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The Law of Nations or the Principles of Natural Law (1758)

Emmerich de Vattel

BOOK 2, CHAPTER 7
Effects of the Domain Between Nations

§ 79. General effect of the domain.
WE have explained, in Chap. XVIII. Book I., how a nation takes possession of a country, and at the same time gains possession of the domain and the government thereof. That country, with every thing included in it, becomes the property of the nation in general. Let us now see what are the effects of this property, with respect to other nations. The full domain is necessarily a peculiar and exclusive right; for, if I have a full right to dispose of a thing as I please, it thence follows that others have no right to it at all, since, if they had any, I could not freely dispose of it. The private domain of the citizens may be limited and restrained in several ways by the laws of the state, and it always is so by the eminent domain of the sovereign; but the general domain of the nation is full and absolute, since there exists no authority upon earth by which it can be limited: it therefore excludes all light on the part of foreigners. And, as the rights of a nation ought to be respected by all others (§ 64), none can form any pretensions to the country which belongs to that nation, nor ought to dispose of it without her consent, any more than of the things contained in the country.

§ 80. What is comprehended in the domain of a nation.
The domain of the nation extends to every thing she possesses by a just title: it comprehends her ancient and original possessions, and all her acquisitions made by means which are just in themselves, or admitted as such among nations, — concessions, purchases, conquests made in the regular war, etc. And by her possessions we ought not only to understand her territories, but all the rights she enjoys.

§ 81. The property of the citizens is the property of the nation, with respect to foreign nations.
Even the property of the individuals is, in the aggregate, to be considered as the property of the nation, with respect to other states. It, in some sort, really belongs to her, from the right she has over the property of her citizens, because it constitutes a part of the sum total of her riches, and augments her power. She is interested in that property by her obligation to protect all her members. In short, it cannot be otherwise, since nations act and treat together as bodies in their quality of political societies, and are considered as so many moral persons. All those who form a society, a nation being considered by foreign nations as constituting only one whole, one single person, — all their wealth together can only be considered as the wealth of that same person. And this is to true, that each political society may, if it pleases, establish within itself a community of goods, as Campanella did in his republic of the sun. Others will not inquire what it does in this respect: its domestic regulations make no change in its rights with respect to foreigners nor in the manner in which they ought to consider the aggregate of its property, in what way soever it is possessed.

§ 82. A consequence of this principle.
By an immediate consequence of this principle, if one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation until the debt be discharged. This maxim is of great use, as shall hereafter be shown.

§ 83. Connection of the domain of the nation with the sovereignty.
The general domain of the nation over the lands she inhabits is naturally connected with the empire; for, in establishing herself in a vacant country, the nation certainly does not intend to possess it in subjection to any other power: and, can we suppose an independent nation not vested with the absolute command in her domestic concerns? thus, we have already observed (Book I, § 205), that, in taking possession of a country, the nation is presumed to take possession of its government at the same time. We shall here proceed further, and show the natural connection of these two rights in an independent nation. How could she govern herself at her own pleasure in the country she inhabits, if she cannot truly and absolutely dispose of it? And how could she have the full and absolute domain of a place where she has not the command? Another’s sovereignty, and the rights it comprehends, must deprive her of the free disposal of that place. Add to this the eminent domain which constitutes a part of the sovereignty (Book 1, § 244), and you will the better perceive the intimate connection existing between the domain and the sovereignty of the nation. And, accordingly, what is called the high domain, which is nothing but the domain of the body of the nation, or of the sovereign who represents it, is everywhere considered as inseparable from the sovereignty. The useful domain, or the domain confined to the rights that may belong to an individual in the state, may be separated from the sovereignty: and nothing prevents the possibility of its belonging to a nation in places that are not under her jurisdiction. Thus, many sovereigns have fiefs, and other possessions, in the territories of another prince: in these cases they possess them in the manner of private individuals.

§ 84. Jurisdiction.
The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her sovereign, to exercise justice in all the places under her jurisdiction, to take cognizance of the crimes committed, and the differences that arise in the country.

Other nations ought to respect this right. And, as the administration of justice necessarily requires that every definitive sentence, regularly pronounced, be esteemed just, and executed as such, — when once a cause in which foreigners are interested has been decided in form, the sovereign of the defendants cannot hear their complaints. To undertake to examine the justice of a definitive sentence is an attack on the jurisdiction of him who has passed it. The prince, therefore, ought not to interfere in the causes of his subjects in foreign countries, and grant them his protection, excepting in cases where justice is refused, or palpable and evident injustice done, or rules and forms openly violated, or, finally, an odious distinction made, to the prejudice of his subjects, or of foreigners in general. The British court established this maxim with great strength of evidence, on occasion of the Prussian vessels seized and declared lawful prizes during the last war.1 What is here said has no relation to the merits of that particular cause, since they must depend on facts.

§ 85. Effects of the jurisdiction in foreign countries.2
In consequence of these rights of jurisdiction, the decisions made by the judge of the place within the extent of his power ought to be respected, and to take effect even in foreign countries. For instance, it belongs to the domestic judge to nominate tutors and guardians for minors and idiots. The law of nations, which has an eye to the common advantage and the good harmony of nations, requires, therefore, that such nomination of a tutor or guardian be valid, and acknowledged in all countries where the pupil may have any concerns. Use was made of this maxim in the year 1672, even with respect to a sovereign. The abbé D’Orléans, sovereign prince of Neufchatel, in Switzerland, being incapable of managing his own affairs, the king of France appointed, as his guardian, his mother, the duchess-dowager of Longueville. The duchess of Nemours, sister to that prince, laid claim to the guardianship for the principality of Neufchatel: but the title of the duchess of Longueville was acknowledged by the three estates of the country. Her counsel rested her cause on the circumstances of her having been nominated guardian by the domestic judge.3 This was a very wrong application of a just principle: for, the prince’s domestic residence could be no where but in his state: and it was only by the decree of the three estates, who alone had a right to choose a guardian for their sovereign, that the authority of the duchess of Longueville became firm and lawful at Neufchatel.

In the same manner the validity of a testament,4 as to its form, can only be decided by the domestic judge, whoso sentence delivered in form ought to be everywhere acknowledged. But, without affecting the validity of the testament itself, the bequests contained in it may be disputed before the judge of the place where the effects are situated, because those effects can only be disposed of conformably to the laws of the country. Thus, the abbé D’Orléans above mentioned having appointed the prince of Conti his universal legatee, — the three estates of Neufchatel, without waiting till the parliament of Paris should pronounce their decision on the question of two contradictory wills made by the abbé D’Orléans, gave the investiture of the principality to the duchess of Nemours, — declaring that the sovereignty was unalienable. Besides, it might have been said on this occasion also, that the domestic residence of the prince could be nowhere but in the state.

§ 86. Desert and uncultivated places.
As every thing included in the country belongs to the nation, — and, as none but the nation, or the person on whom she has devolved her right, is authorized to dispose of those things (§ 79), — if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her; she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property. It is, however, necessary to recollect here what we have observed above (Book I. § 81). No nation can lawfully appropriate to herself a too disproportionate extent of country, and reduce other nations to want subsistence, and a place of abode. A German chief, in the time of Nero, said to the Romans, “As heaven belongs to the gods, so the earth is given to the human race; and desert countries are common to all,”5 — giving those proud conquerors to understand that they had no right to reserve and appropriate to themselves a country which they left desert. The Romans had laid waste a chain of country along the Rhine, to cover their provinces from the incursions of the barbarians. The German’s remonstrance would have had a good foundation, had the Romans pretended to keep without reason a vast country which was of no use to them: but those lands which they would not suffer to be inhabited, serving as a rampart against foreign nations, were of considerable use to the empire.

§ 87. Duty of the nation in this respect.
When there is not this singular circumstance, it is equally agreeable to the dictates of humanity, and to the particular advantage of the state, to give those desert tracts to foreigners who are willing to clear the land and to render it valuable. The beneficence of the state thus turns to her own advantage; she acquires new subjects, and augments her riches and power. This is the practice in America; and, by this wise method, the English have carried their settlements in the new world to a degree of power which has considerably increased that of the nation. Thus, also, the king of Prussia endeavors to re-people his states laid waste by the calamities of former wars.

§ 88. Right of possessing things that have no owner.
The nation that possesses a country is at liberty to leave in the primitive state of communion certain things that have as yet no owner, or to appropriate to herself the right of possessing those things, as well as every other advantage which that country is capable of affording. And, as such a right is of use, it is, in case of doubt, presumed that the nation has reserved it to herself. It belongs to her, then, to the exclusion of foreigners, unless her laws expressly declare otherwise; as those of the Romans, which left wild beasts, fish, etc., in the primitive state of communion. No foreigner, therefore, has a natural right to hunt or fish in the territories of a state, to appropriate to himself a treasure found there, etc.

§ 89. Rights granted to another nation.
There exists no reason why a nation, or a sovereign, if authorized by the laws, may not grant various privileges in their territories to another nation, or to foreigners in general, since every one may dispose of his own property as he thinks fit. Thus, several sovereigns in the Indies have granted to the trading nations of Europe the privilege of having factories, ports, and even fortresses and garrisons in certain places within their dominions. We may in the same manner grant the right of fishing in a river, or on the coast, that of hunting in the forests, etc., and, when once these rights have been validly ceded, they constitute a part of the possessions of him who has acquired them, and ought to be respected in the same manner as his former possession.

§ 90. It is not allowable to drive a nation out of a country which it inhabits.
Whoever agrees that robbery is a crime, and that we are not allowed to take forcible possession of our neighbor’s property, will acknowledge, without any other proof, that no nation has a right to expel another people from the country they inhabit, in order to settle in it herself. Notwithstanding the extreme inequality of climates and soils, every people ought to be contented with that which has fallen to their share. Will the conductors of nations despise a rule that constitutes all their safety in civil society? Let this sacred rule be entirely forgotten, and the peasant will quit his thatched cottage to invade the palaces of the great, or the delightful possessions of the rich. The ancient Helvetians, discontented with their native soil, burned all their habitations, and commenced their march, in order to establish themselves, sword in hand, in the fertile plains of southern Gaul. But they received a terrible lesson from a conqueror of superior abilities to themselves, and who paid still less regard to the laws of justice. Caesar defeated them, and drove them back into their own country. Their posterity, however, more wise than they, confine their views to the preservation of the lands and the independence they have received from nature: they live contented, and the labor of free hands counterbalances the sterility of the soil.

§ 91. to extend by violence the bounds of empire.
There are conquerors, who, aspiring after nothing more than the extension of the boundaries of their dominions, without expelling the inhabitants from a country, content themselves with subduing them; — a violence less barbarous, but not less unjust: while they spare the property of individuals, they seize all the rights of the nation, and of the sovereign.

§ 92. The limits of territories ought to be carefully settled.
Since the least encroachment on the territory of another is an act or injustice, — in order to avoid the commission of any such act, and to prevent every subject of discord, every occasion of quarrel, the limits of territories ought to be marked out with clearness and precision. If those who drew up the treaty of Utrecht had bestowed on so important a subject all the attention it deserved, we should not see France and England in arms, in order to decide by a bloody war what are to be the boundaries of their possessions in America. But the makers of treaties often designedly leave in them some obscurity, some uncertainty, in order to reserve for their nation a pretext for a rupture: — an unworthy artifice in a transaction wherein good faith alone ought to preside! We have also seen commissioners endeavoring to overreach or corrupt those of a neighboring state, in order to gain for their master an unjust acquisition of a few leagues of territory. How can princes or ministers stoop to dirty tricks that would dishonor a private man?

§ 93. Violation of territory.
We should not only refrain from usurping the territory of others; we should also respect, and abstain from every act contrary to the rights of the sovereign: for, a foreign nation can claim no right in it (§ 79). We cannot, then, without doing an injury to a state, enter its territories with force and arms in pursuit of a criminal, and take him from thence. This would at once be a violation of the safety of the state, and a trespass on the rights of empire or supreme authority vested in the sovereign. This is what is called a violation of territory; and among nations there is nothing more generally acknowledged as an injury that ought to be vigorously repelled by every state that would not suffer itself to be oppressed. We shall make use of this principle in speaking of war, which gives occasion for many questions on the rights of territory.

§ 94. Prohibition to enter the territory.6
The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases, or to certain persons or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country. Formerly the Chinese, fearing lest the intercourse of strangers should corrupt the manners of the nation, and impair the maxims of a wise but singular government, forbade all people entering the empire: a prohibition that was not at all inconsistent with justice, provided they did not refuse human assistance to those whom tempest or necessity obliged to approach their frontiers. It was salutary to the nation, without violating the rights of any individual, or even the duties of humanity, which permits us, in case of competition, to prefer ourselves to others.

§ 95. A country possessed by several nations at the same time.
If at the same time two or more nations discover and take possession of an island or any other desert land without an owner, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled.

§ 96. A country possessed by a private person.
An independent individual, whether he has been driven from his country, or has legally quitted it of his own accord, may settle in a country which he finds without an owner, and there possess an independent domain. Whoever would afterwards make himself master of the entire country, could not do it with justice without respecting the rights and independence of this person. But, if he himself finds a sufficient number of men who are willing to live under his laws, he may form a new state within the country he has discovered, and possess there both the domain and the empire. But, if this individual should arrogate to himself alone an exclusive right to a country, there to reign monarch without subjects, his vain pretensions would be justly held in contempt: — a rash and ridiculous possession can produce no real right.

There are also other means by which a private person may found a new state. Thus, in the eleventh century, some Norman noblemen founded a new empire in Sicily, after having wrested that island by conquest from the common enemies of the Christian name. The custom of the nation permitted the citizens to quit their country in order to seek their fortune elsewhere.

§ 97. Independent families in a country.
When several independent families are settled in a country, they possess the free domain, but without sovereignty, since they do not form a political society. Nobody can seize the empire of that country; since this would be reducing those families to subjection against their will; and no man has a right to command men who are born free, unless they voluntarily submit to him.

If those families have fixed settlements, the place possessed by each is the peculiar property of that family: the rest of the country of which they make no use, being left in the primitive state of communion, belongs to the first occupant. Whoever chooses to settle there, may lawfully take possession of it.

Families wandering in a country, as the nations of shepherds, and ranging through it as their wants require, possess it in common: it belongs to them to the exclusion of all other nations; and we cannot, without injustice, deprive them of the tracts of country of which they make use. But, let us here recollect what we have said more than once (Book I. §§ 81 and 209, Book II. § 69). The savages of North America had no right to appropriate all that vast continent to themselves; and since they were unable to inhabit the whole of those regions, other nations might, without injustice, settle in some parts of them, provided they left the natives a sufficiency of land. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them. Nevertheless, no other nation has a right to narrow their boundaries, unless she be under an absolute want of land. For, in short, they possess their country; they make use of it after their manner; they reap from it an advantage suitable to their manner of life, respecting which they have no laws to receive from any one. In a case of pressing necessity, I think people might, without injustice, settle in a part of that country, on leading the Arabs the means of rendering it, by the cultivation of the earth, sufficient for their own wants, and those of the new inhabitants.

§ 98. Possession of certain places only, or of certain rights, in a vacant country.
It may happen that a nation is contented with possessing only certain places, or appropriating to itself certain rights, in a country that has not an owner, without being solicitous to take possession of the whole country. In this case, another nation may take possession of what the first has neglected; but this cannot be done without allowing all the rights acquired by the first to subsist in their full and absolute independence. In such cases, it is proper that regulations should be made by treaty; and this precaution is seldom neglected among civilized nations.


NOTES

     1.    See the report made to the King of Great Britain by Sir George Lee, Dr. Paul, Sir Dudley Ryder, and Mr. Murray. It is an excellent piece on the law of nations.
     2.    This principle appears to be now settled by the law and practice of nations; but, nevertheless, subject to certain general wholesome rules, essential to be adhered to in order to prevent the effect of partial and unjust sentences and decisions. The respected decisions which have given rise to discussion, have principally been in foreign Courts of Admiralty, or Prize Courts; and the law respecting them has been better settled by the decisions of Sir W. Scott and Sir J. Nichol, so universally respected than at any other period of history. By the long established doctrine in England, and by the more recent general practice of European nations, a sentence of condemnation, pronounced in a court of competent jurisdiction, is essential, completely to transfer the legal interest in property captured as prize, (per Sir W. Scott, in the Flad Oyen 1 Rob. Rep. 115). And, in order to constitute a legal prize-court to pronounce a binding sentence, by the law of nations, certain requisites are essential. The celebrated report drawn up by Lord Mansfield and signed by him and other very eminent personages as their opinion, contains much of the law of nations upon the subject. (See Postle. Universal Dict. of Trade and Commerce, article Silesia, 4th ed.; and 1 Col. Jurid. 133; and see Lindo v. Rodney, 2 Doug. 613, and Le Caux v. Eden, id. 594.) One rule was there laid down, that the condemnation must have been pronounced by a court belonging to the belligerent country. (See id., and Havelock v. Rockwood, Atcheson’s Rep. 7 & 8; 8 Term Re. 288; 1 Col. Jurid. 130.) Secondly, the court must have, at the time it pronounced sentence of condemnation, actually sat in the country to which it belonged, and not within the dominions of any foreign prince, whether neutral or an ally; for, otherwise, a captor might have innumerable seats of war, and elude the fair chance of recaption whilst the vessel or property was in progress towards a proper condemning port (Havelock v. Rockwood, Atcheson’s Rep. 8 & 49; The Flad Oyen, 1 Rob. Rep. 115, 8 Term Rep. 270, in notes.) Thirdly, the ship or other property condemned as prize must, at the time of condemnation, in general, be actually in the country where the sentence was pronounced. — Per Sir. W. Scott, in The Flad Oyen. 1 Rob. Rep. 115, where see some exceptions; and see also Havelock v. Rockwood. Atch. Rep. 49; (Jolly v. The Neptune, 2 Pet. Adm. Dec. 345; Findlay v. The William, 1 Pet. Adm. Dec. 12.) See other cases in 1 Harrison’s Index, pp. 687 to 689.

By the marine law of England, as practiced in the High Court of Admiralty, it was formerly held that there was no change of property in case of recaption, so as to bar the original owner in favor of a vendee or recaptor, until there had been a sentence of condemnation (2 Burr. 696; Undo v. Rodney & another, 2 Douglas, 616; 1 Rob. Rep. 139) and now by statutes 13 Geo. 2, c. 4, s. 18, and 29 Geo. 2, c. 34, s. 24, in case of recapture, the jus Postliminii is extended, and continues forever, upon payment of certain salvage, which is regulated and fixed by 33 Geo. 3, c. 66, s. 42. (See 2 Burr. 696, 1209, etc.) And, when the private property of an allied sovereign is recaptured from the enemy, it is to be restored to him free from salvage, or even expense — (Alexander, 2 Dodson’s Rep. 37). With respect to the effect in England of foreign judgments, decrees, and sentences, the present general rule is, that, if they were decided in a foreign court, of competent jurisdiction, they shall be admitted as prima facie valid and binding on the parties in all other countries, but not conclusively so. (See the cases referred to in note (a) to Novelli v. Ross, 2 Barn. & Adolph. 765; and see Frankland v. McGusty, Knapp’s Rep. 295; 1 Ves. 159; 2 Strange 733; 2 Bing. 380; 3 Bing. 353; 4 Barn, & Cres. 637; Tarleton v. Tarleton, 4 Maule & Sel. 20; Kennedy v. Cassilus. 2 Swanst. 325); {Calhoun v. Fitzsimmons, 1 Bin. Rep. 293; Calbreath v. Gracy, 1 Wash. C.C. Rep. 219.) And it was held, that a decree of the sale of a ship made in an American court of competent jurisdiction, pending war with this country, was to be received in the Court of Admiralty in England as legally operative. (The Experiments, 2 Dods. Rep. 46, 47); {Thirty, etc. v. Boyle, 9 Cranch, 191}. So, a marriage, established by the sentence of a foreign court having proper jurisdiction, has even been considered as conclusive by the law of nations (Roach v. Gavan, 1 Ves. sen. 159); {Story, Conf. Laws. p. 103, ed. 1834}; and it was laid down by De Grey, C.J. that the judgment of a court of competent jurisdiction directly upon a point, is, as a plea, a bar, or, as evidence, conclusive, between the same parties upon the same matter directly in question in another court. (See Duchess of Kingston’s case, 20 Howell’s state Trials, 538; and see Bul. N. Pri. 244; Phillips v. Hunter, 2 Hen. Bla. 402. per Eyre, C.J.; and see, as to that point, 1 Phillips on Evid. part ii. c. 2 and 3, {vol.4, Am. ed. 18839, New York, pages 856 to 915}; and Starkle on Evid. part ii. §§ 67, 68; Frankland v. McGusty, 1 Knapp’s Rep. 274; Buchanan v. Rucker, 1 Campb. 63. 180, n., 9 East, 192, S.C.; Sadler v. Robins, id. 280, 253; Cavan v. Stewart, 1 Stark. Rep. 525; and see 1 Chitty’s Com. L 61 to 65.)

But such foreign decision is not conclusive like the judgement of a court of record in England; and, therefore, if a man recover a judgment or sentence in France for money due to him, the debt must be considered here in England as only a simple contract debt, and the statute of limitations wilt run upon it (Dupleix v. De Rowen, 2 Vern. 540); and the sentence of a court of summary jurisdiction in France cannot be pleaded to a bill in Chancery in England for the same matter. (Gage v. Bulkeley, 3 Atk. 215); and it should seem, that even a recovery of a judgment upon a bond in a foreign country is no bar to an action here on the same bond. (Foster v. Vassall, 3 Atk. 589, decided upon an Irish bond and judgment before the Union.) It is true that there are cases which seem to decide that such foreign judgments are conclusive. (See Newland v. Horseman, 1 Vern. 21.) In a late case the Vice Chancellor held that the grounds of a foreign judgment cannot be reviewed in the courts of this country, and that, therefore, a bill for a discovery and a commission to examine witnesses in Antigua, in aid of the parties’ defense to an action brought on the judgment in this country, was demurrable. (Martin v. Nicholls, 3 Simon’s Rep. 458, cited by Parke, J., in Bequest v. McCarthy, 2 Barn. & Adol. 954; see also Kennedy v. Cassilis, 2 Swans. 326.) But that doctrine is not sustainable, and, therefore, upon an appeal to the Privy Council from a decree of the court of justice at Demerara, such decree being for a sum of money alleged to be due on foreign judgments, was reversed, on the ground that such court of justice had erroneously determined that those judgments were conclusive when they were only prima facie evidence of the debt, and it was competent to the original defendant to show that the judgment had been improperly obtained. (Frankland v. McGusty and Others, Knapp’s Rep. 274.)

If, therefore, a foreign judgment appear upon the face of it to have proceeded, either wholly in the defendant’s absence, and without his having had any opportunity of knowing of the proceeding, and defending it, and, therefore, manifestly against justice; or if the decision has manifestly proceeded upon false premises, or in adequate reasons, or upon a mistake of local or foreign law, and which ought to have occasioned a different decision (Novelli v. Ross, 2 Barn. & Adol. 757); or, even if either of those objections be shown by extrinsic evidence (Frankland v. McGusty, Knapp’s Rep. 274 to 310; semble, overruling the contrary decision in Martin v. Nicolls, 3 Simon’s Rep. 456, and 2 Swans. 326); Then, it seems now to be clearly settled, at least in England, that the foreign decision will not be binding or valid — (id. ibid.) Thus, it was recently held, that where the French courts had in their decrees, on the face of them, mistaken the law of England as to the effect of a cancellation of the acceptance of a hill by mistake, and had, on that ground, and contrary to the English law, adjudged that the defendant, as well as the plaintiff, was discharged from liability by such cancellation, when, according to the English law, they remained liable, it was held, in the Court of King’s Bench in England, that the defendant was still liable to be sued by the plaintiff for the debt in respect of which the bills were given, notwithstanding the decree, (Novelli v. Rossi, 2 Barn. & Adolp. 757.) And, upon appeal to the Privy Council, a decree of the court of justice of Demerara, for a sum of money due upon three foreign judgments in St. Vincent’s, was reversed, on the ground that those judgments had been improperly obtained, (Frankland v. McGusty. Knapp’s Rep. 274.) So, if it appear on the face of the proceedings, or otherwise, that the defendant in the foreign court was absent from the country before the suit was commenced, the judgment against him may be deemed invalid. (Buchanan v. Rucker, 1 Campb. 63, 9 East Rep. 192; Cavan v. Stewart, 1 Stark, Rep. 525; Frankland v. McGusty, Knapp’s Rep. 304.) But, to render a foreign judgment void, on the ground that it Is contrary to the law of the country where it was given, or to reason and justice, it must be shown clearly and equivocally to be so. (Becquet v. McCarthy, 3 Barn, & Adolp. 951.)

But, if the error do not appear upon the face of the proceeding and the party complaining of the judgment himself was misled, and submitted to the decision instead of protesting against it, he is too late to complain upon an appeal against it. (Macallister v. Macallister, 4 Wilson & Shaw, 142, 147.) And where the law of a British colony required, that, on a suit instituted against an absent party, the process should be served upon the King’s Attorney-General in the colony, but it was not expressly provided that the Attorney General should communicate with the absent party; it was held, that such law was not so contrary to national justice as to render void a judgment obtained against a party who had resided within the jurisdiction of the court at the time when the cause of action accrued, but had withdrawn himself before the proceedings were commenced. (Ibid.; Douglas v. Forrest, 4 Bing. 686; 1 Moore & Pay. 663.) So, horning in Scotland (though the party was absent), was held legal, where the defendant had been domiciled in that country, and had left property there. (Douglas v. Forrest.)

In England, the judgment of an English court of record, however inferior, is conclusive, until reversed by writ of error (1 Doug. 5), and even English judgments of inferior courts, not of record, are to some purposes conclusive, unless it appear upon the face of the proceedings to have been unfairly obtained (2 Burr. 1009; 2 Bing. 216). But the judgment of an inferior court may be controverted, when it appears that the proceedings have been bad in law, as, where a summons and attachment, which ought to have been successive proceedings, in default of appearance to the former, were issued against the defendant at the same time, and returnable at the same time, and to which the defendant never appeared (3 Bar. & Cres. 772; 5 Dowl. & Ryl. 719, S.C.); and it seems that the judgment of an inferior court may be avoided, by proof that the cause of action did not arise within the jurisdiction of the court. (Willes, 36 n.; 2 Big. 213.)

With respect to the proof of foreign judgments and decrees in England, it has been decided, that an exemplification of a sentence in Holland under the common seal of the States, may be read in evidence in a suit in Chancery. Anon. 9 Mod. 56.
     3.    Memorial in behalf of the duchess of Longueville, 1672.
     4.    See post Book 2, ch. 7, § 103 and § 111.

It is now settled in Great Britain that a will is to be construed, interpreted, and given effect to, according to the law of the country where it was made and where the testator had his domicile, and every court in every country is bound to construe it accordingly. (Trotter v. Trotter, 3 Wilson & Shaw, Rep. on Appeal Cases, 407, 414, — in House of Lords appeal from Scotland.) And, therefore, where a natlve of Scotland, domiciled in India, but who possessed heritable bonds in Scotland, as well as personal property there, and also, in lndia, having executed a will in India, ineffectual to convey Scotch heritage; and a question having arisen whether his heir-at-law (who claimed the heritable bonds as heir) was also entitled to a share of the movable property, as legatee under the will — it was held in the House of Lords, in England (affirming the judgment of the court below), that the construction of the will, as to whether it expressed an intention to pass the Scotch heritable bonds, and the legal consequences of that construction, must be determined by the law of the land where if was made, and where the testator had his domicile, namely India, that is, by the law of England; and this although the will was the subject of judicial inquiry in the courts of Scotland; for, these courts also are bound to decide according to the law of the place where the will was made, (Id. ibid. 414.) “A will must be interpreted according to the law of the country where it is made, and where the party making the will has his domicile. There are certain rules of construction adopted in the courts, and the expressions which are made use of in a will, and the language of a will, have frequently reference to those rules of construction; and it would be productive, therefore, of the most mischievous consequences, and in many instances defeat the intention of the testator if those rules were to be altogether disregarded, and the judges of a foreign court (which it may be considered, in relation to the will), without reference to that knowledge which it is desirable to obtain of the law of the country in which the will was made, were to interpret the will according to their own rules of construction, that would also be productive of another inconvenience, namely, that the will might have a construction put upon it in the English courts different from that which might be put upon it in the foreign country. It appears to me, my Lords, that there is no solid ground for the objection; but that, where a will is executed in a foreign country by a person having his domicile in that country, with respect to that person’s property, the will must be interpreted according to the law of the country where it is made; it must, if it comes into question, in any proceeding, have the same interpretation put upon it as would be put upon it in any tribunal of the country where it was made.” — Per Lord Chancellor.

But, where a will was made by a native of Scotland, domiciled in England, and having personal property only there, and who went for a short time to Scotland, and there executed his will in the Scotch form, and registered it there, and afterwards died in England, it was held that such will must be construed according to the law of England, (Anstruther v. Chalmers, 2 Simons, 1). It should seem, therefore, that in some cases, as respects personalty, the domicile of the testator is to be regarded rather than the precise place of signing the will (id. ibid., sed quere).

A will made in Jamaica devising rents, issues, and profits of an estate there, passes slaves, mules, cattle, and machinery, (3 Simons, 398, Lusington v. Sewell, 1 Simons, 435, S.P.), though a devise of a farm in England would not pass farming utensils (Stewart v. Maryat, 11 Ves. 657.) So, if a Dutchman be possessed of real estate in Holland, and personal estate in England, and devise his real estate to A., and his personal to B., the personal shall be first applied to pay debts in Holland, though real estate is liable there. (Anon. 9 Mod. 66, and see Bowaman v. Reeve, Pre. Ch. 577.) A will of property entirely abroad may be proved there. (Jaunay v. Sealey, 1 Vern. 397.).
     5.    Sicut cœlum diis, ita terras generi mortalium datas; quæque vacuæ, eas publicas esse. — TACIT.
     6.    See further as to the subject of this section, 1 Chit. Com. Law, 73 & 84; Marten’s Law of Nations, 153.