ries of our subject, though many authors go into them at length under the head of what is called Private International Law.1 We will briefly indicate the chief matters to which they apply; and it will be evident from our enumeration that the domiciled alien is to a very large extent under the jurisdiction of the country in which he resides.

The lex domicilii determines all matters of personal status which are not purely political, it regulates the succession to personal property in cases of intestacy, it settles the validity of any will relating to personalty, and it decides upon capacity to enter into ordinary contracts, and even upon capacity to marry in England, the United States, and Teutonic countries generally.2 The law of France, however, regards this last as part of the status of a French citizen, and considers it to be attached to him wherever he may go, as long as he retains his French citizenship. Marriages contracted by Frenchmen abroad must therefore be entered into with all the forms required by the law of France, if they are to be valid in France.3

For testamentary and most other purposes a man can have but one domicil; but for commercial purposes and for purposes of belligerent capture he may have more than one, since he may reside in one country and have a house of trade in another, or be a partner in several firms situated in different countries. When a foreigner is domiciled in a belligerent country his property therein is subject to the risks of war, but he cannot be compelled to serve in the army of the state in which he resides. The question whether he may be forcibly enrolled in the Militia or National Guard is more doubtful. In the American Civil War Great Britain seemed content that her subjects domiciled in the territory of the Republic should serve in the local militia; and in one case, that of Scott, she declined to

1 See § 6.

2 Bar, Private International Law, §§ 90 et seq.

3 Wheaton, International Law (Dana's ed.), 151 and note.

interfere to prevent an enrolment in the fighting forces. But Scott had declared his intention of becoming a naturalized American subject, and of adhering to the United States if war had broken out at the time of the Trent affair; 1 and probably it was thought that a citizen whose allegiance sat so lightly upon him had little claim for consideration from his native state. Certain it is that a vigorous protest was addressed to the Government of the Southern Confederacy against its practice of regarding British subjects domiciled within its territory as liable to conscription. There is a clear distinction between the maintenance of social order, which may well be required of every one who lives under the protection of the local laws, and the furtherance of political ends, which ought only to be asked of those who are members of the body politic. The recognition of this principle would lead in practice to the rule that foreigners resident in the country might be required to serve in any local force raised for defending life and property against the enemies of society, but could not be compelled to serve in the army or militia. Any state might without offence declare that it would insist upon the application of this rule to its subjects domiciled abroad. There are in fact a considerable number of treaties in existence whereby the contracting powers provide that their subjects domiciled in each other's territory shall not be called upon for war-services. The Commercial Treaty of 1871 between the United States and Italy contains stipulations to that effect, and, among the leading powers of Europe, Great Britain, France and Russia have been parties to such agreements. It is hardly possible to say that the rule in question is part of the common law of nations; but it seems in a fair way to become so, since opinion and practice are turning strongly in its favor. An attempt made by Nicaragua in October, 1 Halleck, International Law (Baker's ed.), I., 361, note.

2 Hall, International Law, § 61.

8 Treaties of the United States, p. 582.

1893, to amend its Constitution so as to make foreigners liable to extraordinary burdens, and even military service, produced immediate action on the part of the resident Minister of the United States and was abandoned in consequence.1

Travellers passing through its territory.

§ 118.

Aliens, even though they are not domiciled in a state, may come under its laws and jurisdiction to a certain limited extent when within it as Travellers passing through its Territory. Such persons are under its criminal jurisdiction for breaches of the peace and other offences against person and property committed within its dominions; and any contracts they made could be enforced by process directed against their persons, as well as against any property they might possess in the state in question. But their political rights could be in no way affected by their temporary sojourn within the borders of a foreign state.

§ 119.

Things as well as persons are under the jurisdiction of the state within whose territory they are found. The most important of them is Real Property, which may

Rules relating to various kinds of things within the territory.

be roughly said to consist of houses and lands, and immovables generally. For all purposes of testamentary and intestate succession, of contracts and of legal proceedings, the law of the country where it is situated, the lex loci rei sita, applies to it.2 We have seen that the rule as to Personal Property, or movables, is that the lex domicilii of the owner prevails; but in the vast majority of cases the lex domicilii is also the law of the country in which the property is situated. It does, however, sometimes happen that a man owns personal property in one

1 The South African Republic was in the habit of "commandeering" for military service the Outlanders, to whom it denied the franchise. This was one of the grievances leading to the Boer war of 1899-1900.

2 Phillimore, Commentaries, Vol. IV., Ch. xxviii.; Bar, Private International Law, § 220.

country while he is domiciled in another. In such cases the law of the latter prevails. But this rule is not entirely without qualification. It seems, for instance, that, if the owner dies, the tribunals of the state where the property is situated will assist their own citizens to recover debts, and that stocks must be transferred according to the lex sitûs.1 There is one sort of movable of so important and exceptional a kind, that International Law sets it as it were in a class by itself, and applies special rules to it. We refer to ships. A state's authority over its own ships, both public and private, in its waters is absolute. Its jurisdiction extends to their crews also. Those of public vessels, being in the service of the state, are, of course, wholly and entirely under its control; those of merchant vessels come within the territorial jurisdiction, even as regards seamen of foreign nationality. Foreign merchant vessels within the ports and territorial waters of a state are subject to the local law and the local jurisdiction. By coming within the territorial waters of a friendly power they put themselves for the time being under the authority of that power. All criminal acts done on board them are justiciable by its tribunals, the ministers of its justice have full power to enter them and make arrests, and the crews are subject to the local law when on board their vessels as well as when on shore. This proposition follows necessarily from the conception of territorial sovereignty, as was clearly seen by Mr. Marcy when, as American Secretary of State in 1855, he wrote to Mr. Clay, "As a general rule the jurisdiction of a state is exclusive and absolute within its own territories, of which harbors and territorial waters are as clearly a part as the land."2 France, however, draws a distinction between two classes of acts done on board a foreign merchant ship in one of her ports. If the act concerns members of the crew only and does not 1 Wheaton, International Law, § 136; Phillimore, Commentaries, Vol. IV., Ch. xxviii.

2 Wharton, International Law of the United States, § 35 a.

take effect outside the vessel, she exercises no jurisdiction over it. If it concerns members of the crew and other individuals, or takes effect outside the vessel to the danger of the peace or health of the port, she will take cognizance of it. It is sometimes claimed that this rule is International Law; but it is not based upon general or long-continued usage, nor is it a logical deduction from any universally admitted principle. On the contrary it restricts in some measure the application of the fundamental principle of territorial sovereignty. Yet it has many recommendations. It limits the sphere of local authority to the necessities of local security, and leaves the interior discipline and economy of the vessel to be regulated by the laws of its own country, thus giving effect to the jurisdiction of each state in the sphere which seems naturally and properly to belong to it. The French rule or a modification of it has been received with much favor in recent times. Some states have refused to exercise authority over foreign merchantmen in their ports in cases where nothing beyond the internal economy of the vessel was concerned, and many treaties have been negotiated in which the contracting parties bind themselves not to interfere on board one another's vessels in their ports, unless the peace or safety of the neighborhood is threatened or some person other than a member of the crew is concerned. Thus in 1866 the United States refused to compel the seamen on board a British merchant ship in American territorial waters to perform their duties as mariners,1 and in 1870 they entered into a Consular Convention with Austria, followed the next year by one with the German Empire, in each of which was embodied the rule above described, with the further proviso that "Consuls, Vice-Consuls or Consular Agents, shall have exclusive charge of the internal order of the merchant vessels of their nation." 2 There is no difficulty in carrying out these provisions; nor does a state leave the door open 1 Wharton, International Law of the United States, § 35. 2 Treaties of the United States, pp. 34, 366, 367.