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give the highest possible sanction to these rules within our jurisdiction, we have seen that Congress has made it highly penal for any person within our jurisdiction to set on foot any military expedition, or enlist troops or seamen, or fit out ships, or augment the force of foreign ships, in violation of the obligations of neutrality.

In the next place, neutrality is to be observed and respected upon the ocean. On the one hand, the neutral is not to be disturbed in the prosecution of his ordinary commerce as well with the belligerents as with other nations; and on the other hand, he is not to favor either of the belligerents in his hostile operations at the expense of the other. It is a general rule that neutral property is exempt from seizure, even when found in hostile ships; and also that neutral ships carrying hostile property are themselves exempt from seizure, though the hostile property in them is not. Efforts have been made to establish the maxim that free ships make free goods; or in other words, to render the neutral flag a protection even to hostile property. This was the object of the celebrated armed neutrality. But there has been no general acquiescence in this maxim; and the rule still is, that hostile property in neutral ships, out of neutral jurisdiction, is liable to capture. To these general rights of neutrals there are, however, two exceptions, one relating to contraband goods, and the other to blockaded ports.

Without attempting a detailed description of the articles which are held to be contraband of war, it is sufficient here to say that they include not only implements and munitions of war, but all other articles which are directly auxiliary to hostile operations. Provisions are not generally contraband, but may become so from the special circumstances under which they are supplied. Sometimes treaties stipulate what shall, and what shall not, be contraband as between the contracting parties. But the question of contraband or not, being once settled, the rule is universal that neutrals may not furnish contraband articles to either of the belligerents, under the penalty of confiscation not only of the contraband articles themselves, but also of the whole cargo of which they form a part; and formerly the ship itself suffered the same fate.

The rights of blockade and siege are among those well settled belligerent rights, which neutrals are bound to respect. Each nation at war has a right to blockade the ports, or besiege the fortifications of the other. But it is not sufficient simply to declare a port under blockade or a place under siege. There must be an actual force on the spot to constitute a blockade or siege; for otherwise a mere proclamation might shut up the commerce of the world. But when a blockade or siege actually exists, neutrals cannot knowingly maintain any commerce whatever with the places thus invested, under the penalty of confiscation of the ship destined to or coming from such places; and also of the cargo, unless it can be shown that its owners had no concern in the matter. This rule is vindicated upon the ground that blockades and

sieges are legitimate measures of war, which would be rendered of no avail if neutrals were permitted to relieve against them.

There is still a third exception to neutral intercourse, analogous to the preceding, which is, that neutrals may not be concerned in bearing hostile despatches, under the penalty of confiscation of the vehicle, and of the cargo also, unless it can be shown that its owners had no knowledge of the offence.

Such being the rights and obligations of neutrals, it is incumbent on them to see that their ships are furnished with the documents requisite to sustain their neutral character. Mere custom-house documents, as we have seen, are not sufficient for this purpose, not being known to the law of nations. The only evidence of national character is a passport or sea-letter, duly authenticated. But still the question arises, how are belligerents to know what ships are in fact neutral? The answer is that they have the right of search, for the purpose of ascertaining. However inconvenient and vexatious the exercise of this right may be to neutrals, they are bound to submit to it; and resistance may involve a confiscation of the ship and cargo. No other rule could prevent the neutral flag from being made a pretext for violating the rights of belligerents.

LECTURE XLII.

PRIVATE INTERNATIONAL LAW. (a)

§ 254. Preliminary Considerations. This branch of international law is usually discussed under the title of conflict of laws, its object being to determine in what cases of conflict between the laws of different nations the domestic law shall give place to the foreign law. But as questions of this kind chiefly concern the private relations of individuals, depending upon the law of different nations, and not the political relations existing between those nations, I prefer the title of private international law, in contradistinction to that of public international law, which has just been considered. We have already seen that each nation of right possesses an exclusive sovereignty and jurisdiction within its own territory, but none whatever beyond it, except upon the ocean. Hence it follows that the laws of one nation can have no intrinsic authority in any other nation. Whenever, therefore, any nation, within its own limits, gives effect to the laws of another nation, it is to be regarded as a matter of concession. The disposition to

(a) On the subject of this lecture, I need make no other reference than to Story's Commentaries on the Conflict of Laws, a lucid and comprehensive treatise, which scarcely leaves anything to be desired in this department of jurisprudence.

But

make such concession is denominated comity; and hence we say that comity is the foundation of private international law. comity, which is but another name for the spirit of accommodation, if left to the control of an arbitrary or capricious will, would be but a dubious and unstable guide. To render it a safe criterion of rights, it must be exercised according to established rules; and hence the original suggestions of comity, founded on a sense of mutual convenience, have been clothed with the sanctions of positive law. Accordingly, it is no longer optional with the tribunals of one nation to recognize, or not, the laws of another, as the disposition of the moment may incline them; but the question is to be settled, as in all other cases, either by legislative enactments or by judicial precedents. In one or the other of these ways each nation prescribes for itself the limits of its comity; and hence we may naturally look for more diversity in this branch of law than in the public law of nations. The prevailing practice has formerly been to apply the rule of reciprocity; that is, to give effect to the law of other nations only when they, under similar circumstances, give effect to our law. But this rule is gradually giving way to the higher considerations of abstract justice and the universal welfare; and just in proportion as these exalted motives shall operate upon legislators and judges throughout the world, will this branch of law approximate to general uniformity. In the brief outline which I propose to exhibit, I shall confine myself to the doctrines held in this country, and to a very general view even of them. I shall arrange my remarks under four general heads namely, persons, property, crimes, and procedure.

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§ 255. As to the Law of Persons. In the view I am now taking, the law which determines the capacity, state, and condition of persons, is called personal law, as to which there is no universal rule admitted by all nations. But the rule prevailing in this country is, that as to acts done, rights acquired, and obligations incurred, in the place of domicile, the law of such domicile will govern everywhere; but, otherwise, the law of the place of the transaction will govern. This general rule will determine the capacities and incapacities incident to infancy, coverture, idiocy, and lunacy, and all other personal abilities and disabilities, founded in the law of nature, and not in derogation of common right. But foreign nations will not regard disqualifications created by penal laws, or laws authorizing slavery, unless there be some express compact on the subject, like that existing between the States of this Union. Moreover, each nation may make an exception to the above rule with respect to its own subjects; for as to them there can be no question of comity, and, therefore, they will not be permitted to evade their own law, by resorting to countries where a different law prevails. Such, then, being the general rule, I shall first consider what constitutes domicile, and then apply the rule to the various classes of persons heretofore mentioned.

1. Domicile. In the common acceptation, domicile means the

place where a person resides; but in a legal sense domicile means the place where a person has his fixed and permanent home or establishment. Two things must concur to constitute domicile, namely, actual residence, and the intention of remaining; or, in case of temporary absence, the intention of returning; and as there must be this concurrence of fact and intention, the question of domicile is often a difficult one. The most general rules on the subject are these: the place where one is born is his domicile, if it was the domicile of his parents; if not, their domicile is his during minority, unless changed by the parents. A married woman has the domicile of her husband. Residence is primâ facie evidence of domicile; but no length of time is essential; and, therefore, if an adult person removes to a new residence, with the intention of remaining, it becomes his domicile immediately. The place where the family of a married man reside is considered his domicile, though he may do business in another place; and if the family have different places of residence for different periods of the year, that place will be the domicile in which the head of the family exercises the rights of citizenship; but the domicile of a single man is usually the place where he transacts his permanent business. Every person must have a domicile somewhere; and, therefore, when a domicile has once been acquired, it continues until a new one is acquired. These are the leading rules of local domicile, and they apply, for the most part, to national domicile. When a person has acquired a foreign domicile, and abandons it to return to his native domicile, the latter is reacquired the moment the former is left. Diplomatic agents do not acquire a foreign domicile by residence abroad, but consuls and commercial agents generally do. It will thus be seen that domicile and citizenship have no necessary connection. Our citizens may have their domicile abroad; and aliens may have their domicile here.

2. Corporations. The general rule is, that the existence of foreign corporations is recognized for all purposes and in all respects, except those specially prohibited by the domestic law. Subject to this exception they may make contracts, sue and be sued, establish agencies, and do any other acts to which they would be competent in the place of their domicile. They must dwell in the place of their creation, and cannot migrate elsewhere; but this does not hinder their rights from being recognized and protected elsewhere. (a)

3. Husband and Wife. The general rule is, that the validity of a marriage depends upon the law of the place where it is celebrated. If valid there, it is valid everywhere; and if invalid there, it is invalid everywhere. The reason of this rule is found in the disas trous consequences which would follow from any other doctrine; and so strong is this reason, that the rule prevails even when persons have gone to a foreign country to marry, for the express purpose of evading the domestic law. The exceptions are with respect

(a) This subject is very fully discussed in the case of the Bank of Augusta v. Earle, 13 Peters, 519. See also Day v. Newark Co., Blatchford, 628.

to incestuous marriages and polygamy; which though lawful where they take place are not recognized elsewhere. Some nations also expressly prohibit their own subjects from marrying anywhere unless according to their own laws, and, therefore, will not recognize other marriages. And the necessity of the case sometimes requires a resort to the law of the domicile, for want of a local law suited to the condition of the parties. With respect to the property acquired by marriage, the rule, so far as any is settled, seems to be this. When there is no change of domicile, the law of the place of the marriage will determine the rights of the parties as to personalty everywhere; but their rights as to realty will depend upon the law of the place where it is situated. When there is a change of domicile after marriage, the law of the new domicile will govern future acquired personalty everywhere, but realty will still depend upon the law of its place. In either case, however, if there be a special contract on the subject of property, that contract will everywhere govern personalty, and to some extent realty. Finally, when parties marry in one place with the intention of immediately settling in another, the law of the latter will govern their rights, because they are presumed to marry with that understanding. As to divorces, the rule is, that a divorce lawfully obtained, in the place where the parties were married and had their domicile, will be valid everywhere. It has also been held in this country, that if the parties have changed their domicile after marriage, a divorce granted in their new domicile for a cause occurring there is valid everywhere, even in States where that cause would not have authorized a divorce. But when a party goes to another State for the express purpose of procuring a divorce, which he could not procure at home, such divorce, being in fraud of the law of the domicile, will not be recognized there. Whether it would be recognized elsewhere, is an unsettled question. It is also held in this country, that in determining what cause shall be sufficient for a divorce, the law of the forum and not of the marriage is to govern; and that one State will not grant a divorce for a cause which occurred in another, unless there be express legislation to that effect, as is the case in this State.

4. Parent and Child. The only important question under this head is that of legitimacy, which is generally determined by the law of the place of the marriage. If by that law the issue be legitimate, they will be held legitimate everywhere else, at least with respect to heirship. But the converse is not always true. The law of Ohio, for example, makes children legitimate here, who would not be so by the law of the place of the marriage.

5. Guardian and Ward. The general rule is, that the rights and powers of guardians are strictly local, and they can exercise no power over the persons or property of their wards, beyond the jurisdiction appointing them, and to which they are amenable. Our statute makes an exception with respect to the real estate of

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