular kind of contract, such a disposition will be considered good and valid. On this point, Pothier, in his Traité des personnes, in discussing the laws of France, thus describes the origin and character of this class of contracts: Although foreigners may make all sorts of contracts inter vivos; although they may, in this manner, dispose of property which they may acquire in France, either by titles onerous or gratuitous, they cannot dispose of property which they own in France, either by testament, or by any other act causa mortis, in favour of foreigners or citizens; neither can foreigners take anything by testament, or by any other act causa mortis, although they are capable of donations inter vivos. This difference, which the law establishes between acts inter vivos and acts causa mortis, in permitting foreigners to do the former, and prohibiting them from doing the latter, is founded on the very nature of these acts. Acts inter vivos are founded on the droit des gens (jus gentium-or law of nature). Foreigners enjoy every right which arises from the jus gentium. They may, therefore, perform all sorts of acts inter vivos. The right to make a testament, active or passive, is, on the con

trary, derived from the civil law-testamenti factio est juris civilis-foreigners not enjoying what is of civil law, have not this faculty or right.' By the Roman law, the power to make a testament belonged peculiarly and exclusively to citizens. So provides the second cap. Falcidian law. A foreigner, therefore, could not use this power. The decemviral law had granted it to the fathers of families, whom it invested, by this act, with the character of legislators, which would have been degraded if exercised by any other than Roman citizens. some States, the treasury appropriates the property of foreigners who die there; hence arises their inability to make a testament; but this barbarous law is a disgrace to any legislation. The French law, as we have seen from Pothier, adopted the maxim of the Roman law, factio testamenti est juris civilis. For that reason, a foreigner could not dispose of property by testament. He was forbidden by municipal law. But, says Pothier, the right to dispose of property by acts inter vivos is founded on the jus gentium, the law of nature. And, in truth, it cannot be otherwise. Dominium, or the right over things which are ours, consists, according to all writers who have defined it, of two parts, first, the right to dispose of the thing, and secondly, the right to enjoy it exclusively. When either part is wanting, the dominium is mutilated. The right to acquire property is the right to hold this dominium over things, and no man can be said to have full property in a thing, who has not the right to dispose of it and to enjoy it exclusively. The jus disponendi exists then, necessarily, where there is the full right of property.'

§ 23. From the same principle results the distinction which is generally made by the courts of the United States between a foreign voluntary assignment for the benefit of creditors, and a foreign assignment in bankruptcy. The jus disponendi applies to the former, whereas an assignment under the bankrupt law is a proceeding in invitum; the one is a universal natural right applicable everywhere, while the other is a forcible disposition, having its origin in local law, and confined to the jurisdictional limits of the maker of the law. Story, in his Conflict of Laws, § 411, (third edition,) says: 'There is a marked

1 Pothier, Traité des personnes, pt. i. tit. ii. sec. ii.; Sala Mexicana, tomo ii. pp. 109, 110; Riquelme, Derecho Pub. Int., lib. ii. tit. i. caps.

distinction between a voluntary conveyance by the owner, and a conveyance by mere operation of law in cases of bankruptcy in invitum. Laws cannot force the will, nor compel any man to make a conveyance. In place of a voluntary conveyance of the owner, all that the legislature of a country can do, when justice requires it, is to assume the disposition of his property in invitum. But a statutable conveyance, made under the authority of any legislature, cannot operate upon any property except that which is within its own territory. This makes a solid distinction between a voluntary conveyance of the owner and an involuntary conveyance by the mere authority of the law. The former has no relation to place, the latter, on the contrary, has the strictest relation to place. The distinction is insisted on with great force by Lord Kaims. It is, therefore, admitted, that a voluntary assignment by a party, according to the law of the domicile, will pass his personal estate, whatever may be its locality abroad, as well as at home. But it by no means follows that the same rule should govern in cases of assignments by operation of law.' The courts of Great Britain apply the rule of comity generally to the laws of bankruptcy as well as to voluntary assignments.1

§ 24. Public and private vessels on the high seas and out of the territorial limits of any other State, are subject to the jurisdiction of the State to which they belong. The ocean is common to all mankind, and may be successively used by all as they have occasion. According to Vattel, the domain of a nation extends to all its just possessions, not merely possessions of territory, but also of rights it is entitled to enjoy. It has the right to navigate the ocean which is the territory of no one and its jurisdiction over its vessels so employed on the high seas, results from this right (droit) rather than from the jurisdiction which it is entitled to exercise over the persons who compose its fleets or man its private vessels. But this jurisdiction is exclusive only so far as respects offences against its own municipal laws, and not as respects offences against the law of nations, which may be punished in the competent tribunal of any country where the offender may be found, or into which he may be carried, although

1 Story, Conflict of Laws, §§ 408-411; Kaims, On Equity, b. iii. ch. viii. § 6; Kent, Com. on Am. Law, vol. ii. pp. 404-408; Westlake, Private Int. Law, ch. ix. ; Forbes v. Scannel, 13 Cal. R. 242.