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§ 81a. Reasons for this difference.

But this application of the rule is peculiar to American and British law. According to the international jurisprudence recognised among the different nations of the European continent, a deed or will, executed according to the law of the place where it is made, is valid; not only as to personal, but as to real property, wherever situated; provided the property is allowed by the lex loci rei site to be alienated by deed or will; and those cases excepted, where that law prescribes, 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 main reason for this divergence lies in the fact that continental conveyancing has always supposed public acts as the rule, and made but a comparatively sparing use of the private documents which constitute Anglo-American titles. The inconvenience arising from the inability to dispose of land unless the owner was in the lex situs, naturally led to the rule that conveyances of immovables are rendered valid by the lex loci actus. On the other hand, the Anglo-American law prescribes formalities which may be performed anywhere, and are not contrary to the law of any nation, and it therefore justly refuses to give effect to transfers of land, unless such formalities have been complied with (k). However, no one maintains that a form expressly imposed as an exclusive one by the lex situs, can ever be dispensed with. Thus the French law of the 23rd March, 1855, requires immovable property in France to be transferred inter vivos by a transcription in the bureau des hypothèques, and no transfer is valid without such transcription (1).

This diversity of opinion is now of no great importance, because the laws of most European States have adopted the principle that land is subject to the lex rei sita. This is done expressly by the codes of Prussia (m), Austria (n), Saxony (0), Italy (p), and Greece (q). Another

115; [Coppin v. Coppin, 2 P. W. 291; Brodie v. Barry, 2 Ves. & Beames, 127; McGoon v. Scales, 9 Wallace, 23; Freke v. Lord Carberry, L. R. 16 Eq. 461 Wharton, § 372].

(i) Fælix, Droit International Privé, § 52. "Hinc Frisius habens agros et domos in provincia Groningensi, non potest de illis testari, quia lege prohibitum est ibi de bonis immobilibus testari, non valente jure Frisico adficere bona, quæ partes alieni territorii integrantes constituunt. Sed an hoc non obstat ei, quod autea diximus, si factum sit testamentum jure loci validum, id effectum habere etiam in bonis alibi sitis, ubi de illis testari licet? obstat; quia legum diversitas in illâ specie non afficit res soli, neque de illis loquitur, sed ordinat actum testandi; quo recte celebrato, lex Reipublicæ non vetat illum actum valere in immobilibus, quatenus nullus character illis ipsis a lege loci impressus læditur aut imminuitur." Huberus, ubi supra.

(k) [Westlake, § 82].

(7) [Ibid. § 87. Tripier, Codes Français, p. 1618].

(m) [Allegemeines Landrecht, Emleitung, § 28].

(n) [Oesterreichische Gazette, § 300].

Non

(0) [Saxon Civil Code, § 101.1

(p) [Law of 25th June, 1865, art. 7]. (a) [Civil Code of Greece, art. 5].

point to be decided by the lex rei site is the character of the property, that is, whether it be realty or not, for every nation may impress upon property in its dominions any character it pleases (r).

$82.

Droit

The municipal laws of all European countries formerly prohibited aliens from holding real property within the terri- d'aubaine. tory of the State. During the prevalence of the feudal system, the acquisition of property in land involved the notion of allegiance to the prince within whose dominions it lay, which might be inconsistent with that which the proprietor owed to his native sovereign. It was also during the same rude ages that the jus albinagii or droit d'aubaine was established; by which all the property of a deceased foreigner (movable or immovable), was confiscated to the use of the State, to the exclusion of his heirs, whether claiming ab intestato, or under a will of the decedent (s). In the progresa of civilization, this barbarous and inhospitable usage has been, by degrees, almost entirely abolished. This improvement has been accomplished either by municipal regulations, or by international compacts founded upon the basis of reciprocity. Previous to the French Revolution of 1789, the droit d'aubaine had been either abolished or modified, by treaties between France and other States; and it was entirely abrogated by a decree of the Constituent Assembly, in 1791, with respect to all nations, without exception and without regard to reciprocity. This gratuitous concession was retracted, and the subject placed on its original footing of reciprocity by the Code-Napoleon, in 1803; but this part of the Civil Code was again repealed, by the Ordinance of the 14th July, 1819, admitting foreigners to the right of possessing both real and personal property in France, and of taking by succession ab intestato, or by will, in the same manner with native subjects (t).

() [Story, § 447].

(s) Du Cange (Gloss. Med. Ævi, voce Albinagium et Albani) derives the term from advence. Other etymologists derive it from alibi natus. During the Middle Age, the Scots were called Albani in France, in common with all other aliens; and as the Gothic term Albanach is even now applied by the Highlanders of Scotland to their race, it may have been transferred by the continental nations to all foreigners.

(1) Rotteck und Welcker, Staats-Lexicon, art. Gastrecht, Band 6, § 362. Vattel, liv. ii. ch. viii. §§ 112-114. Klüber, Droit des Gens, Pt. II. tit. 1, ch. ii. §§ 32, 33. Von Mayer, Corp. Jur. Confed. Germanicæ, tom. ii. p. 17. Merlin, Repertoire, tit. Aubaine.

§ 82a. Rights of

aliens to hold lands in various States.

The analogous usage of the droit de détraction, or droit de retraite (jus detractûs), by which a tax was levied upon the removal from one State to another of property acquired by succession or testamentary disposition, has also been reciprocally abolished in most civilized countries.

The stipulations contained in the treaties of 1778 and 1800, between the United States and France, for the mutual abolition of the droit d'aubaine and the droit de détraction between the two countries, have expired with those treaties; and the provision in the treaty of 1794, between the United States and Great Britain, by which the citizens and subjects of the two countries, who then held lands within their respective territories, were to continue to hold them according to the nature and tenure of their respective estates and titles therein, was limited to titles existing at the signature of the treaty, and is rapidly becoming obsolete by the lapse of time (u). But by the stipulations contained in a great number of subsisting treaties, between the United States and various powers of Europe and America, it is provided, that "where on the death of any person holding real estate within the territories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation, and exempt from all duties of détraction on the part of the government of the respective States (x).

It is only of late years that the right of holding lands on the same conditions as subjects, has been conceded to foreigners by most countries. In Belgium this was effected by the law of the 27th Russia conceded the privilege in 1860 (2). of April, 1865 (y). Some of the Swiss cantons do not even now permit foreigners to hold real property without the express permission of the Cantonal Government, unless there be a treaty to that effect (a). Austria (b),

(u) Kent's Comm. vol. ii. pp. 67—69 (5th ed.).

(a) Treaty of 1828 between the United States and Prussia, art. 14. Elliott, Am. Diplom. Code, vol. i. p. 388. [See U. S. Diplom. Cor. 1873, vol. ii. p. 1415].

(y) [Report of Naturalization Commission, 1869, p. 115].

(*] [Ibid. p. 128].

(a) [Ibid. p. 131].

(b) [Civil Code of Austria, § 33].

the Netherlands (c), and Sweden (d), only accord the right on condition of reciprocity in the foreigner's country. The constitution of the German Empire provides, that every person belonging to one of the confederated States is to be treated in every other of the confederated States as a born native, and to be permitted to acquire real estate (e). But as regards other countries, the laws of Bavaria, Prussia, Saxony, and Wurtemburg, exact for their own subjects, when abroad, the same rights they extend to foreigners in their own dominions (ƒ). In Italy, Denmark, and Greece, aliens are under no disabilities in this respect (g). The ownership of land in the United States is regulated by the laws of each individual State of the Union. Some of the States impose no restrictions on foreigners (h); others require residence and an oath of allegiance (i); in others a declaration of an intention to become a naturalized citizen of the United States is necessary (k). Feudal principles were maintained so long in England, that until the year 1870 an alien was incapable of holding land for more than twenty-one years, that is, he could not purchase a freehold. This, however, was remedied by the Naturalization Act, 1870 (), which relieved aliens of most of their disabilities, and as regards land, placed them on the same footing as subjects (m).

There is no uniform rule among nations by which the nationality of a person may be determined from the place of his birth. England and America claim all who are born within their dominions, as natural born subjects or citizens, whatever may have been the parents' nationality (n). A child born in Denmark is considered a Dane while he remains in the country (0). Birth in Portugal confers Portuguese nationality, unless the father was at the time in the service of a foreign State, or unless the child formally renounces it (p).

Complete Dutch nationality is acquired by birth in Holland, if the parents are established there (q). In Italy, when an alien has established his domicile in the Kingdom uninterruptedly for ten years, his child is considered a citizen, but residence for commercial purposes does not suffice to confer this status (r). If a child is born in any other

(c) [Civil Code of the Netherlands, §§ 884, 957].

(d) [Swedish Statute of Inheritance, "Arfda Balken," ch. 15, § 2].

(e) [Art. iii. Hertslet, Map of Europe, vol. iii. p. 1931].

(f) [Report of Naturalization Commission, 1869, pp. 114, 124, 129, 138].

(g) [Ibid. p. 116. Italian Civil Code, Art. iii. Civil Code of Greece, Art. 5].

(h) [Ohio, Michigan, Illinois].

(i) [Vermont, N. and S. Carolina].

(k) [Connecticut, Maine, Delaware, Maryland, Virginia, Tennessee, Arkansas, Indiana, Missouri. See Rep. of Nat. Comm. p. 131; and U. S. Diplom.

Cor., 1873, p. 1414].

() [33 & 34 Vict. c. 14, s. 2. See Appendix A].

(m) [As to British colonies and dependencies, see Rep. of Nat. Comm. 1869, p. 137].

(n) [Calvin's case, 2 State Tr. 639; Donegani v. Donegani, 3 Knapp, P. C. 63; Re Adam, 1 Moo. P. C. 460. Fourteenth Amendment to U. S. Constitution, U. S. Statutes at Large, vol. xv. p. 706].

(0) [G. Brock to Sir C. L. Wyke, 26th July, 1868, Nat. Comm. Rep. p. 143].

(p) [Civil Code of Portugal, tit. iii. art. 18, No. 2]. (7) [Law of 28th July, 1850, F. O. No. 44, art. 1]. (r) [Civil Code of Italy, lib. i. tit. i. art. 81.

§ 82b. Effect of

birth in various

States.

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European country, he does not acquire its national character, but follows that of his father, if legitimate, and that of his mother, if illegitimate (s). However, in Baden (t), Belgium (u), France (x), Greece (y), and Spain (*), children of alien parents born there, are enabled to acquire the nationality of the country by a declaration made within a year of their coming of age, of their wish to do so. The French law has a further provision, that if the alien father was himself born in France, his child is considered a Frenchman, unless, within the same period, he makes a declaration of his wish to be a foreigner (a).

As to personal property, the lex domicilii of its owner prevails over the law of the country where such property is situated, so far as respects the rule of inheritance :-Mobilia ossibus inhærent, personam sequuntur. Thus the law of the place, where the owner of personal property was domiciled at the time of his decease, governs the succession ab intestato as to his personal effects wherever they may be situated (b). Yet it had once been doubted, how far a British subject could, by changing his native domicile for a foreign domicile without the British empire, change the rule of succession to his personal property in Great Britain; though it was admitted that a change of domicile, within the empire, as from England to Scotland, would have that effect (c). But these doubts have been overruled in a more recent decision, by the Court of Delegates in England establishing the law, that the actual foreign domicile of a British subject is exclusively to govern, in respect to his testamentary disposition of personal property, as it would in the case of a mere foreigner (d).

So also the law of a place where any instrument, relating to personal property, is executed, by a party domiciled in that place, governs, as to the external form, the interpretation, and

(8) [Rep. of Nat. Comm. pp. 141—149].

(t) [Baden Landrecht, art. 9].

(u) [Civil Code of Belgium, art. 9. Law of 27th Sept. 1835, art. 2].
(a) [Code Napoleon; Code Civil, liv. i. c. i. § 9].

(y) [Civil Code of Greece, arts. 17, 19].

(*) [Royal Decree, 17th Nov. 1852].

(a) [Law of 29th Jan. and 7th Feb. 1851, art. i.].

(b) Huberus, Prælect., tom. ii. lib. i. tit. 3, de Conflict. Leg. §§ 14, 15. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 16. See also an opinion given by Grotius as counsel in 1613, Henry's Foreign Law, App. p. 196. Merlin, Répertoire, tit. Loi, § 6, No. 3. Felix, Droit International Privé, § 37.

(c) Per Sir J. Nicholl, in Curling v. Thornton, 2 Addams' Eccles. Rep. p. 17. [Wharton, § 585].

(d) Stanley v. Bernes, 3 Haggard. Eccles. pp. 393-465; Moore v. Darell, 4 ibid. 346, 354. [P'er Lord Westbury in Attorney-General v. Campbell, L. R. 5 H. L. 529].

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