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The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Rules with Respect to Foreigners
§ 99. General idea of the conduct the state ought to observe towards foreigners.
WE have already treated (Book I. § 213) of the inhabitants, or persons who reside in a country where they are not citizens. We shall here treat only of those foreigners who pass through or sojourn in a country, either on business, or merely as travelers. The relation that subsists between them and the society in which they now live — the objects of their journey, and of their temporary residence — the duties of humanity — the rights, the interest, and the safety of the state which harbors them — the rights of that to which they belong — all these principles, combined and applied according to cases and circumstances, serve to determine the conduct that ought to be observed towards them, and to point out our right and our duty with respect to them. But the intention of this chapter is not so much to show what humanity and justice require towards foreigners, as to establish the rules of the law of nations on this subject — rules tending to secure the rights of all parties, and to prevent the repose of nations being disturbed by the quarrels of individuals.
§ 100. Entering the territory.1
Since the lord of the territory may, whenever he thinks proper, forbid its being entered (§ 94), he has, no doubt, a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain. Can it be necessary to add, that the owner of the territory ought, in this instance, to respect the duties of humanity? The case is the same with all rights whatever: the proprietor may use them at his discretion; and, in so doing, he does not injure any person; but, if he would be free from guilt, and keep his conscience pure, he will never use them but in such manner as is most conformable to his duty. We speak here, in general, of the rights which belong to the lord of the country, reserving for the following chapter the examination of the cases in which he cannot refuse an entrance into his territory; and we shall see, in Chap. X., how his duty towards all mankind obliges him, on other occasions to allow a free passage through, and a residence in his state.
If the sovereign annexes any particular condition to the permission to enter his territories, he ought to have measures taken to make foreigners acquainted with it, when they present themselves on the frontier.
There are states, such as China and Japan, into which all foreigners are forbid to penetrate without an express permission; but, in Europe, the access is everywhere free to every person who is not an enemy of the state, except, in some countries, to vagabonds and outcasts.
§ 101. Foreigners are subject to the laws.
But, even in those countries which every foreigner may freely enter, the sovereign is supposed to allow him access only upon this tacit condition, that he be subject to the laws, — I mean the general laws made to maintain good order, and which have no relation to the title of citizen or of subject of the state. The public safety, the rights of the nation and of the prince, necessarily require this condition; and the foreigner tacitly submits to it, as soon as he enters the country, as he cannot presume that he has access upon any other footing. The sovereignly is the right to command in the whole country; and the laws are not simply confined to regulating the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state.
§ 102. And punishable according to the laws.
In virtue of this submission, foreigners who commit faults are to be punished according to the laws of the country. The object of punishment is to cause the laws to be respected, and to maintain order and safety.
§ 103. Who is the judge of their disputes.
For the same reason, disputes that may arise between foreigners, or between a foreigner and a citizen, are to be determined by the judge of the place, and according to the laws of the place.2 And, as the dispute properly arises from the refusal of the defendant, who maintains that he is not bound to perform what is required of him, it follows, from the same principle, that every defendant ought to be prosecuted before his own judge, who alone has a right to condemn him, and compel him to the performance. The Swiss have wisely made this rule one of the articles of their alliance, in order to prevent the quarrels that might arise from abuses that were formerly too frequent in relation to this subject. The defendant’s judge is the judge of the place where that defendant has his settled abode, or the judge of the place where that defendant has his settled abode, or the judge of the place where the defendant is, when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In this last case, as property of that kind is to be held according to the laws of the country where it is situated, and as the right of granting possession is vested in the ruler of the country, disputes relating to such property can only be decided in the state on which it depends.
We have already shown (§ 84) how the jurisdiction of a nation ought to be respected by other sovereigns, and in what cases alone they may interfere in the causes of their subjects in foreign countries.
§ 104. Protection due to foreigners.
The sovereign ought not to grant an entrance into his state for the purpose of drawing foreigners into a snare; as soon as he admits them, he engages to protect them as his own subjects, and to afford them perfect security, as far as depends on him. Accordingly, we see that every sovereign who has given an asylum to a foreigner, considers himself no less offended by an injury done to the latter, than he would be by an act of violence committed on his own subject. Hospitality was in great honor among the ancients, and even among barbarous nations, such as the Germans. Those savage nations who treated strangers ill, that Scythian tribe who sacrificed them to Diana,3 were universally held in abhorrence; and Grotius justly says4 that their extreme ferocity excluded them from the great society of mankind. All other nations had a right to unite their forces in order to chastise them.
§ 105. Their duties.
From a sense of gratitude for the protection granted to him, and the other advantages he enjoys, the foreigner ought not to content himself with barely respecting the laws of the country; he ought to assist it upon occasion, and contribute to its defense, as far as is consistent with his duty as citizen of another state. We shall see elsewhere what he can and ought to do, when the country is engaged in a war. But there is nothing to hinder him from defending it against pirates or robbers, against the ravages of an inundation, or the devastations of fire. Can he pretend to live under the protection of a state, to participate in a variety of advantages that it affords, and yet make no exertion for its defense, but remain an unconcerned spectator of the dangers to which the citizens are exposed?
§ 106. To what burdens they are subject.
He cannot, indeed, be subject to those burdens that have only a relation to the quality of citizens; but he ought to bear his share of all the others. Being exempted from serving in the militia, and from paying those taxes destined for the support of the rights of the nation, he will pay the duties imposed upon provisions, merchandise, etc., and, in a word, every thing that has only a relation to his residence in the country, or to the affairs which brought him thither.
§ 107. Foreigners continue members of their own nation.
The citizen or the subject of a state who absents himself for a time without any intention to abandon the society of which he is a member, does not lose his privilege by his absence: he preserves his rights, and remains bound by the same obligations. Being received in a foreign country, in virtue of the natural society, the communication, and commerce which nations are obliged to cultivate with each other (Prelim. §§ 11, 12; Book II. § 21), he ought to be considered there as a member of his own nation, and treated as such.
§ 108. The state has no right over the person of a foreigner;5
The state, which ought to respect the rights of other nations, and in general those of all mankind, cannot arrogate to herself any power over the person of a foreigner, who, though he has entered her territory, has not become her subject. The foreigner cannot pretend to enjoy the liberty of living in the country without respecting the laws: if he violates them, he is punishable as a disturber of the public peace, and guilty of a crime against the society in which he lives: but he is not obliged to submit, like the subjects, to all the commands of the sovereign: and, if such things are required of him as he is unwilling to perform, he may quit the country. He is free at all times to leave it; nor have we a right to detain him, except for a time, and for very particular reasons, as, for instance, an apprehension, in war time, lest such foreigner, acquainted with the state of the country and of fortified places, should communicate his knowledge to the enemy.6 From the voyages of the Dutch to the East Indies, we learn that the kings of Corea forcibly detain foreigners who are shipwrecked on their coast; and Bodinus assures us,7 that a custom so contrary to the law of nations was practiced in his time in Ethiopia, and even in Muscovy. This is at once a violation of the rights of individuals, and of those of the state to which they belong. Things have been greatly changed in Russia; in a single reign — that of Peter the Great — has placed that vast empire in the rank of civilized nations.
§ 109. nor over his property.
The property of an individual does not cease to belong to him on account of his being in a foreign country; it still constitutes a part of the aggregate wealth of his nation (§ 81). Any power, therefore, which the lord of the territory might claim over the property of a foreigner would be equally derogatory to the rights of the individual owner and to those of the nation of which he is a member.8
§ 110. Who are the heirs of a foreigner.
Since the foreigner still continues to be a citizen of his own country, and a member of his own nation (§ 107), the property he leaves at his death in a foreign country ought naturally to devolve to those who are his heirs according to the laws of the state of which he is a member. But, notwithstanding this general rule, his immovable effects are to be disposed of according to the laws of the country where they are situated. (See § 103.)
§ 111. Will of a foreigner.9
As the right of making a will, or of disposing of his fortune in case of death, is a right resulting from property, it cannot, without injustice, be taken from a foreigner. The foreigner, therefore, by natural right, has the liberty of making a will. But, it is asked, by what laws he is obliged to regulate himself, either in the form of his testament, or in the disposal of his property. 1. As to the form or solemnities appointed to settle the validity of a will it appears that the testator ought to observe those that are established in the country where he makes it, unless it be otherwise ordained by the laws of the state of which he is a member; in which case, he will be obliged to observe the forms which they prescribe, if he would validly dispose of the property he possesses in his own country. I speak here of a will which is to be opened in the place where the person dies; for, if a traveler makes his will, and sends it home under seal, it is the same thing as if it had been written at home; and, in this case, it is subject to the laws of his own country. 2. As to the bequests themselves, we have already observed that those which relate to immovables ought to be conformable to the laws of the country where those immovables are situated. The foreign testator cannot dispose of the goods, movable or immovable, which he possesses in his own country, otherwise than in a manner conformable to the laws of that country. But, as to movable goods, specie, and other effects which he possesses elsewhere, which he has with him, or which follow his person, we ought to distinguish between the local laws, whose effect cannot extend beyond the territory, and those laws which peculiarly affect the character of citizen. The foreigner, remaining a citizen of his own country, is still bound by those last-mentioned laws, wherever he happens to be, and is obliged to conform to them in the disposal of his personal property, and all his movables whatsoever. The laws of this kind, made in the country where he resides at the time, but of which he is not a citizen, are not obligatory with respect to him. Thus, a man who makes his will, and dies in a foreign country, cannot deprive his widow of the part of his movable effects assigned to that widow by the laws of his own country. A Genevan, obliged by the law of Geneva to leave a dividend of his personal property to his brothers or his cousins, if they be his next heirs, cannot deprive them of it by making his will in a foreign country, while he continues a citizen of Geneva; but, a foreigner dying at Geneva is not obliged, in this respect, to conform to the laws of the republic. The case is quite otherwise with respect to local laws: they regulate what may be done in the territory, and do not extend beyond it. The testator is no longer subject to them when he is out of the territory; and they do not affect that part of his property which is also out of it, the foreigner is obliged to observe those laws, in the country where he makes his will, with respect to the goods he possesses there. Thus, an inhabitant of Neufchatel, to whom entails are forbidden in his own country with respect to the property he possesses there, freely makes an entail of the estate he possesses out of the jurisdiction of the country, if he dies in a place where entails are allowed; and, a foreigner making a will at Neufchatel, cannot make an entail of even the movable property he possesses there, — unless, indeed, we may suppose that his movable property is excepted by the spirit of the law.
§ 112. Escheatage (or doctrine of alienage).10
What we have established in the three preceding sections is sufficient to show with how little justice the crown, in some states, lays claim to the effects left there by a foreigner at his death. This practice is founded on what is called escheatage, by which foreigners are excluded from all inheritances in this state, either of the property of a citizen or that of an alien, and, consequently, cannot be appointed heirs by will, nor receive any legacy. Grotius justly observes, that this law has descended to us from those ages when foreigners were almost considered as enemies.11 Even after the Romans were become a very polite and learned people, they could not accustom themselves to consider foreigners as men entitled to any right in common with them. “Those nations,” says Pomponius, the civilian, “with whom we have neither friendship, nor hospitality, nor alliance, are not, therefore, our enemies; yet, if any thing belonging to us falls into their hands, it becomes their property; our free citizens become slaves to them; and they are on the same terms with respect to us.”12 We cannot suppose that so wise a people retained such inhuman laws with any other view than that of a necessary retaliation, as they could not otherwise obtain satisfaction from barbarous nations, with whom they had no connection or treaties existing, Bodinus shows,13 that escheatage is derived from these worthy sources! It has been successively mitigated, or even abolished, in most civilized states. The emperor Frederic II. first abolished it by an edict, which permitted all foreigners dying within the limits of the empire to dispose of their substance by will, or, if they died intestate, to have their nearest relations for heirs.13 But Bodinus complains that this edict is but ill executed. Why does there still remain any vestige of so barbarous a law in Europe, which is now enlightened and so full of humanity? The law of nature cannot suffer it to be put in practice except by way of retaliation. This is the use made of it by the king of Poland in his hereditary states. Escheatage is established in Saxony; but the sovereign is so just and equitable, that he enforces it only against those nations which subject the Saxons to a similar law.
§ 113. The right of traite foraine.
The right of traite foraine (called in Latin jus detractus) is more conformable to justice and the mutual obligation of nations. We give this name to the right by virtue of which the sovereign retains a moderate portion of the property either of citizens or aliens which is sent out of his territories to pass into the hands of foreigners. As the exportation of that property is a loss to the state, she may fairly receive an equitable compensation for it.
§ 114. Immovable property possessed by an alien.
Every state has the liberty of granting or refusing to foreigners the power of possessing Lands or other immovable property within her territory.14 If she grants them that privilege, all such property possessed by aliens remains subject to the jurisdiction and laws of the country, and to the same taxes as other property of the same kind. The authority of the sovereign extends over the whole territory; and it would be absurd to except some parts of it, on account of their being possessed by foreigners. If the sovereign does not permit aliens to possess immovable property, nobody has a right to complain of such prohibition; for, he may have very good reasons for acting in this manner: and, as foreigners cannot claim any right in his territories (§ 79), they ought not to take it amiss that he makes use of his power and of his rights in the manner which he thinks most for the advantage of the state. And, as the sovereign may refuse to foreigners the privilege of possessing immovable property, he is doubtless at liberty to forbear granting it except with certain conditions annexed.
§ 115. Marriages of aliens.15
There exists no natural impediment to prevent foreigners from contracting marriages in the state. But, if these marriages are found prejudicial or dangerous to a nation, she has a right, and is even in duty bound to prohibit them, or to subject to certain conditions the permission to contract them: and, as it belongs to the nation or to her sovereign to determine what appears most conducive to the welfare of the state, other nations ought to acquiesce in the regulations which any sovereign state has made on this head. Citizens are almost everywhere forbid to marry foreign wives of a different religion; and in many parts of Switzerland a citizen cannot marry a foreign woman, unless he prove that she brings him in marriage a certain sum fixed by the law.
1. See more fully, Grotius, book 2. chap. 2, p. 153; 1 Chit. Com. L. 86, 87.
2. (In the courts of the United States alien friends are entitled to claim the same protection of their rights as citizens. Taylor v. Carpenter, 3 Story’s Rep. 458.) See ante 166, in notes, as to foreign judgments. The doctrine here advanced by Vattel (excepting as regards land) is contrary to the present French Code, and many other authors. Upon principle, it should seem, that if a contract or right be created in one country, and be there by the lex loci subjected to certain qualifications, and clothed with certain privileges, it ought to be enforced if at all as against all the original parties, precisely the same in a foreign country as it would be in that where it was created; and this, although it be a negotiable security, and the interest therein vested in a third person resident in a foreign country, because the latter ought, when he takes it, to inquire into the circumstances and law which affected it in the place where it was made. And à fortiori it should seem that if a contract or transaction were in violation of the state regulations of a foreign nation where it was made, as in fraud of its revenue, and such state is in amity with another state, the courts of the latter ought not to give effect to it. In neither case ought the accidental removal of either of the parties into a foreign country, or his prosecuting his remedy there, alter the substance of the remedy; and, however inconvenient and difficult it may be to investigate and accurately ascertain the precise state of foreign law, still, if courts will entertain jurisdiction over such cases, they ought to administer the law so as to give effect to the transaction precisely the same as if it had been litigated in the country where created; for, otherwise, the original expectations, rights, and interests of the parties would not be given effect to; and it would be conceded that, more especially after a competent local court has already decided upon the transaction (without any apparent injustice,) such decision ought to be conclusive in all other courts and countries.
These principles are fully acknowledged and given effect to in the present French Code and in their administration of the law. (See Pardessus, Droit Commercial, vol. 1, p. 455, 4 id. 196. 205, 209 to 211 and 220 to 223, titles, “Des Conflits de Legislation relatif au Commerce;” “De l’application de lois estrangeres relatives à la fornie des actes;” “De l’interpretation des actes fails en pays estrangers;’ “De l’execution des actes faits en pays estrangers.”😉 Thus, in their courts it has been considered, that, if a bill of exchange be made in a foreign country, defective according to the French law, but valid according to the foreign law, it must nevertheless be given effect to in the French courts, even against a French endorser, “par ce que les regles sur la validité intrinsèque des conventions, sont dérivées du droit natural, et sont de toutes les législations;”; and in the case of limitations, it is laid down that the law of prescriptions prevailing in the country where the contract was made, though different from that in France, must in their courts, be given effect to. (4 Pardessus, 223.) They admit the difficulty of ascertaining correctly the foreign law, but consider that difficulty as not constituting any sufficient grounds for relieving their courts from the necessity of giving full effect to the contract according to the law of the place where it was made. (4 Pardessus, 246.) When the foreign law differs from that where the suit is depending, undoubtedly the party relying on the foreign law must prove it. (Brown v. Lacy. 1 Dowl. & Ryl. Ni. Pri. Cas. 41, n. (a. As to the evidence, see post, note.)
In Great Britain the same theory is professed, and prevails to a limited extent; but the courts have so narrowly applied it, that, as regards the process for the recovery of the claim, and the time when it must be commenced, it is a doctrine rather in name than in practice, excepting in a few instances as regards foreign marriages, and a few other cases. Dalrymple v. Dalrymple, Hafgg. Rep. 54; Lacon v. Higgins, 1 Dowl. & Ryl. Ni. Pri. Rep. 38; Roach v. Garvan, 1 Ves. 159.) In theory it is laid down, that effect ought to be given to contracts, and especially to bills of exchange according to the law of the country where the contract was made, and in which it was to be performed, and not according to the law of the country into which either or all may remove; for, what is not an obligation in one place cannot, by the laws of another country, become such in another place. (The King of Spain v. Machado, 4 Russ. Rep. 239; Burrows v. Jemino, 2 Stra. 733; Sel. Cas. 144, S.C.; Potter v. Brown, 5 East, 130; Chitty on Bills, 8th edit. 191.)
And a foreign marriage, if celebrated according to the lex loci, will be valid, though in a form quite different to that prescribed by English law. — Lacon v. Higgins, 1 Dowl. & Ryl. Ni. Pri. Cas. 38; 3 Stark Rep. 176; where see the mode of proving the foreign law. As to which also see Hill v. Reardon, Jacob’s Rep. 89, 90; and as to foreign marriages, in general, see 1 Roper on Husband and Wife, 333; Lantour v. Teesdale, 8 Taunt. 830; Smith v. Maxwell, Ry. & Mood. Ni. Pri. Cas. 80; 1 Carr. & Payne, 271, S.C.; and see Butler v. Freeman, Ambl. 303. And indeed, a marriage had in a foreign country will not be valid here unless it were so by the lex loci. (Butler v. Freeman, Ambl. 303.) And, where the defendant gave the plaintiff, in a foreign country, where both were resident, a bill of exchange drawn by the defendant upon a person in England, which bill was afterwards protested here for non-acceptance, and the defendant afterwards, while still abroad, became bankrupt there, and obtained a certificate of discharge by the law of that state, it was held that such certificate was a bar to an action here upon an implied assumpsit to pay the bill in consequence of such non-acceptance in England, because such implied contract must be considered as made abroad. (Potter v. Brown, 5 East. 124.) So, in England, the rule is recognized, that the payment of a bill is to be made according to the law of the place where it was made payable, as best corresponding with the original intention of the parties. (Beawes, pl. 251; Marius, 102; Poth. pl. 155; 5 Barn. & Cres. 443; Chitty on Bills, 191.) So, the English courts, in some cases, besides giving effect to the contract itself, according to the foreign law, also give effect to such foreign law in some collateral respects, acknowledging that otherwise the greatest injustice might ensue. Thus, in France, a protest for non-payment is not to be made till the day after a bill falls due, whereas in England it must be made upon the very day; and it cannot be doubted that if the bill were payable in France the English courts must give effect to the French instead of the English law, (4 Pardessus, 227, semble.) So, where a wife was entitled to a share under the statute of distribution, and was resident in Prussia, and by the laws of which one moiety of the effects of the husband must come to her on his death, the court of equity here did not, as usual, require him to make any settlement upon his wife. (Sawyer v. Shute, 1 Anst. 63; and Campbell v. French, 3 Ves. 323.)
But as before observed, the English courts will not, as respects the form of the remedy, notice the foreign law; and therefore a foreigner may in England be arrested for a debt, or in equity upon a writ of ne exeat, in respect of which he could not, according to the foreign law, where it was contracted, have been imprisoned. (De la Vega v. Vianna, 1 Barn. & Adolph. 284; 10 Barn, & Cress. 903; Flack v. Holm, 1 Jac. & Walk. 405.) So, though according to the law of Holland, persons jointly concerned in trade could not use as partners, they might do so in England. (Shaw v. Harvey, Mood. & M. 226.) And, as regards the time for commencing suits on foreign contracts, the English courts, contrary to the practice in France, will only apply the English Statute of Limitations, and will not regard the foreign lex loci. (The British Linen Company v. Drummond. 10 Barn. & Cress. 903; 1 Barn. & Adolph. 285, 384; 1 Younge & Jerv. 376; (Nash v. Tupper, I Caine’s Rep. 402; Decouche v. Savetier, 3 Johns. Cha. Rep. 190; Le Roy v. Crowninshield, 2 Mason’s Rep. 151;) aliter in France, 4 Pardessus, 223.) But it must be observed, that, in the case of The British Linen Company v. Drummond, (10 Barn. & Cress. 903), the much more distinct French law in 1 Pardessus, 455, 4 id. 196, 209 to 211, 220 to 223, and 285, was not cited, and that Lord Tenterden doubted whether the decision in Delvalle v. The York Buildings Company was not the better law.
Again, in the English courts there is a rule of narrow petty policy not to protect the revenue laws of a foreign state, even at amity with this country, but even to encourage and give effect to the most dishonorable practices, however injurious to such independent state; so that British subjects are allowed to carry on smuggling transactions adverse to the interests of a neighboring country, provided they do not prejudice our own revenue. (Holman v. Johnson, Cowp. 343) — per Lord Mansfield, “no country ever takes notice of the revenue laws of another.” (See all the cases collected and observed upon in Chitty on Bills, 8th edit. 143, n.c.) And this to such a degree that a British subject has been allowed in the English courts to support an action against a purchaser of paper knowingly made by the plaintiff for the purpose of forging assignâts upon the same, to be exported to France, in order to commit frauds there on other persons. (Smith v. Marconnoy, 2 Peake’s Rep. 81, addenda; and Strongitharm v. Lukyn, 1 Esp. Rep. 389). Assuredly one state is bound to act towards another as neighbors should to each other; and should it be tolerated that the latter should encourage frauds of one upon the other? Express treaties sometimes expressly provide against the toleration of such practices. So, in some cases, the English courts will not only deny effect to a correct decision of a foreign court upon the lex loci applicable to the same transaction, but will actually adjudicate to the contrary. Thus, in a late case it was held in chancery, that a distinct holder might recover in an English court on a bill drawn in France on a French stamp, although, in consequence of it not being in the form required by the French Code, another holder had failed in an action which he brought upon it in a French court; and the vice-chancellor is reported to have been of opinion, “That the circumstance of the bills being drawn and accepted by the defendant in France, and of the plaintiff having received the same from the French drawer, and of the bills having been drawn in such a form in France that the holder could not recover on them in France, was no objection to his recovering on them in an English court.” (Wynne v. Jackson, 2 Russ. 352; but see observations in Wynne v. Cullender, 1 Russ. 293.)
In cases where the foreign law and rule of construction would prevail, care must be observed to establish it, and have it stated on the record, for otherwise the contract will be construed the same as an English contract; and therefore it was held that an instrument executed by foreigners in a foreign country, as in Spain, must, on demurrer, be construed by the same grammatical rules as English contracts, and according to the obvious import of its terms, unless there be an allegation in the bill in equity, setting it forth, and that, according to the law of the country in which it was executed, the true construction of it is different. (The King of Spain and Others v. Machado and Others, 4 Russ. 224.)
Where an English commission precedes a Scotch sequestration, all Scotch personal estate is liable to the commission, and not to the sequestration, (Ex parte Cridland, 3 Ves. &; B. 100; when otherwise. Ex parte Geddes, 1 Glyn & J. 414.)
Legacy in a foreign country, and coin, as sicca rupees, by a will in India, if paid by remittance to this country, the payment must be according to the current value of the rupee in India, without regard to the exchange or the expense of remittance; so, as to other countries. (Cockerell v. Barber, 16 Ves. 461.)
With respect to the proof of foreign law, it must in general be established as a fact, and the court cannot take notice of the same judicially. (Freemoult v. Dedire, 1 P. Wms. 431; Ex parte Cridland, 3 Ves. & B. 99; {Talbot v. Seeman, 1 Cranch. 1.} It is not absolutely necessary to prove it by the production of an examined copy; but a printed copy of the Cinq Codes of France, produced by the French vice-consul resident in London, purchased by him at a bookseller’s shop at Paris, was received as evidence of the law of France, upon which the Court in England would act in deciding upon the validity of a marriage in France between British subjects. (Lacon v. Higgins, 1 Dowl. & Ryl. Ni. Pri. Rep. 38; 3 Stark. 176, S.C.) And it has been supposed that the same point was decided in Sir Thomas Picton’s case, where the question arose as to the right of inflicting torture in the island of Trinidad; formerly under the dominion of Spain; and the attorney-general of the island was examined as a witness, and the court allowed him to refer to printed books purporting to contain the law of Spain; and Lord Ellenborough, C.J., expressed no doubt that such books were receivable as evidence of the law of Spain and Trinidad. (30 Howell’s State Trials, 514; but see 1 Dowl. & Ryl. Ni. Pri. Rep. 42, n. (a).)
In equity, it has been held that the foreign law must be verified by the affidavit of a professional person swearing positively, and not by the affidavit of another person not professionally acquainted with the law, and swearing only to information and belief. (Hill v. Reardon, Jacob, 89) The best evidence is an affidavit or evidence of the foreign consul, or a foreign advocate of experience, stating verbatim the terms of the foreign law, when it was a written edict, or in the nature of our statute law. (Flack v. Holm, 1 Jac. & Walk. 418.)
As respects the claims of a sovereign of a foreign independent state upon a subject of Great Britain, it seems clear that he stands in the same situation as a private subject of such foreign state. (Greig v. Somerville, 1 Russ. & M. 388, case of the emperor of Russia’s claim.) Lord Hawkesbury said, that a foreign power might legally apply to the courts of judicature, and might obtain redress, as for defamation or calumny (6 Russ. Mod. Europe, 20, ante, 143), excepting that, in respect of his dignity, he, like our king, is not to recover costs (ante, 154, Hullet v. King of Spain, 1 Dow. Rep. new ser. 177); and, if such sovereign has never been in England, the statute of limitations constitutes no bar; and in equity at any distance of time, however remote, whilst there is a fund in court, it will be decreed that the foreign sovereign shall be at liberty, by his ambassador, to go before the master and prove such debt due from an intestate’s estate as he might be able, though not so as to prejudice any previous distribution (id, ibid. cases first stated).
It has been recently decided, that a foreign sovereign has a right to sue in the English courts in equity as well as at law. (Hullett and Others v. King of Spain, 1 Dow. Rep. new ser. 169, and 2 Bligh. new ser. 31, in the House of Lords, on appeal from Court of Chancery.) {the Constitution of the United States gives jurisdiction to the courts of the United States where foreign states are parties. The King of Spain v. Oliver, 2 Wash. C.C. Rep. 429.}
If a foreign state sue in chancery, the bill must properly describe the plaintiff, so that he may, if thought fit, be served upon a cross bill. (The Columbian Government v. Rothschild, 1 Simons, 94, id. 68.) And the sovereign of a foreign state must either sue here in his own name or by his ambassador; and his subjects, when privately interested, must sue individually in their names, or in their defined political character; and an ambassador cannot sue in England as procurator general for all or any of the subjects of the foreign sovereign. (Spanish Ambassador v. Bingley, Hob. 113.)
By the maritime law materially affecting the intercourse of nations with each other, when damage has been occasioned to a ship by the equal fault of those managing one ship as the other, as, by running foul of each other, the owner of the damaged vessel is to receive half the amount of the damage sustained, (Hay v. Le New, 2 Shaw’s Rep. 401 to 405.)
3. The Taurians.
4. See Grotius de Jure Belli et Pacis, lib. ii. cap. xx, § xl. n. 7.
5. But, in ancient times, the Chancellor had jurisdiction, by writ of ne exeat, to restrain a foreigner or a British subject from going abroad and communicating intelligence to an enemy, or otherwise injurious to this state, and the Court of Chancery, from more to more, have assumed and established a jurisdiction over foreigners in favor of a private subject; so that, if a foreigner be here, and be about to depart, he may be restrained and compelled to give security for satisfying any equitable claim, or even a demand at law in nature of an account, either upon a contract or transaction entered into in the foreign country, and although by the lex loci the foreigner could not have been arrested, (Flack v. Holm, 1 Jac. & W. 405; but see De Carriere v. Columne. 4 Ves. 577); and it is now settled, that at law, a foreigner may be arrested in this country for a foreign debt, though he could not have been imprisoned in his own country. (De la Vega v. Vianna, 1 Barn. & Adolph, 284.)
6. But see ante, 105, and note.
7. In his Republic, book i. chap. vi.
8. But specific performance of an agreement relating to the boundaries of two provinces in America, may be enforced by bill in chancery in England, if the parties be within the jurisdiction Penn v. Baltimore, 1 Ves. sen, 444.)
9. Ante, 167, and note; and see Vattel cited, Anstruther v. Chalmer, 2 Sim. Rep. 4; but see Trotter v. Trotter, 3 Wils. & Shaw. 407, 414, and ante 167, in notes, and see Anon. 9 Mod. 66; Bowaman v. Reeve. Pre. Ch. 577, ante. 178, note.
10. As to alienage in general, and the jealous provisions in England against foreigners, see 1 Chittys Commercial Law, 108 to 169. See exceptions in treaty with America, and decisions thereon with respect to Americans who were seised of lands in Great Britain, being allowed to retain the same, notwithstanding a subsequent war — Sutton v. Sutton, 1 Russ. & Myl. Rep. 663.
11. De Jure Belli et Pacis, lib. ii. cap. vi. § 14.
12. Digest, lib. xlix. til, x7. De Captivis, et postlimin.
13. His Republic, book 1, chap. vi.
14. By the municipal law of Great Britain, no alien can inherit or hold real property. Thus, Doe v. Acklam, 2 Bar. & Cress. 799, establishes that a person born in the United states, since 1783, when the two countries were separated, cannot inherit lands in England; and the same point was afterwards decided in Doe d. Auchmuty v. Mulcaster, 5 Barn. & Cres. 771. To this rule some exemptions have been occasionally introduced by express treaty intended to be permanent, as regards such exception, and strengthened by statute; as under the treaty of 1794, between Great Britain and America, and the act 37 Geo. III. c. 97, under which American citizens who held lands in Great Britain, on 28 Oct. 1795, and their heirs and assigns, are at all times to be considered, so far as regards those lands, not as aliens, but as native subjects of Great Britain, and this, notwithstanding a subsequent war and the adherence of the citizen to America whilst at war with Great Britain, Sutton v. Sutton, 1 Russ. & M. 663), and the consequent conflictlon of duties as regards the American citizen seised of such estate. But, as alienage subjects no party to any indictment or penalty, an alien must answer a bill of discovery filed to ascertain whether he has purchased land. (Duplesses v. Attorney-General, 1 Bro. P.C. 415; 2 Ves. 286.)
15. The validity of a marriage celebrated in a foreign country must be determined in an English court by the lex loci where the marriage was solemnized; and, therefore, on a plea of coverture, where the parties, who were British subjects, were married in France, it was held, that, if the marriage would not be valid in that country, according to the municipal law there, it would not be valid in this country. It was even further held that a printed copy of the “Cinq Codes“; of France, produced by the French vice-consul resident in London, purchased by him at a bookseller’s shop in Paris, was property received as evidence of the law of France upon which the court would act; and Abbott, C.J., said: The general rule certainly is, that the written law of a foreign country must be proved by an examined copy thereof before it can be acted upon in an English court; but, according to my recollection, printed books upon the subject of the law of Spain were referred to and acted upon in argument in Sir Thomas Picton’s case as evidence of the law of that country, and, therefore, I shall act upon that authority, and receive the printed copy now produced as evidence of the law of France. (Lacon v. Higgins, 1 Dowling & Ryland, Ni. Pri. Cases, 36; 3 Stark. Rep. 176, S.C.; Butler v. Freeman, Ambl. 303.)