§ 9. The rules of international and municipal law, with respect to foreigners holding real estate, are less liberal and just than with respect to their personal property. It seems to be the universal rule ef civilized society, that when the owner of property dies intestate and leaves no heirs, it should vest in the public, and be at the disposal of the government. Where, therefore, the deceased leaves no heirs capable of succeeding to his estate, it vests in the state. According to the English law, escheat denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency, in which case the land naturally results back, by a kind of reversion, to the original grantor, or lord of the fee. But where there are no feudal tenures, and no private person to succeed to to the inheritance by escheat, the state steps in, in the place of the feudal lord, by virtue of its sovereignty, as the presumed original proprietor of all the lands within its jurisdiction. The principle is certainly a just one, that, if the ownership of property becomes vacant, the right should subside into the whole community, in whom it was supposed to be originally vested, when society first assumed the elements of order and subordination. But the rules of English law, with respect to the rights of alien heirs to inherit property, are so unjust and illiberal in their nature and effects, that they have been modified and limited in most of the states of the American Union, by decisions of courts and statutary dispositions. The American Union, as such, has no law of succession, of inheritance, of descent, of filiation, or of tenure of land, whether in the case of citizens of the United States or of foreigners. Relationship, inheritance, testaments, successions, tenure of estates, real and personal, all these are questions of the local law of the individual states. But in their treaties with foreign countries, the United States have stipulated against the application of the right of escheat, or the droit d'aubaine, to aliens claiming real estate by descent in the United States, and that the descent should be the same as if such foreigner were not disqualified by alienage. Such treaties are in accordance with the more liberal spirit of the age, and with the present condition of public law in Europe. But it has been contended by some,

that the federal government has no power, under the constitution, to abrogate by treaty an incompatible law of either of the states, and that the state laws must control, in such matters, notwithstanding the provisions of treaties. But the weight of authority is opposed to this view, and the courts have generally held that such stipulations of treaties are within the constitutional powers of the Union. (Bouvier, Law Dictionary, verb. Escheat; Kent, Com. on Am. Law., vol. 4. p. 420; Blackstone, Commentaries, vol 2, p. 244; Cushing, Opinions U. S. Attorney General, vol. 8, p. 411; Merlin, Repertoire, verb. Aubaine; Fairfax's Lessee v. Hunter's Lessee, 7 Cranch Rep., p. 627; Ware v. Hilton, 3 Dallas Rep., p. 242; Chirac v. Chirac, 2 Wheat. Rep., p. 259; Orr v. Hodgson, 4 Wheat. Rep., p. 453; The Society, etc. v. New Haven, 8 Wheat. Rep., p. 464; Hughes v. Edwards, 9 Wheat. Rep., p. 489; Banks v. Carneal, 10 Wheat. Rep., p 181; Henks v. Dupont, 3 Peters Rep., p. 242; The People v. Gerke, 5 Cal. Rep., p, 381; U. S. Statutes at Large, Art. 11, Treaty with France, 1778, vol. 8, p. 18; Id., Art. 7, Convention with France, 1800, vol. 8, p. 182; Id., Art. 6, Treaty with Netherlands, 1782, vol. 8, p. 36; Id., Art. 14, Treaty with Prussia, 1828, vol. 8, 382; Jefferson, Works of, vol 3, p. 365.)

§ 10. By the laws of some countries, marriage is considered in no other light than as a civil contract, while in others, it becomes a religious as well a natural or civil contract; "for it is a great mistake," says Story, "to suppose that because it is the one, therefore it may not likewise be the other." Marriage is a personal consensual contract, but is a contract sui generis, and differs from other contracts in this, that the rights and obligations, or duties arising from it, are not left entirely to be regulated by the agreement of parties, but are, to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will; and, unlike other contracts, it cannot, in general, be dissolved by mutual consent. It is, therefore, evident that the rules of law applicable to other contracts, cannot always be resorted to in expounding and enforcing the marriage contract. It may, however, be laid down as a general princi ple, that so far as marriage is a consensual personal contract, its validity must be determined according to the lex loci; if

valid in the place where it is celebrated, it is valid everywhere, and if invalid there, it is equally invalid everywhere. But there are certain exceptions to this rule, the most prominent of which are, those of polygamy and incest, (which are prohibited by the laws of every civilized country,) and to these some writers add those marriages made by a fraudulent evasion of the laws of the state to which the parties belong. With respect to the rights, duties, and obligations arising from the marriage relation, we must, in many cases, look to the law of the domicil. It is, therefore, obvious that the rules of international jurisprudence, with respect to this contract, are somewhat variable, according to the peculiar circumstances of each case. Moreover, on some questions arising out of this relation, no rule can be said to be yet established, there being a direct conflict in the judicial decisions of different states, and in the opinions of the most eminent of text-writers. After a full survey of the writings and cases, foreign and domestic, on this subject, Story lays down the following general rules, as the result of his examination; 1st, Where there is a marriage in a foreign country, and an express nuptial contract, with respect to personal property, it will be sustained everywhere, unless it contravenes some positive rule of law or policy; but, as to real property, it will be made subservient to the lex rei sitae; 2d, Where such a contract applies to personal property, and there is afterward a change of matrimonial domicil, the law of actual domicil will govern as to future acquisitions; 3d, If there be no such nuptial contract, the matrimonial domicil governs all the personal property everywhere, but not the real property; 4th, The matrimonial domicil governs to all acquisitions, present and future, if there be no change of domicil. If there be, then the law of the actual domicil will govern as to future acquisitions, and the law rei sitae, as to real property. (Story, Conflict of Laws, §§ 108-199; Kent, Com. on Am. Law, vol. 2, p. 63; Wheaton, Elem. Int. Law, pt. 2, ch. 2, §7; Huberus, Praelect., lib. 1, tit. 3, § 8; Massé, Droit Commercial, tome 2, §§ 63, 332, et seq.; Bowyer, Universal Public Law, ch. 16; Westlake, Private Int. Law, ch. 11.)

§ 11. The same remarks will apply to international jurisprudence on the subject of divorce, or the dissolution of the

matrimonial state, and a release of the contracting parties from all future obligation. "It is deemed by all modern nations to be within the competency of legislation," says Story, "to provide for such a dissolution and release, in some form, and for some cause. And there is no doubt that a divorce, regularly obtained, according to the jurisprudence of the country where the marriage was celebrated, and where the parties are domiciled, will be held a complete dissolution of the matrimonial contract in every other country. I say, where the marriage is celebrated, and where the parties are domiciled, for both ingredients are, or may be, material, and the presence of one, and the absence of the other, may change the legal predicament of the case. The real difficulty is, to lay down appropriate principles to govern cases where the marriage is celebrated in one case, and the parties are domiciled in another; where there is a change of domicil by one party, without a similar change by the other; where, by the law of the place of celebration, the marriage is indissoluble, or dissoluble only under peculiar circumstances, and by the law of another, it is dissoluble for various causes, and even at the pleasure of the parties." On this subject, there is some conflict of authorities, but it is not our intention to examine these discussions. (Story, Conflict of Laws, §§ 200–230; Kent, Com. on Am. Law, vol. 2, p. 62; Ferguson, On Marriage and Divorce, vol. 1, § 18; Erskine, Institutes, b. 1, tit. 6, §§ 38, 43; Wheaton, Elem. Int. Law, pt. 2, ch. 2, § 21; Connelly v. Connelly, 2 English Law and Eq. Rep., p. 570; Dorsey v. Dorsey, 1 Chandler's Law Reporter, p. 287; Bowyer, Universal Public Law, ch. 16; Westlake, Private Int. Law, ch. 11; Gardner, Institutes, pp. 201, et seq.)

§ 12. The laws of trade and navigation of a state are binding upon its citizens wherever they may be, but they cannot affect foreigners beyond its territorial limits. Thus, offenses against the laws of a state, regulating or prohibiting any particular trade, if committed by foreigners within the territorial jurisdiction of another state, are not punishable by the tribunals of the state whose laws they have violated; but if committed by its citizens, they are so punishable, no matter where committed, whether within its own limits, on the high seas, or in a foreign country. A distinction, however, must

be made between mere commercial regulations permitting or prohibiting a certain trade, and statutes creating a criminal offense, with personal penalties expressly applicable to all the citizens of the state. The commercial domicil of a party may sometimes exempt him from the operation of the laws of trade of his own country, but whilst his former allegiance continues, he is liable to incur the penalties of a criminal offense against his own country, which penalties may be enforced whenever he comes within the reach of its municipal laws. (Wheaton, Elem. Int. Law, pt. 2, ch. 2, § 13; Foelix, Droit Int. Privé, §§ 510-532; American Jurist, vol. 22, pp. 381-386; Massé, Droit Commercial, tome 2, §§ 38, 376, et seq.; Bello, Derecho Internacional, pt. 1, cap. 4, §§ 5, 6.)

§ 13 It is laid down, as a general principle of international jurisprudence, that a discharge of a contract by the law of the place where it is made, is a discharge everywhere, no matter whether made between a citizen and a foreigner, or between foreigners. But in the application of this rule, it is necessary to distinguish between cases where, by the lex loci, there is a virtual or direct extinguishment of the debt itself, and where there is only a partial extinguishment of the remedy. By the bankrupt and insolvent laws of some states, there is an absolute discharge from all rights and remedies of the creditors, while, in other states, these laws fall far short of this extent and operation, neither the obligation nor the remedy being entirely extinguished. So far as the bankrupt code merely forms a part of the remedy for a breach of the contract, it belongs to the lex fori, which cannot operate extraterritorially within the jurisdiction of any other state having the exclusive right of regulating the proceedings of its own courts of justice. But where the examination, instead of being merely contingent upon the failure to perform the obligation, through insolvency, enters into and forms an essential ingredient of the original contract itself, by the law of the country where it is made, it cannot be enforced in any other state, by the prohibited means. This has led to various refinements and distinctions in the applitation of the principles of international jurisprudence to the law of bankruptcy, which it is not our object to discuss. (Lord Stair's Institutions, vol. 1, p. 4, note, ed. 1832; Wheaton, Elem. Int. Law, pt. 2,