•,".'. f "-"/'- - KF %5l 637 (JornjU IGaui #rijool Etbrarg Cornell University Library JX 237.G22 Institutes of international law, public 3 1924 017 509 500 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017509500 INSTITUTES INTERNATIONAL LAW, PUBLIC AND PRIVATE, AS SETTLED BY THE SUPREME COURT OF THE UNITED STATES, AND BY OUR REPUBLIC. WITH REFERENCES TO JUDICIAL DECISIONS. BY DANIEL .GARDNER, Esq., COUNSELLOB AT LAW, OF THE NEW-YpW BAB. fw-i0fl: JOHN S. VOORHIES, LAW BOOKSELLER AND PUBLISHER, No. 20 Nassau Street. 1860. Entered according to act of Congress, in the year one thousand eight hundred and flf ty-nine, by DANIEL GAEDNEE AND JOHN B. VOOEHIES, in the Clerk's Office of the District Court of the Southern District of New- York. Jons W. Amemah, Law Printer, 47 Cedar-Btreet, New-York. CONTENTS. CHAPTER I. Nations, National Immunity, Sovereignty and Executive Organs. Nations, what and how affected by changes, p. 1, 2, 3, 4, 5. Actual existence of a nation, a fact, 2. Nations may lose nationality, how, 2, 3, 4. Confederation and Constitution of United States and their effect, 2, 3, 83. New Btates, how added, 3. Equality of nations and of our states, 4, 32. National immunity and independence, 5, 6. Unauthorized interventions, 6 — 10. Louis Philippe's violated pledge to Lafayette, 7, 8. Royal Crusade, Holy Alliance, 8, 9. American right of self defense up to Gulf Stream, as to Cuba, Mexico, ]?J EMINENT DOMAIN. 71 This case proceeds on the principle that a State legislature, as sovereign, can, through the taxing power, compel cities, towns, counties and villages to indemnify their public officers in such cases as the legislature shall deem just. If this were not so, in many instances public officers would be subject to great injustice. A State may, by a statute, exempt a corporation, in consideration of public services, from taxation, or limit it. (18 How. 331. 16 lb. 369.) In the formation of new States, Congress, By the acts authorizing or ratifying the State constitutions, and the States, in their conventions and by their laws, have de- clared certain fundamental principles which seem declara- tory of American public law ; and among them, that the great lakes and navigable rivers and carrying places are free, without toll, to all American citizens ; (1 U. S. St. L. 50, 51, n. ;) that the property of the United States is exempt from State taxation. (Rev. St. of Michigan, 76, § 4. St. of Missouri, 529, §2. 1 Laws Missouri, 37, § 4. Rev. St. Wisconsin, 22, 792.) Several of the old States have, by declaratory acts, affirmed the same rule of law. (1 F. T. Rev. St. 2d ed. 379, § 4. Pub. Laws of Rhode Island, 431, § 28. Mass. Rev. St. of 1836, p. 75, § 5.) This rule of our public law seems to exempt from taxation by a State the property of the United States. But a judicial difference of opinion exists on this point. What can be more unseemly than a State tax on a United States arsenal, mint, custom-house, or other national property held in trust for the whole Union? " (Acts Gong. 1850, p. 449, § 7.) Such a State law seems incompatible with the paramount authority and duty of the national government, as well as with the supremacy of the Constitution and of acts of Congress. The general, practice of the States, with a few exceptions, is in con- formity to the above doctrines. 72 EMINENT DOMAIN. As the national government, to the extent of its powers and duties, is supreme, and as all State law, so far as it is in conflict with them, is superseded by them, we cannot see how, upon the principles of our system, a State right of taxation or of eminent domain, can be legally exerted upon any property of the United States used as a means of executing its national powers. (9 Monthly L. Rep. N. S. by Lowell, 261, 262.) . The general practice of the government has been in accordance with our views. The Western Rail-Road of Massachusetts was made through the lands of the United States, at Springfield, by virtue of an act of Congress and under the direction of the Secretary at War, and on condition that it should revert to the Union on discontin- uance of the rail-road. (5 U. S. St. L. 17.) Acts of Congress have been applied for, and have been passed, granting a right of way over United States lands for roads and rail-roads in many States. (5 lb. 63, 65, 66, 145, 146, 196, 197. 6 lb. 315.) For State purposes, as sites for State legislative halls and county court-houses, acts of Congress have been applied for and passed. (6 lb. 846, 847. 4 lb. 50.) In the case of the United States vs. Chicago, (7 How. 185, 194, 195,) the Supreme Court of the Union decided that lands of the national government, held appurtenant to an old United States fort, could not be taken for streets by virtue of a State right of eminent domain. Mr. Justice Woodbury, in giving the opinion of the court, suggests that United States lands, held by cession, are exempt from this State right, but that lands purchased within a State for ordinary purposes by the general government, are subject to the State right of eminent domain, for streets, rail-roads, &e. And he cites the case of United States vs. Ames, (1 Wood & Minottis G. G. R. 88.) An able jurist in the Monthly Law Reporter, 2T. S. by EMINENT DOMAIN. 73 Lowell, vol. 9, p. 262, considers the law as settled, that the public lands of the United States, held for sale and settlement, are liable to eminent domain of the States where they are situated, like all other property, for roads, rail-roads and other public municipal objects. This seems to be a correct view of our public law. This writer, as we think with good judgment, strongly insists that State taxation of national property is unseemly, and in conflict with the powers of Congress and the na- tional government, which are supreme, and cannot be interfered with in any manner by a State. Hence he re- pudiates the existence of such a power. (lb. 261, 262.) The federal government, in organizing new States, pro- hibits, uniformly, the States from taxing the national public domain, and has not recognised any right of taxing national property. The Constitution, art. 1, § 2, says : " Representatives and direct taxes shall be apportioned among the several States which may be included in this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians, not taxed, three-fifths of all other persons." In Hylton vs. The United States, (3 Ball. 171,) the Supreme Court of the Union decided that the taxing power of Congress was plenary for national objects, and included,!. Direct taxes; 2. Duties, imposts and excises ; and 3. All other classes of an indirect kind, and not within any of the classifications enumerated under the two pre- ceding heads, and that they must be uniform. In Loughborough vs. Blake, (5 Wheat. 317,) the Su- preme Court decided that this national power of taxation extends to all places over which the government extends, and includes the District of Columbia and the territories 74 - EMINENT DOMAIN. of the United States. That Congress cannot exempt a State from its share of direct taxes, but that Congress is not bound to extend a direct tax to the District of Columbia and the territories of the Union. Foreigners, upon principle, cannot be liable to military- duty, as they might thereby be forced to fight against their own country or its allies ; and, for the same reason, a military tax, by way of substitution for such duty, can- not be imposed on them lawfully. (Vattel, B. 2, c. 8, §§ 106, 107.) The act of Congress properly confines military duty in our republic to its own citizens. (1 U. 8. St. L. 271.) In the People vs. Nagle, (1 California B. 232—238,) the Supreme Court of California held that a State law im- posing a tax for a license upon foreigners working the gold mines found in the public lands of the United States in that State was legal. Sec. 4 All the real and personal property of the United States, all its instruments and means of executing the na- tional powers, as a national exchequer or bank, United States stocks, salaries of United States officers, national roads made by Congress for any national object, arsenals, navy yards, mints, custom-houses, forts, would seem, on principle, exempt from State taxation and the State right of eminent domain, as they are the means of executing the paramount powers of the United States over national subjects. The whole territory of the Union is, for na- tional affairs, one government, and the Constitution has made the granted powers of Congress supreme ; and though the State legislatures as well as Congress may levy taxes, this power, of necessity, it would seem, cannot reach the property of the Union, its means or instruments of performing its duties. For, if a State may tax a cus- tom-house or mint, it may levy a per cent, on its receipts so high as to absorb the national duties or income, and EMINENT DOMAIN. 75 thus make the State power paramount to that of the Union. This would also violate the constitutional theory of our government, which has wisely separated the na- tional and State governments in their duties, giving national and paramount powers to the Union, and munici- pal authority to the States. (16 Pet. 447. 1 Kent's Com. 5th ed. 425, 426, ante, § 2. 4 Wheat. 316. 9 lb. 738.) Congress has often declared, in admitting new States, that their respective legislatures should have no power to tax United States lands, and even exempted such lands from State taxation a certain number of years after their sale. (3 U. 8. St. L. 349, § 4 ; pp. 430, 431, § 6 ; p. 291, § 6. 5 lb. 50, § 4 ; p. 51, § 8. See acts of Congress admitting Wisconsin and California, article 2, § 2, of the constitu- tion of the latter State of 1848, assenting to the Con- gressional condition that the State should not interfere with the public lands or their disposition, or tax any United States lands, or the lands of non-resident pro- prietors, higher than those of residents.) After public land is sold by the United States and paid for, and no exemption from State taxation for a time is fixed by a law of Congress, assented to by a State, then it becomes subject to plenary State taxation. (3 How. 461.) As the State governments have charge of the construc- tion of streets, roads and canals for municipal use, a State right of eminent domain may take, it would seem, United States lauds for those objects, if they are not set apart by the national government for a special purpose, as a fort, lighthouse, &c. (7 How. 194, 195. 1 Wood & Minolta B. 80, 81.) A State may tax cars, stages or carriages owned by in- dividuals, and used for transporting the mails, if taxed at the same rate with other property. (7 How. 402.) Sec. 5. A State, for a valid consideration paid, may 76 EMINENT DOMAIN. grant a charter to a corporation, and exempt its franchises and property from State taxation. Such exemption for such consideration may be contracted by a State in a sale of its lands, and such exemption laws are valid, and cannot be repealed by the State legislature. (3 How. 133. 16 Pet 289. 6 How. 331. 7 Crunch, 164 16 How. 369.) Such exemptions must rest on express and positive con- tract, which, being against equality of taxation, ought not to be extended by construction. Sec. 6. The States of our Union, by virtue of their reserved sovereignty, possess the right of eminent domain, for all municipal objects of public use or convenience, as to all property and franchises within their respective limits, subject to the limitation imposed by the Constitu- tion of the Union and their respective State constitutions. (3 How. 230. 6 lb. 531. Wheat. Int. L. P. 2, c. 4, § 3. 18 Wend. B. 13, 25, 173—175. 4 HilVs B. 143—147. 3 Paige's Ch. R. 57, 58. 11 Pet. 420, 536. 7 Mass. R. 395. Angell on Water- Courses, 4th ed. 506. 1 Ball. 537. 1 Bald. C. C. B. 205. 8 Barb. B. 486.) Such objects are public squares, streets, roads, almshouses, public mills, canals, telegraphs, draining extensive marshes, the supplying cities and villages with water, the erection of bridges, ferries, and, perhaps, the conversion of tenures deemed injurious to the public good, into allo- dial. These, when declared by a State legislature to be demanded for public use or convenience, may, it would seem, become the objects of State eminent domain. Sec. 7. Congress has a right of eminent domain as to all property and franchises within the United States for national objects, subject to constitutional limitations. The Constitution regulates the right, and thus assumes its ex- istence. (8 Wheat. 101.) By virtue of this power our national government, by treaty, may release a foreign nation from liability to pay our citizens claims or debts EMINENT DOMAIN. 77 due them ; and, in such cases, the United States are bound, in equity and by the Constitution of the Union, to pay the American claimants. (Const. U. S. art. 5. 11 Pet. 642. Grotius on P. & W. B. 3, c. 20, §§ 8, 10.) Congress is the sole judge of the necessity of taking property for national objects. (4 Wheat. 429.) Sec. 8. In the District of Columbia and the territories of the United States the right of eminent domain, for national and municipal objects, is vested exclusively in Congress. (Const. U. 8. art. 1, § 7; art. 4, § 3. 5 Wheat. 317.) Over places within the States, where jurisdiction has been ceded to the United States, no State jurisdiction re- mains, except so far as reserved by the cession. (1 Wood & MinotCs R. 84.) All such places are subject to acts of Congress, treaty law and the Constitution of the Union. Sec. 9. Congress can, in no case, exercise the right of eminent domain for a national object, either by direct taking, or by treaty, releasing private property, without making full compensation to the owners of the property so appropriated. (Ante, § 1, 7. 11 Pet. 642. 7 lb. 247. 8 lb. 110. 2 lb. 380. Wheat. Int. L. 308, 568.) The Constitution prescribes this condition, and thereby recog- nises the existence of a right of eminent domain for na- tional objects, by the limitation of the power. And thus the national government is admitted, by a necessary im- plication, to possess, as an attribute of sovereignty, this authority. (lb.) Grotius applies this doctrine to treaty releases of private claims and property, as well as to property destroyed by an enemy, and he holds that, upon principles of equity, the loss should be charged on the national treasury, so that each citizen may bear his just pro rata share of the loss of property by national appro- priation or belligerent destruction. ( Grotius on P.&W. 78 EMINENT DOMAIN. B. 2, c. 14, § 7 ; B. 3, c. 20, §§ 8, 10. See, also, Vattel, B. 1, c. 20, §§ 244, 245.) The Constitution of the French republic of 1848, as well as that of Greece, contain the same principle as the Constitution of the United States, requiring indemnity in all cases. Upon this obvious principle, that all the citizens of a State or nation ought to bear equally its burdens, Buller, J., held that no action lay "for pulling down houses or raising bulwarks for the preservation and defence of the kingdom against the king's enemies. The civil law writers," says he, " indeed say that the individuals. have a right to resort to the public for satisfaction ; but no one ever thought that the common law gave an action against the individuals who pulled down the house, &c. This is one of those cases to which the maxim applies, salus populi supreme/, est lex." (4 2! E. 796. 1 Demo's B. 598. 1 Ball. 362. 17 Johns. 52.) Sec. 10. In exercising the right of taking private property for public use, all States and nations, from the nature of the right, must actually take it for a purpose adjudged by the legislative power to be for the. public use or convenience. (Ante, § 1. 16 Vermont B. 449. 18 Wend. 13. 11 Pet. 642. 8 Row. 585. 6 lb. 531. 2 Kent's Com. 5th ed. 339, 349.) It may be so. taken for a public use by State agents, or by the intervention of courts or municipal bodies. (6 How. 531, 532. 18 Wend. 13. 25 lb. 173, 174. 3 Paige's Ch. R 57, 58. 2 mil, 24.) A public use seems to be where the property is appro- priated for public defence, public health or public con- venience, and of this the legislature of each State or na- tion is the sole judge. But the taking, by a law, of the property of one man EMINENT DOMAIN. 79 and transfer of it to another, would not be a taking for public use, and whether a full compensation was made or not, it would be tyrannical, and such act would, upon principle, be illegal and void. (5 Paiges Oh. B. 158. 3 How. U. 8. B. 213, 230. 18 Wend. 59. 4 Hill, 46, 47. 2 Kent's Com. 5th ed. 340. 11 Pet. 642. 8 How. B. 585. 3 Comst. N. T. B. 517. 11 Wend. 149. 19 lb. 676.) Sec. 11. A State of our Union owns the soil under navigable rivers and all navigable waters within its limits, subject only to the national rights of free navigation and commerce, and other powers granted by the Constitution of the United States. In maritime States their curtilage forms part of their jurisdiction. Within such limits the State right of eminent domain, subject to constitutional limitations, seems to attach to such soil and navigable waters of a State ; with that ■ restriction, the State regu- lates fisheries, ferries, bridges, piers, wharves and State improvements of channels, &c. This State right to the soil under its navigable waters extends from below ordinary high-water mark. (3 How. 213, 230. 16 Pet. 410 ; see ch. 6, § 6. 5 Gilmatis B. 351. 4 Wend. 11, 25.) State legislatures have power, within their respective territories, to prescribe the lines of wharves, and to de- clare those a public nuisance that extend beyond them, even though the riparian owner's right to the soil under water for wharfage and commercial purposes goes beyond such lines, and though no actual injury is done to naviga- tion, and no compensation to the owner is provided by the law. (7 Oushing's Mass. B. 53, 101 — 104.) An indictment at common law lies for any public nui- sance erected in navigable waters. (lb. 101, 103.) Sec. 12. A State may exert its power of eminent do- main by the intervention of corporations or associations, 80 EMINENT DOMAIN. and may regulate the tolls for the use of all State works thus made, such as rail-roads, canals, ferries and telegraphs. It seems that as to all artificial navigation of a State and all such works, State laws may allow a discrimination of tolls in favor of the citizens of the State as between them and citizens of other States and foreigners. (4 Wash. C. G. R. 378.) Vattel asserts this as a rule of the law of nations, and as a mode by which a nation might justly compel all foreigners to contribute a fair pro rata towards the construction and support of such works. This may be a right of State and national sovereignty, but such discrimination in tolls is not in harmony with the liberal commercial spirit of the age, and seems to be against sound financial policy., In our republic, national works alone, in execution of acknowledged constitutional powers over commerce, the mails and military defence can be executed when directed by acts of Congress ; whether tolls can be collected on such national works is an unsettled point. If a national railway, from Lake Michigan or St. Louis, were made to the Pacific for mail and military purposes, it might lead to a solution of the question. In Hartwell vs. Armstrong, (19 Barb. R. 166 — 168,) the Supreme Court of New- York say, that eminent do- main is vested in the people of every State, and may be exerted, as prescribed by its constitution and laws, when- ever a State legislature decides that its exertion is neces- sary to the public good. That a State may exert this power in draining swamp lands and marshes, and in bringing water into cities and villages. That in such cases the object is public, though a small number of per- sons may be immediately benefited. And that, when the legislature passes such laws and adjudges the necessity of taking private property for such public purpose, and its agents, commissioners or corporations, pursuant to law, EMINENT DOMAIN. 81 take such private property for such object, the courts cannot review the exercise of the legal discretion exer- cised by them and conferred by law, if the persons acting under State authority proceed in good faith in discharg- ing their public duties. But that, if there were gross invasions of private rights, unjustified by any semblance of public necessity, that then the courts might interfere and protect them ; but that the case must be very clear to warrant such judicial interference. The same doctrine is held by the Supreme Court of Massachusetts. (4 CusMng's B. 60.) The above principles with regard to eminent domain have been sanctioned in the Court of Appeals of New- York. (3 Selden, 314.) In Moore vs. The Mayor, &c, of New- York, (4 Selderi's N. Y Ap. B. 110, 113, 114,) the Court of Appeals of New-York held, that where the legislature authorized a corporation to take lots and lands in fee simple absolute, for a public purpose, and its full value was appraised according to the law and paid to the owner, his wife not being a party to the proceeding, that, upon his subsequent death, she could not recover dower in the premises, as, at the time of the taking and appraisal, she had no fixed and appraisable right in the land. Whenever the State authorizes the taking of land in fee, by virtue of eminent domain, upon taking and pay- ing for it, the absolute fee vests in the State or corpora- tion for whom it is condemned. (1 Kernaris N. Y. Ap. B. 314.) In Chace vs. Sutton Manuf. Co. (4 Gush. B. 152) it was decided, that where dams are authorized as part of canals or other works, by associations or corporations, that flow back water upon the lands or mill-seats of any person, or create reservoirs there, to his injury, he is entitled to damages, (lb. pp. 155, 161, 162.) 6 82 EMINENT DOMAIN. It was also held, that a grant by law of power to use the water of such reservoirs for mills, as well as for a canal, was valid, and that the canal company, having paid full damages for a perpetual easement and right of flow- ing of plaintiff 1 's land, for purposes of a public or quasi public nature, for canaling and milling, that an abandon- ment of the canal and transfer of it to a rail-road com- pany, pursuant to a State law, did not deprive defendants and others owning mill privileges and water-power, de- pendent on such reservoirs, of their rights, and that the owner of the lands was not entitled to a second assess- ment of damages, or to repossess himself of his land and water, as it was before the construction of the canal, (pp. 167—169.) The court held, that the law allowing the sale of the canal to the rail-road was valid, and that the legislature had authority, by right of eminent domain, for the crea- tion of water-power for public mills, to allow a man, on his own land, to erect dams and flow another's land, on making full compensation for damages, (pp. 169—171.) In Harris vs. Thompson, the case of the Fort Miller dam, erected originally by the State of New- York, as part of the Champlain Canal, and afterwards continued in aid of mills, pursuant to State laws, they were held valid, and the rights of the mill-owners were held, by the Su- preme Court, protected by law. (9 Barb. 8. G. B, 350.) In this case the canal use had been, by law, abandoned, and the dam was kept up for the mills in use, and the State paid the damages arising from flowing or wetting the lands of individuals. The court held, that the legislature alone was the judge of the necessity or expediency of appropriating private property to public use ; and that the court could not re- vise its decision. That the court had simply power to RETROSPECTIVE LAWS. 83 inquire whether private property is taken for a public or private purpose, (p. 362.) Sec. 13. A nation, a State of our Union or the United States, within the District of Columbia or the territories of the Union, by the law of nations, have the right to tax the property of resident foreigners, by virtue of their sovereignty, as a compensation for protection. All pro- perty of non-residents, as well as residents, are subject to dues and customs on importation into a country, unless exempted by its laws. (8 How. 493, 494. 5 lb. 523.) In the internal taxation of a nation or State, natural equity demands equality of taxation ; and it is a principle of American law applicable to national and State taxation. {Const U. S. art. 1, § 2 ; art. 4, § 2. Const. Wis. art. 8, § 1. Ord. 1787, art. 4, ante, §§ 1, 2, 3. Act ad. Cali- fornia Acts Cong. 1850, p. 452, and other Acts ad. States, and ante, ch. 1, § 15.) In our Union, a State, by virtue of its municipal sove- reignty, cannot tax persons or property coming into it by sea or land, from any foreign country, or from another State. It may levy charges absolutely necessary to sup- port its inspection laws on property, but no duty on ton- nage on exports or imports can be levied by a State, un- less authorized by Congress, and then, except as herein stated, they go to the treasury of the Union. (Const. U. S. art. 1, § 10, sub. 2.) EETROSPECTIVE LAWS. Sec. 14. Nations, Congress and our States, within their several jurisdictions, may pass retrospective laws to con- firm titles and transactions according to their intent, though defective in some legal form or evidence. Such laws, divesting any legal vested right or title, are unjust, and in violation of that great elementary principle 84 RETROSPECTIVE LAWS. of natural equity — that no man shall be deprived of any- right without due process of law, and an opportunity of being heard in defence of it before a competent tribunal. (1 Kent's Com. 455, n. e. 8 Wheat. 493. 6 How. 331. 14 Pet. 365. 10 lb. 294. 4 Serg. & Bawle, 401. 1 N. Hamp. B. 199. 2 Pet. 657, 658. 8 lb. 108. 10 How. 395. 6 Barb. 8. C. B. 213. Const. U. S. art. 5, and State Consts. 16 How. 369.) That natural equity is a principle of American law. In our republic the courts of the respective States alone have jurisdiction to pass upon retrospective State laws, and determine their effect and validity, unless they are in conflict with a treaty or act of Congress, or impair the obligation of a valid contract, or unless the State law is a bill of attainder or ex post facto law, which are retrospec- tive statutes, and inflict penalties, or punishments not enacted at the commission of the offence. (10 How. 399, 400. 8 Pet. 110.) A bill of attainder is a special act for punishing one or more particular offenders for past acts or omissions. Congress and the State legislatures are, by the Constitution of the Union, prohibited from passing such penal and criminal laws. They do not re- late to civil suits or proceedings, but to penal and crimi nal only. (Const. U. 8. art. 1, § 10. 8 Pet. 110. 7 B). 247. 11 lb. 538, 540.) The Constitution of the French Eepublic of 1848 has adopted our prohibition of bills of attainder, by declar- ing "the power of confiscation shall never be re-estab- lished." A State may lawfully pass recording laws, by which one class of deeds, mortgages or contracts may take pre- cedence of others and in effect annul them. ( 3 Peters' U. 8. B. 280, 290.) A State may pass usury laws, if not retroactive. (4 Wheat. 207.) It can pass new recording laws, and shorten RETROSPECTIVE LAWS. 85 or lengthen statutes of limitations. (6 How. 331. 5 Pet 437.) A State may also pass statutes of limitations, and "when a right is confirmed or barred by such law, it ought to be so held, it seems, in all other States and nations, by all our State courts and by the Supreme Court of the Union. (13 Pet. B. 312, 326, 327. 6 How. 61, 62. 4 Wheat. 206. 12 Pet. 33. 5 lb. 151, 402, 441. 1 How. 51. 8 Pet. 361.) A statute of limitations begins to run on the repeal of a proviso on excepted debts from the date of the repeal, unless otherwise provided. (7 How. 779.) State recording laws are valid as to past as well as future contracts, if opportunity is allowed to comply with them. (3 Pet. 280, 290.) State tribunals have decided variously with regard to foreign statutes of limitations. We have given the effect of the decisions of the Supreme Court of the United States. Where a State passes recording laws or statutes of limitations, they must give the holders of contracts or deeds, mortgages, &c, an opportunity to comply with the law or enforce their rights to be valid — otherwise they would violate contracts and fall within the constitutional prohibition on that subject. An act instantly destroying all remedy or right would be against natural equity, and would be in effect a taking away from a man his property without compensation, and transferring it to another. (13 Pet. 45, 62, 64. 8 Mass. B. 430. 2 Greenl. 294. 2 Gall 141. 4 Wheat. 207. 8 lb. 84. 3 Pet. 290. 1 How. 316. 3 lb. 717.) No repeal of any laws, or the making of new rules of evidence by a State legislature, can divest a man's right or property already perfect under existing laws. (16 Pet. 492 ; post, ch. 5. 8 Wend. 661. Fletcher vs. Peck, 6 Crunch, 87. 1 How. U. 8. B. 311, 315. 4 Wheat. 207. 86 EETROSPECTIVE LAWS. 12 lb. 260—262, 352.) Nor will a change of domicil im- pair a right to personal property, the title to which has become perfect under the laws of a State of our Union, or of a foreign nation. (11 Wheat. 369, 371.) A law of a State, purporting to legislate as to a remedy for collecting debts, which takes away a, part of the se- curity pledged by a contract to a creditor at the passage of the law, is a law impairing the obligation of existing contracts by retrospective action, and violates the consti- tutional prohibition against State laws impairing the obli- gation of contracts. (Bronson vs. Kenzie, 1 How. 311, 315, 316. 3 lb. 71T. 1 lb. 320. 8 Wheat. 1, 71, 75, 84) In Murray vs. Gibson, (15 How. R 423 — 425,) the Supreme Court of the United States decided that statutes of limitations, and other statutes, are not to be construed to have a retroactive operation, unless such construction is unavoidable ; but that they are to be deemed to speak for the future, as a general rule. That as a general rule, courts adopt the interpretation of State statutes given by their respective highest tribu- nals, provided it does not conflict with the paramount authority of the national constitution or laws of the United States binding upon their own courts, or with the funda- mental principles of justice and common right. The Code Napoleon says : "The law ordains for the future only ; it has no retrospective operation." By change of remedies on contracts, existing rights can- not be taken away. (1 How. U. 8. R. 316, 319. 8 Wheat. 1, 75, 76, 84. 3 Row. 717. 8 lb. 320. 14 lb. 488.) These principles govern the effect of State laws, when a suit is brought in any court, whether national, State or foreign court. When a suit is brought in any State court of our Union, the statute of limitations of the lex fori governs, as that RETBOSPECTIVE LAWS. 87 law regulates the remedy, though incidentally affecting the rights of parties. (13 Pet. 324—327.) This is so when a suit is brought on a judgment recover- ed in another State, as well as on contracts. (13 Pet. 327.) Laws, being rules for conduct and ascertainment of right, are in their nature prospective. Retrospective laws, taking away or impairing rights of property, ex- cept under the right of eminent domain, when exercised under an act of Congress for a national object, or a State law for public use and upon full compensation, are condemned by natural equity, and ought to be held illegal and void in all tribunals. Sec. 15. The right of eminent domain attaches to all pro- perty rights of every sort, to realty, personalty, to fran- chises, and to all rights secured by contract or otherwise. It has been debated whether a State granting a charter to a company to erect a bridge, establish a bank for a given period, could, by virtue of the right of eminent domain, take such franchise and connected property of a corpora- tion, prior to the expiration of the charter, on full pay- ment of damages duly assessed. (18 Wend. 13. 13 How. 71. 23 Pick. 360. 6 How. V. 8. B. 531, 532.) Article 5th of the amendments of the Constitution of the United States limits the power of Congress to taking private property, by virtue of the right of eminent do- main, to cases where it is needed for national public use, and upon payment of a just compensation. It presupposes the power in Congress and the national government, and limits its exercise. (Barrow vs. The City of Baltimore, 7 Pet. R. 243.) Congress may judge of the necessity o taking private property for such public use, and so may the President and Senate in making treaties. The deci- sion of Congress on that point must, upon principle, be final, and if full compensation is made to the owners o 88 RETROSPECTIVE LAWS. the property taken, no judicial tribunal can review the questions of public necessity or public use. (9 Barb. N. T. R 350, ch. 5, § 19.) In Cushman vs. Smith, the Supreme Court of Maine, by its able Chief Justice Shepley, decided in this case : 1st. That the clause in American constitutions, prohibiting the taking of private property for public use without compensation, does not prohibit a legislature from author- izing an exclusive occupation of private property tempo- rarily, as an incipient proceeding to the acquisition of title to it, or to an easement. 2d. That it prevents a per- manent taking, occupation or appropriation of it, for public use, without the actual payment or tender of a just compensation for it. 3d. That an unreasonable delay in such payment or tender would defeat such incipient right of occupancy. 4th. That an action of trespass will lie for such occupancy, accompanied with unreason- able delay of payment or tender. 5 th. That, in such cases of delay, an action of trespass on the case may be maintained to recover damages for all injuries occa- sioned by prior occupation. And it was decided, in that case, that such an action of trespass was sustainable against the incipient occupants, who had failed to reason- ably pay or tender payment for the land proposed to be taken, by virtue of a right of eminent domain. In the case of Bonaparte vs. The Camden and Amboy Rail-Road Co., (I Baldwin's G. C. B. 205, 216,) a bill in equity was filed to prevent the defendants from locating a rail-road through the plaintiff's pleasure grounds at Bordentown, N. J., on the ground of irreparable injury to the estate of plaintiff, an alien. Judge Baldwin decided that the 11th section of the Judiciary Act gave jurisdiction to the Circuit Court in all cases of a civil nature at law or in equity, (1 Story, 57,) independently of any State law ; and that as an alien, the KETROSPECTIVE LAWS. 89 plaintiff had a right to sue in the United States Circuit Court for an injury to his lands in New-Jersey, just as though he lived in a foreign country. The learned judge held, that though a State cannot be sued, that its agents might be prosecuted in reference to money actually collected and paid into the State Treasury, if illegally obtained, (9 Wheat. 743,) and that the defend- ants, as agents of the State, might be sued for their acts, if illegal, (pp. 217, 218.) That government has the power to take private pro- perty for public use, of the necessity or expediency of which it must judge, but that the obligation to make just compensation is concomitant with that right, (pp. 220, 221, 226.) That a canal, rail-road or other like corporation or as- sociation, is public where the law secures to the public a right of passage thereon by paying a reasonable, stipulated, uniform toll. (p. 223.) That an entry for exploration of a route for a road, canal, &c, is not a taking of the land, and that when nothing further is done, there is no* right to compen- sation; but if the company commit wanton acts, or do unnecessary damage, they are trespasses, otherwise the law protects the entry, (p. 226, and cites 20 Johns. B. 104, 740. 7 Johns. Ch. B. 342—344. See, also, 9 Barb. S. G. B. 449.) Sec. 16. In all cases of the exercise of the right of emi- nent domain, the law authorizing it ought to provide a legal remedy for the recovery of full payment of the damages to be assessed. (Const. U. 8. Amend, art. 5. 7 Pet. 243—247.) The 6th section of the Constitution of the State of New- York, of 1846, secures this right ; and in all cases where the compensation is not to be made by the State, it is to be ascertained by a jury, Or by not less than three commissioners appointed by a court of record, 90 RETROSPECTIVE LAWS. as shall be prescribed by law. Chancellor Walworth, in giving the opinion of the Court of Errors, in Bloodgood vs. M. & H. Rail-Road Co., (18 Wend. 18,) speaking of paying for land taken by virtue of the right of eminent domain, says : " The compensation must be either ascer- tained and paid to him before his property is thus appro- priated, or an appropriate remedy must be provided, and upon an adequate fund; whereby he may obtain such compensation through the medium of the courts of justice, if those whose duty it is to make such compensation re- fuse to do so." (2 Demo's B. 472.) Where property is taken for public use, as a canal or other improvement, it seems that the owners of all adja- cent lands ought to be compensated for all direct and material injuries arising from public works, and the con- stitutional provision in spirit would fairly reach them. (Thacher vs. A. & S. Rail-Road Co., 25 Wend. 464. 18 lb. 1. 2 Denio's E. 433, 450. 2 Kent's Com. 5th ed. 339, 340, n.) Sec. 17. Municipal corporations, its officers or persons designated by a State law, or any person on whom the duty of public protection devolves, may, in a case of actual necessity, to prevent the spreading of a fire, the advance of an hostile army, the ravages of a pestilence or any other great calamity, destroy the private property of any individual, for the protection or safety of the many, without subjecting the actors to personal responsi- bility for the damages which the owner has sustained. (2 Denio, 474. 18 Wend. 129—131. 25 lb. 173—175. 2 Kent's Com. 4th ed. 338.) In such cases, the sufferers can be compensated so far only as a statute, if any, shall provide. (2 Denio, 461.) Such acts of destruction are not founded on the right of eminent domain, but of necessity. No compensation can be recovered, unless it is provided for by the local RETROSPECTIVE LAWS. 91 statute law of the nation or State of our Union. (25 Wend. 157. 18J&.126. 2X>emo, 461. 1 Ball. 362. 17 Johns. 52, 53.) Sec. 18. Congress and the original thirteen States have maintained a uniform right of pre-emption of lands pos- sessed by the Indians. Sec. 19. Congressional power of taxation. — The Con- stitution of the Union (art. 1, § 8) confers on Congress power " to lay and collect taxes, duties, imposts and ex- cises ; to pay the debts and provide for the common defence and general welfare of the United States ; but all duties, imposts and excises shall be uniform throughout the United States." Sub. 4 and 5 of art. 1, § 9, are in these words : "No capitation or other direct tax shall be laid, unless in pro- portion to the census or enumeration hereinbefore directed to be taken." (See Const, art. 1, § 2, sub. 3.) " No tax or duty shall be laid on articles exported from any State. No preference shall be given, by any regula- tion of commerce or revenue, to the ports of one State over those of another ; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another." In Hylton vs. the United States, (3 Ball. 171,) and in Loughborough vs. Blake, (5 Wheat. 317, 323,) the Su- preme Court of the Union decided that there was in Congress a general power of taxation co-extensive with the Union, territories and District of Columbia, as well as the States, but that no tax can be laid on exports or on any thing prohibited, or with any discriminations pro- hibited by the Constitution. These cases (5 Wheat. 323) show that Congress has clearly no power to exempt any State from its due share of the burden of taxation. But this regulation is expressly confined to the States, and creates no necessity for extending the tax to the District 92 EETEOSPECTIVE LAWS. or territories. These cases settle that Congress, in levying taxes upon the States in the form of duties, imposts and excises, must levy them uniformly, and without discrimi- nation, on all the States of the Union ; and that when levied as a capitation, or any other direct tax, they must be apportioned among the several States according to the last preceding United States census, taken according to art. 1, § 2, sub. 3 of the Constitution. (Ante, § 3.) Sec. 20. When, pursuant to a statute, land is taken for a highway or turnpike road, though the fee is ap- praised and paid for, upon their abandonment or discon- tinuance the soil of such road reverts to the owner and his successors, if he has sold the adjacent land, even if he has excepted such road in his deed. (15 Barb. 209. 3 Kent's Com. 432. 12 Wend. 372. 4 Mass. B. 427. 1 Sumner, 21, 37. 11 Conn. B. 60. 19 Wend. 33. 5 Conn. B. 311.) If land is conveyed for such special purpose, the rule would seem to be the same. The same rule is applicable to canals and rail-roads, but not to land taken and paid for in fee simple for an alms- house, or any like purpose. (3 Selderfs B. 314.) The Court of Appeals of New- York have held, that where the State pays for land in fee simple for a canal, the State is its owner if it happens to be abandoned as a canal. (1 Kernaris B. 314.) Sec. 21. If a legislative grant be made to one corpora- tion for a bridge, ferry, turnpike or other public work, which is not in its terms exclusive, a second grant to another corporation by the legislature would not be un- constitutional, if for a like object, and even if constructed so near to the former as greatly to impair, or even destroy its value, and this without making compensation to the first corporation for consequential injury. (11 Pet. 420. 17 Conn. B. 454. 1 Am. Bailway Cases, S. & B. 237.) KETROSPECTIVE LAWS. 93 All legislative and State grants are to be interpreted according to their plain meaning, and where two con- structions may be fairly applied to them, or portions of them, that most favorable to the State shall be adopted. (8 How. 581.) And no exclusiva right is ever taken by such grant by implication. (See above cases.) These principles are essential to the preservation of governmen- tal authority and to the onward progress of the country. The Supreme Court of Massachusetts, in the case of The Boston Water-Power Company vs. The Worcester Rail-Road Company, decided that the legislature of a State might, by virtue of eminent domain, authorize a second corpora- tion to take, on full payment, such portion of the franchise and realty of the first granted corporation as the legisla- ture should, by itself or its agents, deem necessary for a second public work. (23 Pick. 360.) The court held all property amenable to this high governmental power, whether granted by the State or not. (4 Gushing 1 a Mass. B. 63. 4 Gill. & Johns. 1. 16 Pick 87, 100. 1 Am. Railway Gases, S. & B. 578.) CHAPTER IV. NATIONAL AND STATE JURISDICTION, CIVIL AND CRIMINAL. Section 1. All sovereign States have an independent moral and legal existence, with executive, legislative and judiciary powers vested in one or more tribunals. Each nation forms an entirety, a moral being, representing the aggregate rights and duties of all its citizens in reference to foreign nations. All departments of a nation must con- cur in maintaining the rights and performing the duties of a nation, though the executive is the international organ of communication. It is, therefore, important to define the civil and criminal jurisdiction of nations, in order to preserve international harmony and equity. We have shown, in the first chapter, that to the sove- reignty of every nation belongs the general and exclusive jurisdiction over its entire territory, with all its lands, islands, rivers, lakes, inclosed bays, like our Long Island Sound, our Narraganset, Chesapeake and Delaware bays, and extending outward a marine league from the coasts of a maritime nation. ( Wheat. Int. L. P. 2, c. 4, §§ 6 — 10.) This maritime curtilage, in the absence of any conflict- ing right, might be conveniently ascertained by consider- ing all islands reaching to within six miles of the main land as forming part of the coasts, and the marine league would then be measured from the outer coast line of such islands. ( Wheat. Int. L. P. 2, c. 4, § 6. 11 Wheat. U. 8. R. 45. Vattel, B. 1, c. 18, § 289.) Mud or other islands near the main land are part of the coast. Chancellor Kent, in his Commentaries, with great judg- NATIONAL AND STATE JURISDICTION. 95 ment suggests that a nation's curtilage might be estimated by taking the outer headlands of a country and connect- ing, by straight lines, the points, a marine league seaward from the outermost headlands of the coast, and assigning all of the sea within as forming the curtilage of a mari- time nation. The leading maritime nations all agree that this mari- time curtilage shall extend a marine league from the coast. The Supreme Court of the United States, in the case of the Mariana Flora, (11 Wheat U. 8. R. 42 — 45,) have so adjudged. All civilians now agree in this doctrine. Sec. 2. The jurisdiction of a nation, civil and criminal, according to the law of nations, covers its entire territory with its maritime curtilage, and extends to all persons and property within the same, with such exceptions as each nation chooses to allow. The consent of a nation is the true ground of exception from its jurisdiction. ( Wheat Int. L. P. 2, c. 2, §§ 6, 7, 8. Story's Confl. L. p. 24, § 23.) By common consent, now ripened into a rule of public law, kings, presidents and other national executives, ambassadors and public ministers, with their suites, are ex- empted from the local law of the countries where they reside and are accredited. This exception is also allowed when foreign armed ships or armies are allowed to pass over the waters of a nation's curtilage, or across the ter- ritory of a nation. (Rutherford's Inst 2d Am, ed. 497. Story's Confl. L. p. 21, § 21. Wheat. Int. L. P. 2, c. 2 §§ 7 — 12. 7 Crunch U. S. R. 116. 1 Wheat U. 8. R. 238, 252.) Armies may be refused a passage through foreign territory, and armed ships may be excluded from the maritime curtilage of foreign States in their discre- tion. And foreigners, on board of their ships of war within the waters of a neutral nation, for acts done there or on land, may be proceeded against criminally in the courts of the neutral State, if the acts were done by them 96 NATIONAL AND STATE JURISDICTION. as individuals. (2 U. S. St. L. pp. 339, 340—342. Wheat Int. L. P. 2, c. 2, § 9.) States, in virtue of their sovereignty, may exempt by law citizens or foreigners from suits, to such extent as they shall think fit, unless prohibited by organic or con- stitutional law. (14 Pet. R 745.) Armies are not permitted to enter a neutral country without express permission of its sovereign or executive, on account of the great danger of injury to the country. {Wheat. Int. L. P. 2, c. 2, § 9. 4 Hamilton's Works, 48, 49.) But ships of war may enter the ports or waters of a neutral State, unless forbidden, if they demean them- selves peaceably. But if they are prohibited from enter- ing the waters, or hovering on the coasts of a neutral nation on account of any hostile act or interruption of the trade of the ports of such State, they must abstain from such ports, maritime curtilage and contiguous waters, or the neutral may use force to drive them off. {lb. 2 U. S. St. L. 605—606. 1 Am. St. Pap. 261. See c. 1, §9.) Sec. 3. When an army enters a foreign State by con- sent, or armed vessels enter its waters by an implied per- mission of the neutral, the jurisdiction of the army and of the armed vessels remain in the military and civil tri- bunals of the nation to which they belong. {Ante, § 2. Wheat. Int. L. P. 2, c. 2, §§ 7—12.) No army or armed ship thus admitted- by consent, express or implied, can lawfully commit any act of hostility there. {lb.) Public armed ships, driven into the ports of a friendly power by distress, are exempt from the local jurisdiction, if they behave peaceably. {lb. 146. 2 U. S. St. L. 605.) It has been maintained, and with good reason, that private ships, carried by force or driven by distress into foreign ports, ought not to be subject to the local juris- NATIONAL AND STATE JUKISDICTION. 97 diction if no attempt to trade is made there, and if no act is done there on board the ship in violation of the peace or the law of nations. (Wheat. Hist. L. N. 723. Webster's Letter to Ld. Ashburton. Webster's Dipl. & Of. Papers, pp. 83 — 91.) It is clear that, where a vessel is forced into a foreign port by distress, no penalty attaches to such entry. {Wheat. Hist. L. JV; 735.) If any crime be committed there by any of the passengers or crew, they may be subjected to the lex loci. (2 U. 8. St. L. 339. Wheat. Int. L. P. 2, c. 2, § 9.) A ship of war may, if permitted by a neutral, carry prizes into its ports, and hold them there. (5 Hamilton's Works, 132, 133. 7 lb. 135.) Sec. 4. A nation is under no obligation to grant a pas- sage through its territory to a foreign army, and it may lawfully withhold the use of its maritime curtilage or con- tiguous waters to public armed ships. (2 U. 8. 8t. L. 605, 606.) Upon this principle, the strait connecting the Mediterranean with the Black Sea is closed by the Porte against all foreign ships of war, though it is open to all merchant ships of all nations having friendly rela- tions with the Porte. Our republic has exercised this power of excluding armed ships from our waters ; and President Jefferson thought it reasonable that ships of war, seeking to capture merchant ships of an enemy trad- ing to and from our ports, ought to be compelled to cruise beyond the Gulf Stream. This exclusion of these armed ships from our waters arose from their interference with the commerce of our ports. Public and private armed ships may justly forfeit the right of entering a nation's waters by any hostile acts or proceedings near her coasts, injurious to her commerce. {Wheat. Int. L. P. 2, c. 2, §/9. 3 U. 8. St. L. 449, § 9.) Nor is a foreign armed vessel permitted to harbor criminals in foreign ports, or within the curtilage of a 7 98 NATIONAL AND STATE JUEISDICTION. foreign State. In such cases, criminals may be arrested. (2 U. S. St. L. 339, 340, 342. Wheat. Int. L. P. 2, c. 2, §§ 9, 13.) According to Ceesar, it was a permanent rule of Roman policy to forbid to foreign armies a passage through Roman territory. And it was a wise one. If a foreign army enters a neutral territory or an armed ship neutral waters, and there commits hostilities, the officers and soldiers are not liable, civilly or criminally, for the act is national. It may be sufficient cause of war or ground for demand of national satisfaction, but the law of nations allows no responsibility to attach to the officers and soldiers, the instruments of the nation committing the aggression. (See the opinion of Mr. Lee, Attorney-Gen- eral of the United States, to the Secretary of State, of December 29th, 1797; and the letters of Daniel Webster, -Secretary of State, and of Mr. Fox, the British Minister, relative to the McLeod case, copied into the report of that case in 25 Wend. R 507, 512, notes. 26 lb. 691, 692, 699 and onward.) In the McLeod case, the invasion of our territory and destroying the Caroline, and killing a man on board, was claimed to be an act of self-defence on the part of the British force, and the affair was properly con- sidered by our able civilian, Webster, as exclusively a national matter. Upon the same principle, if a public or private armed ship of a nation capture a neutral ship, and she is sent in for adjudication, the captors cannot be sued for the act in the courts of the neutral. It is a national act, and if the ship is wrongfully condemned or is not restored to the neutral owners, it becomes a national wrong, to be re- dressed by the political power. (3 Ball. B. 129.) But this exception does not extend to prize goods illegally captured, in violation of the jurisdiction of the neutral State, and brought within its territory or maritime curti- lage by the captors. In such case, the courts of the neu- TERRITORIAL JURISDICTION. 99 tral may take cognizance of the matter, and award resti- tution of the goods so illegally captured. (8 Wheat. 352. Wheat Int. L. P. 2, c. 2, § 9.) TERRITORIAL JURISDICTION. Sec. 6. All persons within the territory of a nation, as well foreigners as other persons, owe obedience to its laws and are subject to them, as well as property found there. (9 Wheat. 370. 11 Pet. 138, 139. Wheat. Int. L. P. 2, c. 2, §§ 1, 2, 12, 13, 19. Story's Gonfl. L. §§ 18, 19, 550.) This general rule has limitations. This power includes pirates, and all piratical offences on the high seas and on the islands and coasts of a country. {Wheat. Int. L. P. 2, c. 2, §§ 12, 15.) The Constitution of the United States has secured to the citizens of each State "all privileges and immunities of citizens of the several States;" has forbidden the States to pass ex post facto criminal and penal laws, and laws impairing the obligation of contracts, or taking life, liberty or property without due process of law. A State may, indeed, if it can arrest the offender within its territory, or induce his extradition by the State author- ities of his residence, punish him, though the crime was matured beyond its limits, and executed within them by innocent agents. (Adams vs. People, 1 Comst. R. 173.) Subject to constitutional limitations our States are muni- cipal sovereignties, and the law of national comity ap- plicable between nations is part of the public law of our Union, as between State and State, and as between any State and the District of Columbia, and a State and the territories of the Union. (1 U. S. St. L. 302. 2 lb. 116, § 6. 13 Pet. 590. 4 How. 285, and cases therein cited. 2 Pet. 179, 586, 688. 10 lb. 579, showing bills 100 EXTRA TERRITORIAL JURISDICTION. of exchange drawn in one State on a drawee in another have the qualities of a foreign bill of exchange. EXTRA TERRITORIAL JURISDICTION. The sovereignty of a nation subjects to its laws and tribunals not only property and persons within its terri- tory, but its citizens on the high seas and abroad ; and pirates, for offences against the law of nations, may be brought within their action. (8 How. 493. Wheat. Int. L. P. 2, c. 2, §§ 6, 10, 11. Story's Confl. L. 2d ed. §§18,19.) The actual location of property, movable or immovable, within the limits of a State, subjects it to its laws and tribunals. Contracts made within the territories of a na- tion or State, or transactions occurding there, if brought before foreign tribunals for adjudication, are generally, by national comity, decided according^ to the lex loci con- tractus, or of the place of 'the transaction. (Story's Confl. L. §§ 18, 19, 251, 263, 267, 431. Wheat. Int. L. P. 2. c. 2, §§ 3, 5, 6, 7. 6 How. 550. 1 lb. 28. 8 Pet. 361. 2 Burr. 1079, 1080. 8 How. 493, 494.) Though nations have exclusive jurisdiction over their respective territories, and the force and effect there of foreign or extra territorial transactions, and the privileges of foreigners there depend generally on the lex loci, the law of nations, founded on the golden rule of the' Gospel, has affixed limits to this territorial power, which all gov- ernments are' deemed to assent to. This law of national comity excepts from the jurisdiction of the lex loci foreign ministers and diplomatic representatives, with attendants and effects,- foreign kings, emperors, presidents or execu- tives, foreign ships of war entering a nation's ports by presumed permission, or. in distress, merchant ships forced DERELICT PROPERTY*^ \ \Q\ into foreign ports by necessity, a foreigV^-Jtojf^assing through a country by permission of the government. The law of comity gives all nations the right, and im- poses on all the duty, of free intercourse and commerce, and kind hospitality. The same law confers the right on governments, with the correlative duty of enforcing foreign transactions, contracts and rights, not inconsistent with the Christian morality and the protection of the people of the respec- tive national jurisdictions. DERELICT PROPERTY. Sec. 7. A conflict of the lex domicilii and of the lex loci rei sitae of personalty generally arises among credi- tors, or among creditors and legatees, or parties claiming to succeed to the movables of the testator or intestate. It sometimes happens that the deceased has no one to succeed to his movables, and they are, in fact, derelict by the law of the domicil, so far as private persons are con- cerned. In all such cases, by virtue of sovereignty, the States and nations, where such property is situated, at the death of the testator or intestate, seem to be the natural owners of the movables within their respective territo- tories. As no equal title to actual possession of and sove- reignty over the thing exists, it must prevail. The nations of Europe have exercised the right of tax- ing all personal estate of deceased foreigners,- on its with- drawal, and the respective States of the Union have the same power, unless restrained by our treaties. (5 How. 623. 8 lb. 493, 494) This right is legitimately founded on possession, protection and jurisdiction. In Chapter I. we have explained when derelict property is subject to national and when to -State sovereignty. 102 FOREIGN CONTRACTS. FOREIGN CONTEACTS. Sec. 8. The municipal law of nations and States of our Union is allowed an extra territorial effect, by national comity, in relation to foreign contracts. As the law of the place of contract, or of the place where, by the terms of it, it is to be performed, enters into a foreign contract as part and parcel of it, and its governing effect is necessary to a just enforcement of it, it is a general rule of public law, adopted by national comity, that the lex loci contractus, or the law of the place of performance fixed by it, governs, in adjudica- tions on foreign contracts, as to the capacities of the parties to contract, and as to the form, force and effect of such contracts, though remedies to enforce them in foreign nations and States of our Union must be according to the lex fori (3 Row. 514. 3 Pet. 77,78. 6 Hill, 526. 19 How. 392. 8 Pet. 372. 13 lb. 77, 78, 378, 379, 520. 6 lb. 172. 1 How. 28, 33. 16 Shep. B. 206. Wheat. Int. L. P. 2, c. 2, § 7. Story's Confl. L. §§ 260, 263. 4 Ball. 419. 9 How. 413, 414. 8 lb. 464, 465. 9 Pet. 627.) It follows that, if in the country whose law governs the contract it is a mere mortgage or pledge of property, and unaccompanied with a personal liability, no action can be maintained in a foreign court to enforce a personal liability, as none exists. If a contract is good by the law governing it, it is good and enforcible in all countries. (Story's Confl. L. §§ 242, 243, 262. 6 How. 550. 2 Burr. 1079, 1080.) The last two cases show that a marriage, good and legal in one of our States, or in England, or in the place of contract, is valid everywhere, and ought to be so ad- judged in all foreign tribunals, or in the courts of other FOREIGN CONTRACTS. 103 States of our Union, unless the marriage was incestuous, polygamous or against natural law. (10 Met. Mass. JR. 452. 2 Haggard's B. 395, 437.) If a stamp to a contract is not necessary by the lex loci contractus, but is so by the law of the place of performance, still the contract is valid in all countries, as the formalities of instruments are tested by the lex loci contractus. (Story's Gonfi. L. § 318.) That law governs as to the forms, proofs and authentications of foreign con- tracts, (lb. §§ 260, 260 d, 261, 262, 631.) As every nation is the guardian of its citizens, and bound to promote their welfare, national comity does not require a nation or State of our Union to recognise or enforce contracts against good morals, against its policy, or which are prejudicial to its interest or to those of its citizens. (11 Wheat. 261. 7 Paige's Gh. B. 616. 3 Pet 589. 1 Texas B. 203. See last sec. ch. 5. Story's Gonfi,. L. §§ 244, 246, 258, 259.) Polygamy and other like contracts would not be held valid by the tribunals of a Christian nation. If a contract, by the law governing it and the par- ties, becomes discharged by the statute of limitations, a removal of the parties, or either of them, to another country, ought not to revive it, and it is against national comity for a foreign tribunal to revive and enforce such defunct contract. (6 Pet 291. 16/&. 493. 3 lb. 290. 4 Wheat. 207.) The interpretation of foreign contracts must be ac- cording to the laws and customs of the place of con- tract, unless it is to be performed in another nation or State of our Union. (13 Pet. 77, 78. 5 How. 315. 6 Paige's Gh. B. 627. Story's Gonfi. L. §§ 270, 272, 276, 278. 9 Pel 627.) In Hyde vs. Goodenough, (3 Gomst. B. 269,) the New- York Court of Appeals held, that it is a general rule of 104 FOREIGN CONTRACTS. international law that the rights of parties to a contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be per- formed. And that if a contract be made in one State or country, and it appears upon its face that it is to be per- formed in another, it will be presumed that the contract was entered into with reference to the laws of the latter, and those laws will be resorted to in ascertaining the va- lidity, obligation and effect of the contract. The general rule, however, has its exceptions ; one of which is, that where a contract is declared void by the law of the State or country where it is made, it cannot be enforced as a valid contract in any other, though by its terms it was to have been performed there. If the contract is void and illegal at the place of contract, it must, by true comity, be so held by the courts of the country where it is paya- ble or performable, even though it would have been valid if made there. Such a contract, illegal and void by the lex loci, by comity ought to be so adjudged in all foreign countries by their tribunals. (lb. 270. Wheat. Int. L. P. 2, c. 2, §§ 6—9, 12. 14 How. 429.) As to marriage contracts, if legal by the lex loci, as a general rule they are valid, though by the law of the domicil of the parties they might be invalid, as if one of the parties by the latter law were prohibited from mar- rying. This arises from the principle of public law that per- sonal disabilities are confined to the territory of the power inflicting them, and that they have no extra territorial effect. (2 Blatchford's R. 59.) But no nation is bound by comity to recognise any foreign marriage contracts of an incestuous or polygamous character, as the Gospel is the basis of national comity, and it rests upon the Golden rule. Huberus and Wheaton lay down this as the true rule of public law. (Wheat. Int. L. P. 2, c. 2, §§ 7, 8.) FOEEIGN CONTRACTS. 105 Marriage is a civil contract. (10 How. 174. 18 lb. 349. 8 Paige's Gh. R. 574. 19 How. 254.) The actual marriage may be inferred from acknowledgment of the relation by the parties living as man and wife, and the usual facts attending the relation. (lb.) In Curtis vs. Leavitt, (15 N. T. Ap. R. 1 Smith, 9, 91, 230, 296,) it was held by the New- York Court of Appeals that bonds of a New- York moneyed corporation, payable in sterling money in London, and made for sale there, were English contracts, and being valid by British law, were enforcible in the State of New- York, as they were not usurious by British laws. In the same case, that court held that a loan of money by a negotiation, partly made in Philadelphia of banks there, and partly in New- York, the money being payable at a Philadelphia bank, that the contract was a Pennsylvania one, and governed by the law of that State, and that the contract would be enforced or invalidated agreeably to that law. In Arendell vs. Arendell, (10 Ann. Louis. R. 566,) the Supreme Court of Louisiana held, that where parties were married in one State, intending to reside in another, and actually fixing their domicil in the latter State, the laws of the latter govern as to property rights arising from such marriage, and not the laws of the place of mar- riage. The same court so held in Percy vs. Percy. (9 lb. 185.) In Brook vs. Brook, A. D. 1857, (3 Smale& Gijford Gh. R. 481, 524,) it was held that a marriage between an English- man and, Englishwoman, the sister of his former wife, con- tracted in Denmark, where such a marriage was valid by the Danish law, was illegal and void, because the British statute forbade all marriages between persons domiciled in England holding such a relation. This decision rests sim- ply on the British statute and not on international law. In Thatcher vs. Morris, (1 Kernaris R. 438, 439,) the 106 FOKEIGN CONTKACTS. New- York Coutt of Appeals held, that all dealings in re- spect to lotteries are unlawful in the State of New- York, but that, as lotteries were for a long period legal there, that they would not be deemed founded on moral turpi- tude, and that inter-state comity required that the courts of New- York should enforce foreign lottery contracts if valid in the place of contract and of performance, and that a party suing on such contracts might aver and prove such foreign law, and that it was incumbent on him so to do in order to recover on such contracts, where, by the lex fori, such contracts were illegal and void. In Merchants' Bank of New-York vs. Spalding, (5 Seld. R 53, 54,) the Court of Appeals held, that the citizens of one State, in making contracts in another, are not charge- able with a knowledge of the laws of such State or coun- try. (See 10 Wend. 75, 78.) In Bank of United States vs. Donnelly, (8 Pet. 362, 372, 373,) the Supreme Court of the United States held, that the legislature of a State, as to the obligation or remedy on contracts, has no binding force beyond its ter- ritorial limits, and that its authority in other States de- pends upon principles of international comity and a sense of justice. That the general principle adopted by civil- ized nations is, that the nature, validity and interpretation of contracts are to be governed by the law of the country where the contracts are made, or are to be performed. But the remedies are to be governed by the laws of the country where the suit is brought, that is, by the lex fori. That the statute of limitations of the lex fori can alone be pleaded, and not that of any other State or country, and that though covenant may be brought on an unsealed contract made there, yet the lex fori governs the form of action and remedy in the tribunals of other States and countries. Hence, an instrument negotiable and suable by the assignee in the place of contract, may be incapa- FOREIGN CONTRACTS TO CONVEY LANDS. 107 ble of negotiability by the lex fori, and if so, the remedy must be in the courts of the State or country where the suit is brought, and must be according to its own laws. That hence, an instrument with a scrawl is considered a sealed one in some States, and in others, as New- York, it is held to be an unsealed one, and must be sued on in New- York as an unsealed paper. The court refer, with approbation, to Andrews vs. Harriott, (4 Cowen y 508,) and to Warren vs. Lynch, (5 Johns. R. 239,) to sup- port this doctrine. FOREIGN MORTGAGE. In Bronson vs. Kinzie, (1 How. 315,) it was held by the Supreme Court of the Union, that where a mortgage on Illinois lands was given to secure a debt payable in New- York, that the laws of Illinois, as they were at the date of the contract, governed the contract as to its effect, its legal and equitable obligation, and that a mortgage savor- ing of realty is governed by the local law, and not of the State where the money was payable. FOREIGN CONTRACTS TO CONVEX LANDS. In the case of Kennett and others, apts. vs. Chambers, resp., decided by the Supreme Court of the United States, (14 How. 38,) a bill was filed in the District Court of the United States for the State of Texas, to enforce specific performance of a contract made in 1836, at Cincinnati, Ohio, by General Chambers, to convey a large tract of land lying in Texas, to Kennett and others, in considera- tion of heavy advances made by them at Cincinnati, to General Chambers, to enable him to raise volunteers to carry on the war of Texan independence against Mexico, with which latter power the United States were at peace, 108 EXCHANGE, USUKY, &c. and then had a treaty of amity and commerce. The United States officially recognised the independence of Texas in 1837, and after the contract and the advances under it. On appeal, the Supreme Court of the United States in this case held, that at the time of the contract, Texas, not having been recognised by our President as a nation, was, as to our government and its citizens, a part of Mexico, and that the contract was a violation of the duties imposed by our treaty with Mexico, of our neu- trality laws, as well as of the obligations of a neutral peaceful government, and was, therefore, illegal and void, and that no court of the United States could enforce it. The court decided that our citizens are parties to the acts and policy of their own government, and that as to them, Texas, in reference to Mexico, became a nation in 1837, when the President officially recognised Texas. That the recognition of Texas was an executive and not a judicial question, and that the courts are bound by the action of the President, to whom the recognition of nations exclu- sively belongs. That the land being situate in Texas, whose law allowed such contracts, could not help the con- tract as it was made in Ohio, in violation of the policy and laws of the United States. The court referred to 4 Or. 272 ; 3 Wheat. 324 ; 9 Moore Eng. Com. PI R 586, and 1 Kent's Com. 116, as sustaining the opinions of the court. This case settles that all advances of money made in the United States, in violation of our neutrality laws, are illegal, as well as contracts founded on them, and that no court in the United States will enforce any right founded on such void contracts. EXCHANGE, USURT, &C. In Andrews vs. Pond, (13 Pet. 77,) the Supreme Court of the United States say that, as between our States, FOREIGN GUARANTIES. 109 "there is no rule of law fixing the rate which may be lawfully charged for exchange." The same rule is true as to exchange between nations. Hence, if a sum charged is really meant for exchange, and not as a cover for usury, it depends on the agree- ment of the parties, in the absence of any positive law. The . court held, that if a bill be drawn in one State, payable in another, with a sum added for difference of exchange nominally, but really for usury, in violation of the lex loci contractus, and exceeding the legal rate of in- terest in both States for the time of forbearance, the transaction is governed by the law of the place of con- tract, and if void by that law, it must be so held in every State and in every court. And the court say, (p. 78,) that the lex loci contractus governs, though, by the terms of the agreement, security is to be given for the debt on lands in another State. (See, also, 10 Wheat. 383.) FOREIGN GUARANTIES. If a guaranty is signed in one country, addressed to a merchant in a foreign State or nation, and to be there executed, the law of the latter governs its construction and effect. (1 How. 182.) The rule is the same among the States of our Union. {lb.) In Boyle vs. Turner, et al., (6 Pet. 641,) a vessel of Boyle, of Baltimore, in Maryland, appears to have been attached in New-Orleans for a debt, and his friends and consignees, Zacharie & Turner, became surety for the re- covery, and released the vessel, and Boyle, at Baltimore, wrote to them that he would indemnify them fully, and ratified their act. They had to pay a large sum at New- York for their liability. Boyle took advantage of a 110 FOEMALITIES OF FOREIGN CONTRACTS. Maryland insolvent law, and was discharged. Afterwards they obtained in Maryland, by confession, a judgment for the amount, with a memorandum, by agreement made part of the record, that it was subject "to the legal operation of the defendant's discharge under the laws of Maryland." It was held by the Supreme Court of the Union, that it was a Louisiana contract, and not affected at all by the Maryland discharge. That the advances being made by Boyle's authority at New-Orleans, that was the place of payment, (pp. 644, 645.) If a judgment is obtained in one State on a contract made in another, and between two of its citizens, and the debtor is afterwards discharged in the latter, the Supreme Court of Connecticut has held that the discharge does not affect the judgment, and that execution may be issued on it. (3 Conn. B. 523.) FORMALITIES OF FOREIGN CONTRACTS. In transferring or assigning foreign notes, bills and contracts, the formalities of the lex loci contractus are essential to pass title. (Story's Oonfl. L. § 353 a.) As to foreign bills and notes, the time, place and mode of protest must be according to the law of the place of payment. But as to the necessity of demand and pro- test, and when notice thereof may be omitted, these de- pend on the lex loci contractus, as part of the agreement of the parties. (lb. §§ 360, 361.) Bills of exchange, drawn by nation upon nation, are not subject to the law-merchant. (5 How. 382, 400.) Contracts relating to realty, to the assumption of the debts of a third person, and other things, are in . some countries required to be in writing to be valid. In others, contracts of the same sort may be allowed to be FOEMALITIES OF FOREIGN CONTRACTS. HI made by parol. Any personal contract, good by the lex loci contractus, is generally valid everywhere, by national comity. (Story's Confl. L. § 262.) If injuries be done in one State to the person or per- sonal property of any person, and a suit for the wrong be brought in another State, the law of the former gov- erns as to the right of the case, and the lex fori as to the remedy. (1 How. 26. 8 Pet. 361.) All actions for injuries to realty must be brought in the State or nation where it lies. (6 Hill, 82, 86, 87.) All persons, as a general rule, not specially disabled by the lex fori, may of right sue in foreign courts. The same is true of sovereigns and foreign corporations. (13 Pet. R. 519, 588—590. 8 Paige's R. 527. 2 Hill's R. 159. Story's Confl. L. § 565.) Sec. 9. Actions personal by the common law may be brought in the courts of any nation where the. defendant can be found, and prosecuted, but real or mixed actions must be instituted in the forum rei sites. (6 HilVsR. 82, 86. Story's Confl. L. § 554.) The acquisition of rights in real property are. prescribed and regulated by the laws of the country where the pro- perty is situated. This exclusive control of realty is an essential element of sovereignty. No other community can interfere with the method by which real property may be acquired or held, the duration or quantity of in- terest in it, or the conditions to which the enjoyment is subject; but a contract, deed or mortgage of realty abroad, may, nevertheless, be within the reach of the laws of the State in which the instrument was executed, or the party to it is found and personally served with process there. (23 Barb. 79, 80.. 16 Pet. 57.) In Silliman & Co. vs. White Rock Mining Company, (3 Wood & Minott's R. 541 — 551,) it was decided by the Circuit Court of the United States for Rhode Island, that 112 FORMALITIES OF FOREIGN CONTRACTS. "where the centre of the Pawcatuck River was the divid- ing line between the States of Connecticut and Rhode Island, and of certain mill-owners on the opposite banks, and a common dam was built across the river for equal common use, and those in Rhode Island constructed a canal to divert the water, so that the Connecticut mill- owners, by diversion of part of the water, lost its use at a second and lower dam, an action would lie for such in- jury. That the using of either party of more than his half of the water, to the injury of the "opposite owners, gave a right of action for damages sustained, (pp. 543, 544.) That an interest in the opposite owners exists in the water, and its use beyond the centre of the stream. That this right may be injured. That another injury may be to the mills, to which the water right is appur- tenant. The court held that the wrong-doer may be sued where the mills are situated, if they are injured by an act in another State or country, (p s 545 ; 9 Pick. 61,) though the law of the place where the real estate is injured gov- erns in actions for damages. The court held that the laws and tribunals of Rhode Island might also be resorted to, civilly and criminally, in this case, for the nuisance, (p. 546.) The court say that there are crimes, as well as civil suits, which may be prosecuted in two States. Such, say the court, is the case of theft continued from one State to another, or the felonious intent indicated in both, or a burglary in one State being a larceny in another, where the property was removed, but no house broken into. So, if one fires a gun in one State, which kills an indi- vidual in another State, there may be the offence of using a deadly weapon in the first State, and committing mur- der by the killing in the second State. Again, there is sometimes an election in which to prosecute. Thus, if a LEX FORI. 113 blow be given in one county, and death follows in another, an appeal of murder lies in either. (Dyer, 40. 5 Coke, 426. 7 lb. 59.) If two acts are necessary to constitute an offence, and one is done in one county and one in another, the prose- cution may be in either. The court granted an injunction to stop the diversion of water by the canal. LEX FORI. The lex fori governs as to remedies. (9 How. 413. 6 Wend. 475. 2 Conn. 626. 4 lb. 526. 8 Pet. 361. 13 lb. 312. 2 Mason, 151. 3 lb. 88. 3 Johns. R. 263. 3 Story on Const. § 1379.) The question as to what laws relate to the remedy, and what enactments of State legis- latures impair an existing contract, and violate the pro- hibition of the national constitution, is often a matter of difficulty. The decisions of the Supreme Court of the United States have settled, that where a State law exempts from the lien specially granted by contract any of the property pledged or mortgaged, or changes the effect of the con- tract as to its obligation, the State law impairs the contract and is void. So a stop law, that deprives a party of his legal remedy altogether for an unusual period, and thus defeats for a time his rights, and stops the course of jus- tice and the enforcement of an existing contract, is also a violation of the Constitution, and void. (3 Story on Const. §§1375, 1379.) But that court has decided that State laws regulating remedies, leaving the obligation of contracts in full force, are legal. (lb.) The Supreme Court of the Union has decided that the lex fori governs the remedy, and that State recording laws and State stat- utes of limitations may destroy existing rights where there is opportunity of complying with them ; that State 8 114 LEX FOEI. non-imprisonment laws relate to the remedy, and are legal, and that a right perfected by adverse possession of per- sonalty in one State, remains a perfect title in another ; and from analogy and upon principle, it would seem that, where there is no lien expressly stipulated by contract, upon household property, real and personal, and the tools of a man's trade, and State laws exempt them to a limited sum or quantity, such laws ought to be held a regulation of the remedy, and not a violation of the obligation of the contract. Such laws, like the abolition of imprisonment for debt, flow from the benign principles of Christianity, and seem to relate to the remedy, and to be sustained by sound public policy and the spirit of the age. In Morse vs. Goold, (1 Kernaris N. Y. B. 288—293,) it was held by the New- York Court of Appeals, that a State law, exempting certain property of a debtor from execution, applied to existing as well as future judgments, and was a constitutional law, and did not affect the con- tract of the parties ; but that the act in question, securing certain property to defendants and their families, was a law regulating remedies merely, like statutes of limitations and laws abolishing imprisonment for debt. The court held, that as the creditor had no lien on the property by execution, no lien or contract right was taken from the creditor, and that the case was clearly distinguishable from Bronson vs. Kenzie, (1 How. U. S. E. 411,) and McCrack- en vs. Hay ward, (2 lb. 608.) The court approved the doctrine of the Supreme Court of the United States in the case of Bronson vs. Kenzie, that a legislature may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of a mechanic, or articles of neces- sity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Upon this ground, the act of the State of New- York abolishing the right of distress for rent, has been held LEX FORI. 115 legal and constitutional, as regulating the remedy. Upon principle, the legislatures of our States may exempt home- steads, and such books, implements and articles as may be judged necessary to preserve the existence of families and insure their comfortable sustenance. The extent of such exemptions is, a matter depending wholly on legislative discretion, and it cannot be reviewed by the courts unless the contract is impaired, some existing lien destroyed, or the creditor's rights are substantially taken away. Where remedies are changed, though creditors may be affected more or less, the law will be valid, subject to con- stitutional limitations. If this were not so, the old bar- barous system of imprisonment for debt, the relict of an- cient barbarism, handed down to our republic from Roman despotism and European tyranny, would still cover our land with oppression. American jurisprudence, instinct with the benign principles of our free and humane insti- tutions, has a power of improvement, and their course is excelsior — it is onward. In Bard vs. Poole, (2 Kernan, 495,) the New- York Court of Appeals held, that a Maryland corporation hav- ing power, by their charter, to borrow money in the State of New- York, and to mortgage land in that State to secure it, might legally make a loan there at seven per cent, and mortgage land there to pay it, though the Maryland legal rate of interest was six per eent., and that a mortgage to secure such a loan on New- York lands owned by the com- pany, was not usurious, but legal and valid. That the law of the place where the contract was made and to be performed governed the contract, as the company had the legal power to make it, and that the usury law of Mary- land did not govern the case. A bond and mortgage made and executed in a State or country where the interest is seven per cent.,^ payable to a man in another country, where interest is five per 116 INTEREST ON ADVANCES. cent., and where the money is advanced, the bond and mortgage bearing seven per cent, interest, and the' mort- gage being on land in the seven per cent, country, are valid, on the ground that they were made in reference to the country where the mortgaged premises were situate. (1 How. 315. 6 Paige's Oh. B. 627. Story's Gonfl. L. §§ 287 a, 293 b, c.) So if a loan be made in a 'State where the interest is seven per cent., on a note carrying interest at eight per cent, payable in a State where that is the lawful interest, the contract is valid. (13 Pet. 73, 78.) If a contract to loan money is made in a State where the legal interest is six per cent., at higher rate of interest, and no place of payment stated, and a mortgage is given on lands in another State, if the contract of loan is void for usury by the lex loci contractus, it will be void in all other States. (10 Wheat. 283, 369, 370, 381. Story's Gonfl. L. § 287 a.) If a usurious loan be made in one State, and a new security be afterwards given in another State for it, less the usury purging it from it, the new security will be valid. (10 Wheat 392.) If to an existing debt on taking a new security there be added, under pretence of exchange between States or nations, a sum for usury, making void the bill by the lex loci contractus, it is void everywhere. (13 Pet. 16.) INTEREST ON ADVANCES. If a merchant in one country requests a merchant -in another to buy goods for him, and he does so, the money must be replaced at the place where the money or security was advanced, and at the legal rate of interest there. {Story's Gonfl. L. § 287. 6 Pet. 635, 641.) So, if a merchant or other person in one State advances there, by order of one residing in another State or nation, INTEEEST ON ADVANCES. 117 money, it is to be repaid where advanced, with the interest allowed there by law. (3 Wheat 146.) In bonds to the United States, they are deemed de- livered at the seat of government, and carry interest accordingly. (6 Pet. 172. 7 lb. 435.) The general rule as to interest on contracts carrying interest is, that the law of the place of payment or per- formance governs. (13 Pet. 76. Story's Gonjl. L. § 291. 2 Kernaris N. T. App. R. 495. 1 Paige's Gh. R. 220, 225. 3 Wheat. 146. 6 Hill R. 528. 17 Johns. R 518.) If a merchant in one country consigns goods to a mer- chant in another, to sell there, or if the contract of con- signment be so made in the country of the consignor, with a view to a sale in the country of the consignee, in such case, if the sale be made as agreed, and the con- signee fail to remit the proceeds to the consignor as directed, the law of the country of the consignee governs as to the contract, and its rate of interest will be allowed. (17 Johns. R. 511, 518.) When a contract is made in one country and payable in another, and the law of the latter allows a depreciated paper currency to be a lawful tender, it is a question of fact for a jury to say, whether the contract meant specie or such legalized paper currency. (4 Dall. 325.) In Cook vs. Litchfield, (5 Seidell's R. 290,) it was held, by the New- York Court of Appeals, that a note made, dated and endorsed by an accommodation endorser in Michigan, and which was payable in New- York, and was there negotiated by the maker, was to be deemed a con- tract made in New-York by the maker and endorser. In Musson & Hall vs. Lake, (4 How. 262 ; 16 Curtis' Beds. S. U. S. 103,) the Supreme Court of the United States held, that where the acceptor lived in Louisiana, and the endorser in Mississippi, the contract of the latter was governed by the law of Mississippi ; and that as it 118 BILLS OF EXCHANGE, wherever made, must conform, of necessity, to the law of its locality. Sec. 43. The doctrine of national comity applies with increased force among the States of our Union, which are qualified sovereignties forming one nation. MARRIAGE AND DIVORCE. Sec. 44. Matrimony is a high, holy and continuing mutual contract based upon the law of God, but it is simply a contract of the parties, for the violation of which different States afford relief according to their respective laws. A marriage valid and legal according to the lex loci contractus is, by comity, good in all other States and nations. (6 How. 550. 8 Paige's Gh. R. 574, 580. 13 Pick R. 66—68. 4 Barb. 8. G. R. 301.) 176 MARKIAGE AND DIVORCE. A marriage contract made in a State confers originally on the husband and wife property rights, according to the lex loci contractus, as to all movable and immovable pro- perty within its jurisdiction, and as to all movable pro- perty wherever it is situated, unless the law of the place where it is located shall otherwise provide. (3 Johns. Ch. B. 190, 211. 13 Pick. B. 66—68. 4 Barb. 301.) As to realty, the property effect of a marriage or ante- nuptial contract is governed by the law of its locality. {Story's Confl. L. § 372, c. 428.) If an ante-nuptial contract be made regulating the rights of the husband and wife in each other's property, duly executed accord- ing to the law of the lex loci contractus, it will be valid, by comity, in all other States, as to real and personal pro- perty situated there, except so far as it conflicts with the laws of such other States. Neither an ante-nuptial con- tract, or any other act, can alien, or create an interest in, or lien upon realty, unless the contract as to form and effect is allowed by the lex rei sitm, and that, law alone, in all cases, governs dispositions of and liens upon realty. (17 Martin's Louis. B. 569. 20 Johns. 267. Story's Confl. L. 2d ed. §§ 158, 189, 454.) We have shown that contracts made in one State, with reference to or to be performed in another State or nation, are, by comity, governed by the laws of the latter as a general principle. (Le Breton vs. Miles, 8 Paige's Ch. B. 265. 3 Martin's Louis. B. 60, 73.) On this ground the Louisiana tribunals hold that a marriage contracted in one State with a view to a permanent residence of the parties in another State, followed in a reasonable time by a domicil there, is governed, as to its property effect, by the laws of the latter State. (lb. Story's Confl. L. § 180.) This seems right according to the general doc- trine of the law of contracts. In cases of marriage without any ante-nuptial contract in a State, the lex loci DIVORCE. 177 contractus must be deemed the law of the contract, prima facie, as in other cases, and the onus probandi would rest upon the party asserting the contrary. In the State of New- York, by acts of April 7, 1848, and April 11, 1849, the real and personal property of married women is se- cured to their separate use. If a marriage was contracted in New- York, or in any State having the like law or policy, it seems that an ante-nuptial contract in writing, duly executed, declaring a different regulation of the rights of the parties, ought alone to be received to take the marriage contract out of the operation of the lex loci contractus. (Story's Gonfi. L. § 130 a. 13 Pet. 65.) DIVORCE. For violations of the marriage contract any court of any State or nation having jurisdiction of the parties, by the personal service of process, within its territory, on the offending husband or wife, at the suit of the other, may grant relief, by divorce or otherwise, according to its laws. (Greenl. 140. 12 Pet. 527, 623. 13 Wend. 409. Post, § 44.) And a bona fide domicil of the parties in any State of our Union is held to give jurisdiction to its courts to grant relief in such cases, according to its laws. (Story' 1 s Gonfi. L. 191, § 230 a.) If parties domiciled in a State go to another tempora- rily, merely to get a divorce, in fraud of the policy and law of the former, the courts of the State of the true domicil will not give effect to a foreign divorce so ob- tained, and much less will they regard a divorce obtained ex parte by either husband or wife by a foreign legisla- tive or judicial action. (lb. 13 Wend. 409. 8 Johns. 194. 1 lb. 431. 13 lb. 204. 15 lb. 121.) In all cases of divorce granted in a State, its legislature 12 178 DIVOECE. or court granting it, not having jurisdiction by due per- sonal service of process or by the actual domicil of both parties, the tribunals of other States of our Union are not bound by comity to enforce such decrees, but they ought to treat them as void for want of jurisdiction and against sound public policy. (lb. 11 How. 174.) The Constitution of the Union, art. 4, § 1, requiring full faith and credit to be given in the States of our Union to the records and judicial proceedings of each other, has no bearing on the question of jurisdiction, and unless it appears by the record of a State court or legislature, duly authenticated, according to the act of Congress, that jurisdiction existed over the parties and subject, the courts of another State are not bound to give effect to such judgment, act or decree. (Borden vs. Fitch, 15 Johns. 121. Story's Gonfl. L. §§ 229 a, 230 a.) The questions of want of jurisdiction and fraud in ob- taining a judgment or decree, are open in our State courts when suits are brought or rights asserted under judgments and decrees of other States of our Union. (lb. lb. §§ 592, 609.) If actual personal jurisdiction over both husband and wife, from domicil or personal service of process within a State, is obtained by its judicial tribunals, they may, ac- cording to its laws, make decrees of divorce that, by na- tional comity, ought to be carried into effect by other na- tions and other States of our Union. Such valid decrees of courts or tribunals in our Union having such jurisdic- tion of both parties are legal, and bind the personal and property rights of the parties according to their tenor and effect in all our States and territories. (lb. 13 Pet. 326. 12 lb. 623. 1 U. S. St L. 122. lb. 298. 6 Wheat. 120.) The law of the lex fori governs as to the grounds, terms and effect of a decree of divorce, CHANGE OF DOMICIL. 179 or other decree founded on a violation of the marriage contract. (Story's Gonfi. L. § 23 a.) State legislatures, in certain cases, are vested with ju- dicial powers by their respective State constitutions. (2 Pet. 413. These bodies, acting as judicial tribunals, are bound by the principles above stated, and their acts and decrees of divorce or separation will be governed by them. (Post, §44.) If a State legislature, not acting judicially, grants a di- vorce on the application of either husband or wife without the consent of the other, such act, on principle, seems void. (9 How. 348. 4 Mill, 145, 146. 11 Row. 174 4 Wheat. 695, 696.) CHANGE OF DOMICIL. In case of change of domicil where there is no ante- nuptial contract controlling the property, the law of the new matrimonial domicil regulates the disposition of the property acquired there by husband or wife, or held by either of them at death. (17 Marten's; Louis. M. 601. Story's Gonfl. L. 176.) This will be true as to real pro- perty within the State of the new domicil, and as to per- sonalty in other States, except so far as the rule conflicts with the laws of other States where the property is located. • As to the marriage contract — the basis of families — legislatures and tribunals cannot be too careful in med- dling with it. Legislative divorces seem highly excep- tionable, legally and morally, as well as upon principles of public policy. 180 IN EEM. FOREIGN JUDGMENTS AND DECEEE8. Sec. 45. As a general rule of international law and comity, a definitive sentence of a court or tribunal, having jurisdiction of the parties and subject of litigation, regu- larly pronounced, ought to be received as final and just, and to be executed in all other countries in the mode prescribed by the lex fori. ( Vattel, B. 2, c. 7, § 84. 9 How. 350, 413, 414. 4 Coweris B. 520. 13 Pet. 312. Story's Confl. L. § 585.) But the question of the jurisdiction of a foreign court, as well as whether the decree is impeachable for fraud, is subject to examination, and if the court had not jurisdic- tion, or the proceeding is fraudulent, a foreign judgment or decree will be disregarded. (Rose vs. Himely, 4 Crunch, 241. Story's Confl. L. 2d ed. §§ 592, 609. 2 Kernaris B. 165. 14 How. 339. 3 lb. 750. 1 Pet. 340. 13 lb. 511.) All decisions relating to land or immovables made in the forum rei sitce are final and conclusive, in all other tribunals, upon the parties duly brought before the origi- nal court, as to all questions of right and title therein. (Story's Confl. L. 2d ed. §§ 545, 551, 591. 16 Pet. 493.) Decisions of foreign courts as to realty are void. (/&.) This is the rule among the States of our Union, pro- vided they do not contravene the provisions of the Con- stitution of the Union, or any treaty of the United States, or an act of Congress. (1 U. S. St. L. p. 92, § 34. 16 Pet. 493.) IN REM. A judgment of a competent court of any State or na- tion proceeding in rem against property within its juris- IN PERSONAM. 181 diction, decreeing its conveyance, sale, condemnation, ac- quittal or other act is, as a general rule, valid in all foreign tribunals. (Story's Confi. L. § 592. 10 Wheat. R. 473.) Such are the judgments of courts of admiralty, of the Exchequer in England, of our State and other courts. Proceedings by attachment by creditors are pro- ceedings in rem. This last process is called attachment, garnishment or trustee process. (Story's Confi. L. § 592 a, p. 461, § 549. 4 Cow. R. 521. 20 Johns. R. 229.) No- tices of all proceedings in rem should be given according to law. (4 Pet. 475.) In those proceedings in rem by attachment for debts the sentence only binds the property seized, unless the debtor appears to the proceedings in due form so as to make it truly a proceeding in personam as well as in rem. Then the judgment will be enforced by foreign tribunals as one in personam. (9 East R. 192. 8 Johns. R. 194. 4 Cow. §§ 23, 24. Story's Confi. L. § 49. 6 Wheat. 129, §§ 546, 549, 592 a.) If there is no jurisdiction of the person it may still be valid as a judgment in rem only. (lb. 15 Johns. R. 142. 8 lb. 194,) though as a judg- ment in personam would be void. (9 How. 348, 350.) IN PERSONAM. It is a generally conceded rule that judgments in per- sonam are prima facie evidence to sustain an action, and are to be deemed right until the contrary is shown. (Story's Confi. L. §§ 603, 608. 8 Johns. R. 173. 4 Cow. 523.) They may be avoided if founded in fraud, or if the decree was made by a court not having jurisdiction of the cause. (lb.) In case a foreign court in its decision misinterprets a contract, or the law of a foreign State where a contract was made, the judgment will not be 182 IN PERSONAM. regarded as binding in the courts of the country of the contract. (Story's Gonfi. L. § 269. 4 Cow, B. 523.) In Novelli vs. Rossi, (2 Barn. & Adolph. 757,) it was held by an English court that a prior French decree dis- charging a party from liability by a mistake of British law, was no bar to a suit in England to enforce the plain- tiff's right, as it was founded on a transaction subject to English law. In the United States, judgments of each State court, duly obtained, being by the Constitution entitled to the same faith and credit in every other State, are, as to their general validity, made domestic judgments. (Story's Confl. L. § 609. 13 Pet. 312, 326. 10 Wheat. B. 1.) But the jurisdiction of the court pronouncing the judgment may still be inquired into by another State court in which such decree is sought to be enforced. The authority of the State or nation, or of their tribunals, to take jurisdic- tion of the parties or of the subject, and the question of jurisdiction or of fraud in obtaining the judgment, may be investigated and must be decided in favor of their validity before the judgments of the courts of such State or nation will be carried into effect. (lb. 8 Johns. B. 173. 4 Cow. B. 523. 15 Johns. B. 142. 11 How. 174.) The jurisdiction and the regularity of the proceedings in rem of a foreign Court of Admiralty or other court, are open to examination in any tribunal of another coun- try where a foreign sentence may be insisted on as chang- ing the property. The same rule applies to judgments in personam. (Story's Confl. L. §§ 587 — 590. 4 Cow. B. 523.) Judge Story, in his Commentaries on the Conflict of Laws, p. 492, § 586, there lays down the rule as to juris- diction : "In order, however, to found a proper ground of recognition of any foreign judgment in another coun- try, it is indispensable to establish that the court pro- IN PERSONAM. 183 nouncing judgment should have a lawful jurisdiction over the cause, over the thing and over the parties. If the juris- diction fails as to either, it is (as "we have already seen) treated as a mere nullity, having no obligation, and enti- tled to no respect beyond the domestic tribunals. And this is equally true, whether the proceeding be in rem or in personam, or in personam and also in rem." (See, also, lb. p. 449, § 539. See, also, 14 Pet. 75. 9 How. 348, 350.) In accordance with this principle, if a vessel and cargo be condemned where no capture had been made by a bel- ligerent ; or if the sentence were pronounced by a court of the belligerent sitting in any country except the State to which it belonged, or that of an ally in the war ; or if a vessel or cargo were condemned that was not within the territorial limits of the belligerent or such ally, or in the power of belligerent captors, though carried into a neutral port ; in all these cases the sentence would be void for want of jurisdiction, and the decree would not affect the owner's title. (4 Crunch, 293. Wheat. Hist. L. N. 428, 429. Vattel, 6th Am. ed. 166, and n. 107. 8 Term B. 270—272, n. a. 1 Bob. B. 115, ch. 10, § 9 ; ch. 13, § 4 d, 41, 42, 72. Story's Confl. L. §§ 539, 586, 587, 588.) Where a judgment or decree is made by a court of general jurisdiction, and the want of jurisdiction is not apparent on the face of the record, the proceeding is void- able only, and can only be set aside by proving the facts necessary to invalidate it. In courts of limited or special jurisdiction the facts necessary to give jurisdiction over the parties and subject must appear on the record, or it is void. (3 Gomst. 193.) A new tribunal may be erected, or new jurisdiction given to an existing court, to try past offences or existing rights claimed at the passage of the act, and they are not 184 IN PEESONAM. ex post facto, but legal and valid. Such laws are regula- tions of remedies and modes of judicial action, and do not affect existing rights. (11 Pick Mass. R. 32.) If a consular tribunal of a belligerent, acting as a prize court, under the orders of his government, and sitting in a neutral country, condemns a vessel and cargo as lawful prize, and decrees a sale of them, the proceedings are illegal and void, as such courts, by the law of nations, must sit either in the country of the captors or in that of an ally in the war. And such illegal sale would not change the property. In Webster vs. Reis, (11 How. 437, 458—460,) a State law of Iowa authorized suits to be brought against owners of the half-breed lands, by notices published in a newspa- per, without any personal service or attachment of the lands, and the court, without a jury, was empowered to give judgments against the owners of the lands, and on such a judgment the lands were sold on execution ;• the law was held by the Supreme Court of the United States unconstitutional, and the judgment and sale a nullity. In Rathbone vs. Terry, (1 Rhode Island R. by Angell, 73,) it was properly held that a judgment in Connecticut against a citizen of Rhode Island, not personally served with process, was null and void, and formed no ground of action against the defendant. In D'Arcy vs. Ketcham, (11 Sow. 174 — 176,) where there were two joint debtors, one residing in Louisiana and one in the State of New- York, and under a New- York law process was served on the partner there, and a joint judgment taken for plaintiff against both partners, the non-resident not having been served with process, and not appearing, the Supreme Court of the United States decided that such judgment as to the defendant not served was of no effect, and that no nation or State is bound to enforce judgments " merely against the person, IN PERSONAM. 185 "where he has not been served with process nor had a day in court;" that " national comity is never thus extended." The court also, in this case, held that the constitutional provision requiring full faith and credit to be given to the public acts, records and judicial proceedings of the States throughout the Union, had no application, as, by the in- ternational law of the States prior to 1790, no judgment or decree could be given in one State so as to bind a citi- zen of another, unless the defendant had been served with process, or voluntarily appeared to the suit, " because neither the legislative jurisdiction, nor that of courts of justice, had binding force" in other States; and that in the courts of other States such judgments in personam were held void, and that the national Constitution had not changed this rule of international or inter-state law. This case seems to decide that full faith and credit in our Union is to be given only to valid decrees and judg- ments. A State law allowing a divorce ex parte, with no juris- diction of the defendant, will protect a marriage, pursuant to its laws, from penal consequences, though it may be entitled to no extra territorial effect, and may be void as a law infringing the marriage contract. (15 Wend. 131. 9 lb. 379. 4 Wheat. 695, 696.) In the case of Glover & Campbell vs. Porter, (12 Mis- souri B. 498, 499,) the Supreme Court of that State decided that a statute of Missouri of 1835 declares mar- riage a civil contract, and that the legislature had no power to pass a law to dissolve a marriage. The court said, that to sanction such a law interfering with the con- tract would be scarcely less exceptionable, upon the score of public justice, than it has heretofore been deemed to be incompatible with public policy and the constitutional distinction of the powers of government. In England and all the States of our Union marriage is 186 INVALIDITY OP DECREES, &c. held to be a civil contract, and it is difficult to see why it is not within the protecting clause of the national Consti- tution prohibiting the States from passing laws impairing the obligation of contracts. INVALIDITY OF DECREES, JUDGMENTS, &C. By the law of nations, a judgment or decree of a foreign court still in force there, where the tribunal had jurisdiction of the parties and the subject-matter, as a general rule will be held valid, by national comity, in a foreign tribunal, unless the decision has been made on a mistake of the lex fori, or appears to be unjust. In such case the mistake or injustice will be corrected. (Wheat. Hist. L. N. 196—198.) In our Union, where a State court or a territorial or other court or tribunal had jurisdiction of the parties and the subject-matter decided, there being an actual service of process on the defendant within the limits of the State or territorial jurisdiction, a judgment, or decree, or deci- sion unreversed or unsatisfied, is valid and conclusive in all courts of the Union. (3 Wheat 234. 4 Pet. 472. Story's Gonfl. L. § 609. 21 Wend, 302, and other cases cited in this section.) All judgments, decrees and adjudications of any court or tribunal may be shown in any court, either of the same country or in any foreign nation, or in any State or terri- tory of our Union, to be void : f 1. By reason of a want of jurisdiction of the parties ; 2. Of the subject-matter decided; or, 3d. Of fraud in procuring it. (Elliot vs. Piersol, 1 Pet. 340. Story's Gonfl. L. § 609. Taylor vs. Bryden, 8 Johns. 173, 177. 2 Johns. Gh. B. 512. 20 Wend. 265. 4 Selderfs N. T. Ap. B. 254. 5 Paige's Gh. B. 305, 306, and cases there cited. 19 Johns. 41. 4 Pet. 471, 472. 8 How. 255, 256. 9 lb. 349, 350. 11 lb. 174.) INVALIDITY OF DECREES, &c. 187 In Shedden vs. Patrick, (18 English L. & Eq. B. 63,) it was held in the House of Lords, on the authority of the Duchess of Kingston's case, that a judgment of the House of Lords, obtained by fraud and collusion, was a nullity, and might be so treated by any court. In the case of Elliot vs. Piersol, the Supreme Court of the United States say, that where a court has jurisdiction, it has a right to decide every question which occurs in the cause ; and whether its decision is correct or other- wise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to. a re- covery sought, even prior to a reversal, in opposition to them. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers. This distinction runs through all the cases on the sub- ject, and it proves that the jurisdiction of any court exercising. authority over a subject may be inquired into in every court, when the proceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings. (4 Pet. 471.) From these well-settled doctrines it is obvious that no court or tribunal can decide the question of its own juris- diction, so as to prevent other courts and tribunals from re-examining that point. Hence, it would seem that where an act of Congress or State law confers on a court, a commissioner or any other tribunal, power to discharge bankrupts or insolvents on their petition, &c, except only such as have made voluntary assignments, preferring cre- ditors, all discharges of persons on their application who can be proved to be within the exception, must, upon principle, be void for want of jurisdiction. In Hollingsworth vs. Barbour, (4 Pet. 475,) the Supreme 188 INVALIDITY OF DECKEES, &c. Court of the Union say that it is an acknowledged gene- ral principle, that judgments and decrees are binding only upon parties and privies. The reason of the rule is founded on the immutable principle of natural justice, that no man's right shall be prejudiced by the judgment or decree of a court, without an opportunity of defending the right. This opportunity is afforded by a citation or notice to ap- pear, actually served ; or constructively, by pursuing such means as the law may, in special cases, regard as equiva- lent to personal service. The course of proceeding in admiralty causes, and some other cases where the proceed- ing is strictly in rem, may be supposed to be exceptions to this rule. They are not properly exceptions ; the law regards the seizure of the thing as constructive notice to the whole world ; and all persons concerned in interest are consid- ered as affected by this constructive notice. But, if these do not form an exception, the exception is confined to cases of the class already noticed, where the proceeding is strictly and properly in rem, and in which the thing condemned is first seized and taken into the custody of the court. The case under consideration is not properly a proceeding in rem ; and a decree in chancery for the conveyance of land has never yet, within my knowledge, been held to come within the principle of proceedings in rem, so far as to dispense with the service of process on the party. There is no seizure or taking into the custody of the court of the land, so as to operate as constructive notice. If a decree is made in one State, dissolving a a contract for sale of lands in another, and a lien is de- creed for advances and a sale ordered, the decree is void as to the lien and sale for want of jurisdiction. (9 Pet. 289 ; 9 Barb. B. 638.) It would seem that in all cases, except proceedings in rem, actual service of process within the territory of a State INVALIDITY OF DECEEES, &c. 189 or nation is necessary to give jurisdiction and make the judg- ment decree or order of a State tribunal valid and blad- ing in personam, beyond the territorial limits of the State or nation. It would follow that any act of a State legis- lature or of Congress, conferring on a tribunal power to make decrees or judgments, except in proceedings in rem, or as to property within their territorial limits, without such due personal service of process, affecting the personal or property rights of persons, would seem to stand con- demned by the spirit of American law. (lb. 4 Hill, 146. 5 Barb. S. G. R. 474. 17 Johns. 203. 4 Barb. 8. C. R. 301, 302. 2 Kernan N. Y. Ap. R. 211, 212.) This doctrine naturally results from the principle of law laid down in the national and most of the State constitu- tions, declaring that a man's rights of person and pro- perty shall not be taken away from him without due pro- cess of law. (lb. 9 How. 348.) In Westervelt, Exr., vs. Gregg, (2 Kernan R. 209, 211, 212,) the New- York Court of Appeals held that the statute of New- York of 1848, vesting in married women the exclusive control of property devised or given to them during coverture, free from all right of their hus- bands, had no effect on legacies to wives then complete by the death of the testators. The court said the consti- tution of the State, by declaring that " no person shall be deprived of life, liberty or property without due process of law," meant due process, in the course of legal pro- ceedings, according to those rules and forms which have been established for the protection of private rights ; that an act of the legislature is not such process. And the court referred with approbation to Taylor vs. Porter, (4 Hill, 140,) as a true exposition of the law. Jurisdiction of a case is acquired in one of two modes, first, as against the person of the defendant, by the per- sonal service of the process, or secondly, by a procedure. 190 INVALIDITY OF DECREES, &c. against the property of the defendant, within the juris- diction of the court. In the latter case, the defendant is not bound by the judgment beyond its effect on the pro- perty judicially or in rem. (9 How. U. 8. E. 336, 348, 349, 350.) In this case, the court held a judgment in personam, in Ohio, founded on a statutory published notice to defendants living in other States, coram non judice and void, and that the proceeding was in rem only. The court say : " No principle is more vital to the admi- nistration of justice, thap that no man shall be condemned in his person or property without notice, and an opportu- nity to make his defence. And every departure from this fundamental rule, by a proceeding in rem, in which a publication of notice is substituted for a service on the party, should be subjected to a strict legal scrutiny. Jurisdiction is not to be assumed and exercised in such cases upon the general ground that the subject-matter of the suit is within the power of the court." The Court of Appeals of New- York, in Dobson vs. Pearce, (2 Kern. 164,) held that a judgment of a court of competent jurisdiction cannot be collaterally impeached for error or irregularity. But that the jurisdiction of the court was always open to inquiry ; and that if it exceeded its jurisdiction, or had not acquired jurisdiction of the parties by the due service of process or by a voluntary ap- pearance, the proceedings were coram non judice, and the judgment void. That the want of jurisdiction is a valid de- fence to an action upon a judgment; and a good answer to it when set up for any purpose. In that case, (p. 165,) the same court declared that fraud and imposition invalidate a judgment, as they do all acts, and that at law and in equity they may be set up in avoidance of a judgment so obtained, and a court, of equity may relieve a party from such a judgment. The Court of Appeals of Kentucky, in Brown vs. Given LEGAL SALES. 191 et al. (4 J. J. Marshall's B. 30,) lays down the true prin- ciple of our American law as held in all our States and in the courts of the United States. The court say : " It is a principle of the common law, founded on justice, and resulting from the objects of all judicial proceedings, that a judgment or judicial order of a court cannot affect any person who is neither party nor privy to it. And it is equally well settled that no person can be considered a party to a judicial proceeding unless be shall have notice of its pendency. In some cases constructive notice is made sufficient, sub modo, by statute." SALES FOR TAXES AND ASSESSMENTS. Sales for assessments and taxes are in the nature of proceedings in rem. In such cases those who claim title to real or personal property, under such proceedings, are bound to prove that all the requirements of the lex loci have been strictly complied with, or the title fails and the transfer will be held void. The statutory notices and acts necessary to a transfer of title must be shown by the claimant as against the owner, agreeable to the local law. (4 Mill, 76—86. 7 Cow. 88. 20 Wend. 241. 6 Wheat. 119. 7 Wend. 148. 9 How. 350. 1 McLean's B. 327. 7 Barb. 8. C. B. 133. 4 Wheat. B. 77. 3 Denio, 598. 1 Comst. B. 79. 2 lb. 66. 19 Wend. 676. 14 Pet. 328. 4 lb. 359.) LEGAL SALES. In all sales by public officers of real estate, the statutory authority must be strictly pursued or they will be void, as being made without authority, unless the local law shall otherwise ordain. (3 Comst. B. 400, 401. 2 lb. 66. 6 Wheat. 125, 126.) 192 LEGAL SALES. The regularity of the sale must appear on the deed or certificate of sale, or it will be void. (6 Wheat 125, 126.) In considering all questions of taxes and assessments, the local law, as fixed by statutes and decisions of the State tribunals, is the general rule followed by the Su- preme Court of the United States. (14 Pet. 328.) While the provisions of all laws which claim to divest rights of property are to be strictly construed, those allowing redemptions from sales are to be liberally ex- pounded, in favor of redemptions by owners and parties interested in the property. (10 Pet. 22, 23.) Though the laws of the different States of our Union are various, the general principles above stated may be considered as the public law of the United States, and as applicable to all such State and other laws, however vari- ous in their character and provisions. Though such taxing and assessment proceedings are not subject to the above rules requiring personal service of process to give jurisdiction, unless the lex loci shall so require ; and although they partake in some degree of the nature of proceedings in rem, the spirit of the great ele- mentary principle of American public law, that no man shall be deprived of his life, liberty or property without due process of law, and an opportunity to protect and defend them before an appropriate, tribunal, should, as far as practicable, be applied by legislative bodies and judi- cial tribunals. All taxes and assessments are apportioned by assessors, commissioners or officers, who act judicially in assessing them, and unless they have a jurisdiction conferred by law, their acts are void. (3 Demo's R. 119. 5 Barb. S. C. B. 611.) In Boswell's Lessee vs. Otis, (9 Sow. 348,) the Supreme Court of the United States decided : 1. That the juris- diction of a court making a decree or giving a judgment, COUETS-MARTIAL AND MARTIAL LAW. 193 may be examined collaterally in any court where a right is set up under it. 2. That jurisdiction is obtained by a court, first, as against the person of the defendant by the service of process ; or secondly, by a procedure against the property of the defendant within the jurisdiction of the court. That in the latter case the defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether the proceed- ings against the property be by attachment or bill in chancery. That a bill for specific performance is ordina- rily a proceeding in rem / and that it is always such when authorized by statute publication of notice and without personal service of process. The court say, (p. 350,) that no principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice, and an opportunity to make his defence. This is an estab- lished principle of American public law. The same court decided in Lessee of Hickey vs. Stewart, (3 Row. 750,) and Williamson vs. Berry, (8 Row. 541, 542,) that the jurisdiction of the highest courts might be collaterally inquired into, and if want of authority to make the decree or give the judgment was proved, the same would be held void. (See 1 Gush. Mass. R. 564. 1 De- mo's R. 75.) COURTS-MARTIAL AND MARTIAL LAW. Courts-martial are tribunals of special and limited juris- diction, and their action must be confined to persons and matters within it, or their judgments and acts will be void for want of authority. In case of illegal assumption of jurisdiction over persons, by habeas corpus they may be liberated from the power of such courts. 13 194 COURTS-MARTIAL AND MARTIAL LAW. All action of courts-martial upon persons or property not subject to and within their legal jurisdiction, and all military control or martial law exerted without authority of law, may be treated as void by the State or national courts having jurisdiction of the case, and relief may be granted by habeas corpus, or by action, or both, as the case may require. (19 Johns. R 7. 20 lb. 343. 10 lb. 328. 12 lb. 257. 9 lb. 239.) In cases where a party not subject to the martial law is deprived of his liberty, the officer or person arresting him, and the commanding officer by whose orders the ar- rest is made, are trespassers, and liable to an action as such. (76. 12 lb. 257.) Where a soldier or other party is by law subject to military control, State courts will not revise its exercise, if agreeable to military usage, and not opposed to any act of Congress. (14 lb. 235.) Where an army of the United States is in a foreign country, and an officer acts in a joint military and civil capacity, cases arise of great difficulty. A temporary conquest by the United States confers on the conqueror the right to supersede the existing law of the conquered country, and to substitute a temporary civil government over the people within the territory. (4 Wheat. 254, ch. 13, § 7.) Now, the laws of the United States are not by such conquest by our army extended over it. (9 How. 618.) Of course no State law is carried there. The government is a military one, under the President of the United States. (lb.) Now, it would seem that any act in accordance with the orders of the President, as represented by the commanding officer ruling the conquered country, must be deemed legal, unless : subsequently annulled by the President, or a superior officer representing him. (lb.) It is difficult to see upon what principle an officer can BANKETJPTCY. 195 be held responsible to a civil action in any tribunal for such governmental acts on person or property, if his acts are previously authorized, or subsequently expressly or impliedly ratified. (9 How. 618. 13 lb. 115. 17 Johns. 52, 53.) Such acts seem to be executive governmental acts regu- lating our foreign relations, and not properly revisory in any of our courts, or those of foreign nations. {lb.) Such temporary rulers ought to respect the law of na- tions, and to administer the municipal law of the con- quered people as far as practicable. These principles seem applicable to all foreign con- quests, and to the military government of the conquerors. BANKRUPTCY. Sec. 46. A bankrupt law of any nation is part of its municipal law, and of course confined in its force, as law, to its own territory or to its own citizens. And a bankrupt discharge of Great Britain, or any other nation, has no effect on the rights of a creditor living in another' country. (McMillan vs. McNeill, 4 Wheat. R 208, 210> 212. Ante, § 11. Ogden vs. Saunders, 12 Wheat. 360, 361.) In the United States a general bankrupt law cannot have any extra-territorial effect. Our State insolvent laws are governed by the same principles, and are confined to the respective territories of the States and to their own citizens. (12 Wheat. 359, 369. Cook vs. Moffatt, 5 How. E. 308, 309. Boyle vs. Zacharie, 6 Pet. 635. 14 lb. 75. 26 Wend. 44.) The discharge of a debtor by a bankrupt or insolvent proceeding is in its nature a judicial act, (76.) and hence, upon general principles, a want of jurisdiction over a foreign creditor must leave his personal rights intact. And a decree discharging his debt in a foreign tribunal is 196 BANKRUPTCY. simply a nullity, for total want of authority, upon princi- ples of international jurisprudence and natural equity. A bankrupt law is an act of sovereignty, and can have no effect extra-territorially but by comity. (1 How. 273.) In the case of Klein, in the Circuit Court of the United States, (1 How. 277 — 281,) Mr. Justice Catron decided : 1. That Congress had power, by the act of 1842, to authorize voluntary as well as involuntary bankrupt- cies ; and that the constitution imposed but one limi- tation on the power of Congress, and that was that such laws should be uniform throughout the United States. 2. That the States of our Union can pass no law affecting debts due a non-resident, because no jurisdiction exists of his person ; they can impair no contract made out of the State, because it was not made subject to the State insol- vent law. 3. The learned judge decided that a discharge in one sovereignty from contracts, is, by the law of nations, not recognised as a discharge in another sovereignty, save on the ground of comity ; that an assignee under the British bankrupt laws is not recognised in this country as owner of the debts of the bankrupt ; and that an attaching creditor, or the government, may disregard a title set up by the foreign assignee. (Harrison vs. Sterry, 5 Oranch, 298.) The States in this respect are foreign to each other, and would be little likely to extend comity to the dis- charges of each other ; from which great confusion might follow, and much ill-will. It is settled, therefore, that our State municipal sove- reignties, in the absence of a United States bankrupt law, may pass State insolvent or bankrupt laws, but that they can only discharge contracts made between their citizens respectively, and subject, by legal intendment, to such law as part of the contract ; both parties to it, as well as the BANKRUPTCY. 197 contract, being subject to the discharging law and the State sovereignty that enacted it, thus giving complete jurisdiction. In our Union, therefore, a State bankrupt or insolvent discharge of a debt due to a non-resident is, as to him, a nullity for want of jurisdiction ; and the assignees could get no title to property in other States as against attach- ing creditors or purchasers there. Comity requires no extra-territorial effect to be given to such laws. The Constitution of the Union prohibits any State from passing any law impairing the obligation of existing con- tracts, and hence all State insolvent laws discharging con- tracts then existing are void, even as to the citizens of the same State, and the federal and State courts are bound to declare them invalid. (Sturges vs. Crowningshield, 4 Wheat. 122, 191. 14 Pet. 75. Ante, § 11. 5 How. 308, 309.) A general United States bankrupt law suspends all State insolvent laws which are inconsistent with its provi- sions. (4 Wheat. 196.) It is a principle of bankrupt laws that the property of the debtor shall be equally distributed ; hence such laws make void all voluntary transfers made by him to give some creditors preferences. The 2d section of our late national bankrupt act of 1842 contained such a provision, and declared such preferences a fraud upon the law, and prevented the granting of a discharge to such fraudulent debtor on his own petition, though it subjected him to be declared a bankrupt for such acts on the petition of a creditor. (1 U. S. St. L. 442. 3 Story's C. G. R. 446, 447. 2 lb. 349. 7 Row. 627. 6 lb. 209. 3 McLean's C. G. R. 186, 595.) •Where the bankrupt act makes the discharge invalid and illegal in consequence of such preferences, the fact of such preferences may be shown collaterally or directly, 198 BANKRUPTCY. and the fact appearing, the discharge will be held void. (lb. 1 GusMng's Mass. B. 571. 8 How. 540, 541. 1 Demo's B. 75. 3 Yeates' Penn. B. 138.) In the United States, national bankrupt laws must, by the constitution, be uniform ; and they may, as in the act of 1842, allow a discharge to a debtor upon a voluntary petition of the debtor or of his creditors. (1 How. 279.) As the title of foreign assignees in bankruptcy to pro- perty in the United States is not recognised, the govern- ment or creditors may attach it as the property of the original debtor. (1 Sow, 279.) The doctrine is also ap- plicable to our States. (Klein's case, 1 lb. 277 — 281.) And where fraudulent preferences have been given by bankrupts in the United States to persons having notice of their insolvency or bankruptcy, the assignees have sued for and recovered the property, as the assignments or conveyances were void. (6 lb. 209. 7 lb. 627.) A creditor, whose debt is not affected by a foreign discharge, or by a proceeding where no jurisdiction over him existed, may, by accepting a dividend or becoming a consenting party to it, discharge his debt. (3 Pet. 411. 26 Wend. 54. 2 Kent's Com. 293, 3d ed. n. Baldwin's C. 0. B. 296. 8 Barn. & Cressw. 477.) As judicial authority is generally co-extensive with legislative power as to territorial jurisdiction over parties or subjects of adjudication, (5 How. 115,) no State court or tribunal of any kind can give any extra-territorial effect to its judgments or decrees, except by acting on the person of the party before the court, in certain cases of equitable cognizance. (Ante, §§ 11, 44. 3 Sandf. Ch. B. 188. 2 Paige's Ch. B. 615. 6 Cranch, 158. 9 How. 348, 350. 4 Hill's B. 145, 146. 5 Barb. S. G B. 47 4, 484.) In Oakley vs. Bennett, (11 How. 44,) the Supreme BANKBTJPTCY. 199 Court of the United States held, that though the rule is otherwise in England, " a statutory conveyance of pro- perty cannot strictly operate beyond the local jurisdic- tion. Any effect which may be given to it beyond this does not depend upon international law, but the principle of comity; and national comity does not require any government to give effect to such assignment when it shall impair the remedies or lessen the securities of its own citizens. And this is the prevailing doctrine in this country. A proceeding in rem against the property of a foreign bankrupt, under our local laws, may be maintained by creditors, notwithstanding the foreign assignment." In this case, an assignee of an American bankrupt claimed land in Texas belonging to the bankrupt, that country being, at the time of the decree of bankruptcy, a foreign nation, but the court held, that the "act of Congress could have no extra-territorial effect ; that Texas was an independent republic at the time of the decree in bank- ruptcy, and, consequently, no claim under it, even as re- gards personal property in that republic, could be made, except on the ground of comity. And on our own prin- ciples this could not be done to the injury of local credi- tors." The court decided that the assignee took no title to the Texas land under the decree vesting him with all the bankrupt's estate, (p. 45.) It has been held by the Supreme Court of Connecticut, that where a contract was made between two citizens of another State, and the creditor, sued and obtained judg- ment in Connecticut, and afterwards the debtor was dis- charged from his debts in the State of such contract, an execution might issue to collect the judgment notwith- standing the discharge. (3 Conn. R. 523.) In Donnelly vs. Corbett, (3 Selden's JR. 500,) the New- York Court of Appeals decided, that where a merchant of South Carolina bought goods at New- York of a,mer- 200 BANKRUPTCY. chant domiciled there, and gave a note for the price, pay- able in Charleston, South Carolina, and failed to pay it, and was sued and judgment recovered in the latter State, and the debtor was afterwards discharged, under a State law, from all his debts, that in such case the judgment of the New-Yorker was not affected by the discharge, and that a suit might be maintained on it. The court held, that the construction and effect of this contract were to be ascertained by the laws of South Carolina, but that the insolvent laws of that State formed no part of the contract, and the court referred to 5 Sow. Us S. B. 311. A discharge from debts was held to be an act of sovereignty founded on State policy. It was held, that the suing the debtor and imprisoning him in Caro- lina did not subject the non-resident plaintiff to the Carolina jurisdiction, except for the purposes of the suit, and that the discharge was without effect on the judgment, as the creditor was not a party to the proceeding, and re- ceived no dividend under it. Where an Englishman, domiciled in England, de- parted from England with movables, and while on the high seas he was adjudged a bankrupt in England, and on his arrival in New- York, English creditors and the pro- visional assignee in bankruptcy, all British subjects, filed a bill against the bankrupt, and collector of New- York having possession of the property, praying an injunction against a delivery of the goods to the bankrupt, and re- straining him from receiving them, the alleged bankrupt denied his insolvency, his bankruptcy, and alleging that he came on business to New-York, and that he intended to return to England. An injunction to that effect had been granted, and the chancellor refused to dissolve it, on the ground that as all the parties were Englishmen, the English bankrupt law passed the title to the goods to the assignee in bankruptcy. He also held, that if American FOREIGN DIVORCES. 201 attaching creditors had appeared, they would have been entitled to a preference over the foreign assignee. The chancellor said : " Under the circumstances, the assign- ment had the effect to change the property and divest the title of the bankrupt as effectually as if the same had been sold in England under an execution against him, or had voluntarily conveyed the same to the assignee for the benefit of his creditors." That if "no act of bankruptcy has been committed, he must apply to the proper tribunal of his own country to supersede the commission; for while it remains in force, the adjudication of the com- missioners is conclusive against him as to that fact." FOREIGN DIVORCES. Sec. 47. The dissolution of a contract by a bankrupt law of any nation, or of any State of our Union, cannot be effected so as to entitle it to recognition by comity in other States and nations, unless jurisdiction was duly ob- tained over both parties by due service of process, or voluntary appearance or consent. The same rule of pub- lic law applies to foreign divorces. And a legislative act, or the judgment of a tribunal not having obtained juris- diction of the subject-matter, and of both parties, agree- able to the principles laid down in this chapter, would seem to be utterly void, and a simple nullity for want of authority. ; (Ante, §§ 44, 45.) In the States of our Union the great principle of Ame- rican law, consecrated by the national and State constitu- tions, that no person shall be deprived of life, liberty or property without due process of law, makes void all legis- lative or judicial ex parte decisions, laws or decrees affect- ing any personal or property rights, where an opportunity to defend them is not allowed in a fair judicial way. (12 Missouri R 498. 4 Gomst. N. T. B. 230. 4 Hill, 145, 202 EXTRA-TERRITORIAL JURISDICTION, &c. 146. 5 Barb. 8. 0. B. 474, 484, 485. 9 How. 348, 350. 11 lb. 174.) Unless jurisdiction of both husband and wife are duly obtained, it would seem, upon principle, that the State law or decision of the tribunal annulling a marriage con- tract would be void, and simply a nullity, except in the State in conformity with whose laws it is made. This is a principle of American public law. EXTRA-TERRITORIAL JURISDICTION AS INCIDENT TO PERSONAL SERVICE OF PROCESS. Sec. 48. If process is personally served on a defendant within the jurisdiction of any court of any country, he may, after due trial, be decreed to execute or dissolve a contract relating to lands beyond the territorial limits of the country and tribunal, or to do any act necessary to transfer, encumber or disencumber such realty, or to pay any sum due to plaintiff for any fraud of defendant rela- tive to such property, or for any trust or contract relative thereto. The Court of Appeals of New- York, in 1853, in Bayley vs. Ryder, decided that the Supreme Court of that State had power to compel a judgment-debtor to convey lands held by him in another State, in such manner as to vest the title in the grantee, for the benefit of creditors. In Massie vs. Watts, (6 Cranch, 148,) the Supreme Court of the United States held the above doctrines in confor- mity to the settled principles of the English chancery. In Tardy vs. Morgan, (3 McLean's 0. G. B. 359, 360,) the same was held. To the same effect are Hopkins' N. T. Gh.B. 213. 10 Vesey, 164. 1 lb. 444. 3 lb. Jun. 170. 2 Paige's Gk B. 402, 615, 616. 3 Sandf. B. 185. 9 Pet U. S. B. 289. 9 How. U. 8. B. 348, 350. 16 lb. 13. 6 Pet. 397, 400, 401. 14 lb. 166. 16 lb. 57. 2 Story's Eq. Juris. § 743. 3 Kernan's N. T. B. 591. EXTRA-TERRITORIAL JURISDICTION, exclusive authority. So, if a power can only be exercised by one government from its nature, and there is an express grant to Congress, it is exclusive. (Ante,- § 28. 2 How. 65, 210. 5 lb. 104, 541. 6 lb. 390. 14 Pet. 569. 15 lb. 41. 12 lb. 657. 12 Wheat. Const. U. 8.) Congress can exercise only the expressly granted and HABEAS COBPUS. 293 the instrumental powers necessary and proper to carry into execution all the express powers. (16 Pet. 537. 2 Story on Const. §§ 1236, 1243. 1 Calhoun's W. 217, 218.) FOREIGN DIPLOMACY. This belongs exclusively to the national government and its specially appointed agents and ministers ; neither States or individuals have any right to interfere in our foreign affairs. Interference with our foreign diplomacy by a citizen of the United States, unless authorized by the President, is made a crime against the United States. (1 U. S. St. L. 613.) These principles of necessity belong to the law of na- tions, and it is an offence for any person to interfere with the diplomatic negotiations of his nation. The foreign relations of a nation belong to the government of the whole, and not to a State. (5 lb. 532. 25 Wend. 519, n. 14 Pet. 570—573, 598, n.) HABEAS CORPUS. Sec. 32. This writ may be issued to supersede State interference with persons and questions arising under the law of nations affecting the foreign relations of our re- public. (Ante, § 28.) In the case of Kaine, Chief Justice Taney and Justice Daniels concurred in the opinion of Justice Nelson ; (see ch. 4, § 40 ;) but on the main question of jurisdiction on habeas corpus to review the question of the decision of the Circuit Court as to the legality of Kaine's detention and imprisonment, by virtue of our treaty of extradition with Great Britain, there was a division of opinion among the judges. 294 HABEAS CORPUS. In the case of Jenkins and others, (2 Wallace's 0. 0. B. 521,) the Circuit Court of the United States for Pennsyl- vania decided that that court had power to issue a habeas corpus and set free from arrest, on State, criminal and other process, deputy marshals and others arrested for serving national process. As our national law stood in 1845, writs of habeas cor- pus, scire facias, &c, issued out of the federal courts, were so limited as to guard against conflict with State authority except in cases affecting the paramount national autho- rity and our foreign relations. In the case of Dorr, the Supreme Court of the Union decided, that no national court had authority to issue a habeas corpus to bring up Thomas W. Dorr, who had been convicted of treason against the State of Rhode Island, by its court, and sen- tenced to the State prison. (5 How, 104, 105.) The court say, neither this nor any other court of the United States, or judge thereof, can issue a habeas corpus to bring up a prisoner, who is in custody under a sentence or ex- ecution of a State court, for any other purpose than to be used as a witness. And it is immaterial whether the imprisonment be under civil or criminal process. As the law now stands, an individual, who may be indicted in a Circuit Court for treason against the United States, is beyond the power of federal courts and judges, if he be in custody under the authority of a State. (See, also, 5 How. 114.) In the case of Barry, the same court decided, that no federal court had authority to issue a habeas corpus on the petition of a foreigner, a father, to bring up his child, in the custody of its mother, and decide to whom the cus- tody of the child belonged ; and that the Supreme Court had neither appellate nor original jurisdiction in such cases. (2 How. 65. 5 lb. 103.) The court say, (5 lb. 115,) that the general govern- STATE CESSIONS AND PROHIBITIONS, &a. 295 ment is one of limited powers. It is the design of the Constitution that the judicial power should be co-exten- sive with the legislative authority, but not to exceed it. These powers are comparatively few and well defined, and are exceptions to the authority residing in the States, and subject to their judicial authority ; and that the great mass of authority remains in the State, and is governed by and dependent upon State power. All questions arising out of the domestic relations are peculiarly and appropriately within the province of the State governments ; and the courts will be slow in coun- tenancing any principle, or giving any construction of the Constitution and laws that shall decree to itself this branch of local authority. Here, then, we have in theory a perfect system of judi- cial harmony. STATE CESSIONS AND PROHIBITIONS TERRITORIES AND DISTRICT OP COLUMBIA — NEW STATES, &C. Sec. 33. The power of Congress to legislate for the national territories and the District of Columbia is plenary, subject to the limitations of the Constitution of the Union. (Const. U. 8. 14 Pet. 537. 5 lb. 44, 542. 5 Wheat. 49, 317, 422. 9 How. 235. 1 Wood. & Minors R. 84. 3 Story on Const. §§ 187—193.) The same exists to legislate for the preservation and sale of the public domain, (lb. and c. 6, § 14.) The States cannot make a compact without the assent. of Congress. (14 Pet. 570, 571 ; and Const. U. 8.) Congress can, by law, admit new States of our Union, by cession of other States or by forming them from our own territory. 296 STATE CESSIONS. PROHIBITIONS. States are prohibited from passing laws impairing the obligation of contracts or bills of attainder, thus securing person and property, or making compacts without the assent of Congress, or making war on each other or foreign countries, or from issuing bills of credit. (11 P t. 257, 312, and Const. 7 Row. 423. STATE CESSIONS. In places ceded to the United States the ordinary State laws do not prevail. (1 Wood. & Minors B. 84, 85. 2 Mason, 60. 8 Mass. B. 77.) As to such ceded places, Congress in most respects has the exclusive control of them and of persons there. (-?&•) Over territories, forts, public vessels and establishments and persons within its jurisdiction. Congress may legislate to protect the na- tional interests and the rights of such persons, and enforce their duties. (lb-} Judge Story, in his work on the Constitution, (vol. 2, § 1227,) says, that the States cannot take cognizance of acts done in the ceded places after cession, and that the inhabitants of those places are no longer inhabitants of the ceding State, and cannot exercise any civil or political rights under the laws of the State. No State right of eminent domain can be exerted within such places or without them, so as in any degree to injure them or appurtenant water rights. (Angell on Water- Courses, 4th ed. 537, 538.) State cessions may, and often do contain a reservation of a right to serve civil or criminal process, in the ceded places, and this, as a compact, is good. (2 Mason, 59. 5 Mass. 356. 1 Wood. & Minolta B. 84. 1 Kent's Com. 429.) INCIDENTAL POWERS OF CONGRESS. 297 By act of Congress cessions are ratified, and it is also enacted that service of civil and criminal State process may be served in certain cases, where no reservation is made in the act of cession. (1 U. S. St. L. 426, c. 4, §40.) Where this right in full is reserved or given by acts of Congress, it is a national consent to a legal extradition. Crimes committed in ceded places are defined by acts of Congress, and triable and punishable by the national courts. In cessions by the States, they may be more or less ex- tensive in their reservations according to the compact. The State of New- York, in ceding the jurisdiction to the United States over land for the arsenal at Watervliet, made the grant upon condition, and reserved a concur- rent jurisdiction with the United States over the ceded territory, so far that State civil process in all cases and criminal process in cases where the crime was committed without the ceded district, might be executed there, in in the same manner as though such jurisdiction had not been ceded ; and a further condition provided, that the cession should cease when such land was no longer used by the United States as an arsenal, &c. A further excep- tion reserved from the cession the Erie Canal, passing through such land, and one rod on each side thereof, and the public highway passing through it. (3 R. S. N. T. Ap. 91, 92.) INCIDENTAL POWERS OF CONGRESS. Sec. 34. Congress has a right to pass laws to execute all national powers, and to choose all constitutional means to carry them into effect. Hence, laws to exempt persons and property in the national service may be passed by Congress in its discretion. (1 U. S. St. L. 751, § 4, p. 298 EXEMPTION OF SOLDIERS, SEAMEN, &c. 595. 2 lb. 674, § 21 ; p. 61, §612. 5 lb. 88, § 34. 4 lb. 104, 107, 108, 112, § 35.) As the national powers are supreme, and in case of conflict between a constitutional act of Congress and a State law or authority, the former prevails, no State law or authority can, upon principle, impede the execution of an act of Congress over military and naval affairs, or over the mails. Hence, it would seem, that all persons and property actually in the military, naval or mail service of the United States, are exempt from State law and authority, except in case of municipal crimes and offences, when, from necessity, the criminals must be arrested, though a temporary detention of the mail or other obstruction of the public service might arise. It would seem that a mail- carrier, his horse or horses and carriage, a locomotive and train actually in use transporting the mail, are exempt from the action of State law and process, except in crim- inal cases. {lb. and 1 Kent's Com. 410, 411. 1 Peters' G. G. E. 390. 2 Watts & Serg. 163. 3 HalVs Law Jour. 128, and post.*) MAIL EXEMPTIONS. Postmasters, post riders and drivers of mail stages are exempt from militia and jury duty and fines. (4 U. 8. St. L. 112, § 35.) None but white persons can carry the mail. By the act of 1836, (5 lb. 88, § 34,) postmasters, and clerks en- gaged in their offices, are exempt from jury and militia duty and fines on that account. EXEMPTION OF SOLDIERS, SEAMEN, &0. An act of Congress provides, " That no non-commis- sioned officer, musician or private shall be arrested, or LEGISLATIVE EXEMPTIONS. 299 subject to arrest for any debt, or to be taken in execution for any debt under the sum of twenty dollars, contracted before enlistment, nOr for any debt contracted after en- listment." (2 U. S. St. L. 136, § 23.) The act of 1799, (1 lb. p. 751, § 4,) provides a general exemption of such persons from all arrest for debt or contract, and extends such exemption to the militia as -well as others in the service of the United States, and to artificers. So that the act of 1799 is merely modified as to an indebtedness exceeding twenty dollars, contracted before enlistment, by the persons above named. (2 lb. p. 137, § 29.) An act of 1800, (2 lb. 62, § 4,) enacts that all arti- ficers and workmen, who are or shall be employed in United States armories, shall, during their term of service, be exempt from military and jury duty. An act of 1798, (1 lb. 595, § 5,) enacts that non-com- missioned officers, seamen, musicians and marines enlisted, or to be so, in the United States naval service, as well as all other non-commissioned officers and musicians in such service, shall be exempt from arrest for any debt or con- tract during their term of service. LEGISLATIVE EXEMPTIONS. Public considerations have secured members of Con- gress and of our State legislatures from arrest while those bodies are sitting in all cases, except treason, felony and breach of tie peace, and while they are going to and re- turning from such sessions. The sixth section of article first of our national Constitution confers such privilege on members of Congress, and an exemption from being called in question for any speech or debate in Congress, and from being questioned in any other place as to the same. (1 Calhoun 's W. 217. 1 Story on the Const. § 859.) 300 LEGISLATIVE PROTECTION. The same principles are declared by the State constitu- tions, and they may be considered as part of American public law. {U. S. Trials, 253, 260, 316, 336.) The above exemption is confined to debates, reports and official acts in the course of his duty. (1 Story on Const § 866.) So, if a member publish, unofficially, a libellous speech or report, it is not privileged. (/&•) LEGISLATIVE PEOTECTION. Congress, State legislatures and all legislative bodies have the power of self-protection, and may punish con- tempts, subject to limitations prescribed by law. It is necessary to their existence. (1 U. S. St. L. 83, § 17, 6 Wheat. 225. 2 Story on Const. 299, 300.) An attempt was made during the presidency of John Adams, to protect the President and certain officers of government from libels, an act of Congress made them indictable and punishable by the national courts. Some convictions took place, but the act was repealed during the presidency of Thomas Jefferson, and its effects re- moved as far as the power of the executive extended. President Jefferson and his party considered the act un- constitutional, as Congress was prohibited from passing any law on the subject. (1 Calhoun s W. 359.) After forty years from the conviction of Lyon, Congress directed the fine imposed under the law in behalf of the United States on him, to be refunded to his heirs. ( IF. S. State Trials, 344, 719.) Thus Congress declared against the commonly called Sedition Act, and the violent conduct and arbitrary decisions of certain judges, who seem to have been misled by their party predilections, and erroneously, though innocently, gave their sanction to a law now NATIONAL LAW. 301 deemed incompatible "with our national Constitution and with the freedom of American citizens. IMPRISONMENT FOR DEBT. Selling debtors and their families for debts into slavery, as well as prisoners of war, is a barbarous custom, origi- nating in heathenism, and wholly inconsistent with the benign spirit of the gospel. Our national and State legis- latures have been gradually removing the person of debtors from the grasp of exacting and severe creditors, and allowing execution only against the property of debt- ors. Honest debtors are now exempt from imprisonment for debt under process of our national courts, in most cases, upon surrender of their property; and this now prevails in most, and will soon be the rule in all of our States. (5 U. 8. St. L. 321, 410, 629. Conkliris Tr. on the U. S. Courts, 477—479, 480—482.) Defaulters, peculators and wrong-doers are criminally and penally punished by acts of Congress and by State laws. This exemption from imprisonment of honest debtors is one of the original improvements of American jurispru- dence, produced by the conjoint influence of Christianity and republican institutions. NATIONAL LAW. Sec. 35. The laws of the United States are recorded in the federal Constitution, treaties of the national govern- ment and in acts of Congress. The Indian treaties and compacts between the general government and the States form part of the national law. American law, declara- tory evidences of which is found in concurring acts of Congress and in the Constitutions of the States, may be deemed part of the national public law. But there is no 302 NATIONAL LAW. common law of the United States. In the case of Penn- sylvania vs. The Wheeling Bridge Companies, (13 How. 519,) the Supreme Court of the United States say : "It is admitted that the federal courts have no jurisdiction of common law offences, and that there is no abstract per- vading principle of the common law of the Union under which we can take jurisdiction." But the court added : " And it is admitted that the case under consideration is subject to the same rules of action as if the suit had been commenced in the Circuit Court for the District of Vir- ginia." (See, also, Wheaton et al. vs. Peters, 8 Peters, 658.) In that case the court say : " It is clear there can be no common law of the United States." (See, also, 9 How. 618. 7 Crunch, 32. 1 Kent's Com. ed. 1848, pp. 339—341. 1 Wood. & Minot's G. C. B. 401.) Commercial law, or the law-merchant, is held by Black- stone to be a part of the law of nations. Sandford, V. Ch., in Sanford vs. The Long Island R. R. Co., (5 Sandf. Ch. B. 188,) says : " The decisions of our highest na- tional tribunal, upon questions of general commercial law, we cannot but think ought to be regarded throughout the Union as authoritative and controlling. Commercial law is not local or sectional, but national in its character, and its uniformity, therefore, a national concern, and it is only by attributing a paramount authority to the highest court of national jurisdiction that this desirable unifor- mity can be attained or preserved. So far as the national Constitution, or any treaty or constitutional act of Congress shall have adopted, or may adopt, portions of the common law, civil law or other foreign law, it has been and may be part of and incorpo- rated in our code of national law. (lb. Ch. 8, last sect. ; ch. 5, §§ 5, 25. 16 Pet. 25, 65. 1 How. 277—279. 15 Pet. 125.) By the Constitution of the Union the national judicial NATIONAL LAW. 303 power is extended to all cases in law and equity arising within the limit of national authority. In the Wheeling Bridge case, (Ante, § 5, and 12 Sow. 443,) and in the case of Georgetown vs. The Canal Co., (12 Pet. 94,) the Supreme Court of the United States held, that the Con- stitution, and acts of Congress allowing suits in equity where no adequate remedy at law existed, authorized the national courts, vested with equity powers, to administer the equity system of the High Court of Chancery of Eng- land, that being adopted as part of the national code in all cases to which it was applicable. The national equity law is uniform. (13 How. 268.) Article 7th of the Constitution adopts the common law jury trial in cases at law where that trial had been used, and the common law rule as to the binding effect of the verdict of the jury, and forbids a re-examination of the facts by the national courts except according to the rules of the common law. Our act of Congress makes the rules of the common law part of our Chinese and Turko-American codes. (See last sect. ch. 8. 9 U. 8. St. L: 302.) When our Constitution, or any act of Congress or treaty, employs a civil or common law term, such law, from which it is adopted, may be resorted to to define its meaning, unless its American signification, more or less extensive, had become fixed at the time of its adoption, or its foreign meaning would be incompatible with our system of law. (lb. 1 Sow. 77— 79. Our American public and private international law forms a part of American jurisprudence. (Ante, ch. 5, § 39 ; ch. 2, § 19.) So does the law of nations as adopted and expounded by our Presidents and the Supreme Court of the United States. 304 STATE LAW. STATE LAW. Each State of our Union has its own system of law and jurisprudence as a municipal sovereignty. Its law is composed of our treaties, the Constitution of the United States, and acts of Congress passed in pursuance thereof, the State constitution and its statute laws, and such por- tions of the common, civil or other foreign law, Spanish, French, Roman or Dutch, as the respective States shall have incorporated in their respective codes, not incon- sistent with our treaties, the national Constitution or such acts of Congress. Our treaties, national Constitution and such acts of Congress are the supreme law of the land in every State, and all other State law must be subordinate thereto. The treaties cease to be part of the municipal law of our States and Union when repealed by Congress. American jurisprudence has drawn largely upon the English, French, Spanish and Roman law, though the basis of American law is original and republican. In determining what the common law is in States where the common law of England has been adopted by a State of our Union, English statutes modifying it may be con- sidered. Mr. Justice Harris, of the Supreme Court of New-York, an able jurist, in the case of The People vs. Van Rensse- laer, decided in 1852, held that the statute of quia emp- tor es, enacted by the English Parliament in 1289, declar- ing that upon all sales or grants of lands the grantee should hold, not of his immediate grantor, but of the chief lord of the fee, of whom the grantor himself held, changed the common law before the colonies were planted in America, and that our ancestors adopted it as it existed at their emigration. He held that the object of the stat- STATE LAW. 305 ute was to modify the common law and prohibit the granting of manors, such as the royal governors of New- York granted to certain Van Rensselaers, in trust, for their family, and that they were illegal and void. The judge declared the statute applicable to the colonies, and that, under such circumstances, an English statute, exist- ing at the settlement of the colony, was to be deemed part of its law. And he cited and relied on Patterson vs. Winn, (5 Pet. 241. 4 Paige, 198. 1 Kent's Com. 473.) The same principle must apply to those of our States that have adopted the civil law, as it existed and was modified in the countries from which their law was derived. Adoptions of the common and civil law, after a colony was planted, may have been by usage or by royal order consented to, or by statute of a colony. Sec. 35. Our American public and private international law is composed in part of a written code, enacted in the form of a national constitution and acts of Congress, and State constitutions and State laws, and in part of the law of national comity, arising from the relations of the na- tional sovereignty to the State municipal sovereignties, and from the equality of the latter among themselves and a common union in one nation. These constitutions and laws do not enact the law of international and inter-state comity, but merely recognise it by enforcing it in a few particular cases. This law seems to rest on the golden rule of the gospel, and, as the fruit of Christian civilization, to belong, of ne- cessity, to American jurisprudence, as God's appointed regulator of the rights and duties of all national and State sovereignties. Treaties, constitutions and laws merely recognise and regulate it in certain respects, but its true basis is the command of Jehovah to nations and 20 306 SUPKEMACY OF LAW. States, as "well as to individuals, " Do unto others as you would they should do unto you." (Post, § 39.) SUPREMACY OF LAW. The laws of the respective States and those of the United States are held in all American courts supreme within their respective constitutional limits. Hence, it is a principle of American law, that all contracts that con- travene such laws in their positive provisions, their spirit or policy, are illegal and void. Hence all agreements, the object of which is to restrict, embarrass or disturb the regular and constitutional action of the executive, legisla- tive or judicial departments of any State, or of the national government, are illegal and void. (15 Wend. 45, 412. 4 Gomst. N. T. Ap. R. 456, 457. 5 Johns. R. 334. 15 Barb. R. 541. 20 Wend. 27.) In Armstrong vs. Toler, (11 Wheat. 261,) the Supreme Court of the United States held the settled rule to be, that all contracts growing immediately out of, and con- nected with an illegal or immoral act, will be held void, and no court will assist their execution. In Bartle vs. Coleman, (4 Pet. 187, 188,) where a pub- lic officer made a contract to build a fort with a person, and agreed with him to have one-third of the profits, and another person contracted to aid in this fraud as partner or agent, the same court held the contract illegal and void as to all the said parties, and that neither could maintain an action, as it was contrary to public policy and sound morals. (See, also, 4 Wheat. 204, 207, 436. 8 Oowen's R. 728. 5 Hill, 52.) The gospel morals are recognised by all the courts of Christian States and nations, and contracts for immoral objects will be held by them illegal and void. (lb.) STATUTES OF LIMITATIONS, &c. 397 STATUTES OF LIMITATIONS AND RECORDING LAWS. Sec. 36. It is well settled that States may pass laws for recording deeds, mortgages and other documents, and make void all such, though older, as shall not be recorded ; and that such law may apply to such deeds, &c, as existed at the passage of the law, as well as to those executed after- wards, if the persons holding title under such deeds were able to comply with the recording act. But it is other- wise where the deed has been destroyed by the passage of the act requiring it to be recorded, or where from any other cause a compliance with the law is impracticable. (See Cranch vs. Briggs, 6 Paige's Gh. JR. 323.) A State may, also, legally pass statutes of limitation relating to existing as well as future contracts, transactions, titles and causes of action. If an opportunity is allowed by such laws to the party to be affected to comply with any such law, it is not a law impairing the obligation of contracts. (3 McLean's G. G. B. 569. Cox's U. S. Digest, p. 467, § 79. 9 How. 522, 527, 529.) In Phelan vs. Virginia, (8 How. 168,) the Supreme Court of the United States so decided, and in their opinion say : That it has been often decided by this court, that the prohibition of the Consti- tution now under consideration, by which State legisla- tures are restrained from passing any law impairing the obligation of contracts, does not extend to all legislation about contracts. They may pass recording acts, by which an elder grantee shall be postponed to a younger, if the prior deed be not recorded within a limited time ; and this whether the deed be dated before or after the act. Acts of limitation, also, giving peace and confidence to the actual possessor of the soil, and refusing the aid of courts of justice in the enforcement of contracts after a certain time, have received the sanction of this court. 308 STATUTES OF LIMITATIONS, «fcc. Such acts may be said to effect a complete divesture, or even transfer of right; yet, as reasons of sound policy have led to their adoption, their validity cannot be ques- tioned. States of our Union may pass statutes of limita- tion according to their discretion, subject to the limitation of the national and State constitutions. (9 How. 522, 529.) A statute of limitations may perfect a title to personal property in one State of our Union by a fixed period of possession or other appropriation, so that a transfer of such perfect title "will be, by comity, held good in other States. (Shelby vs. Grey, 11 Wheat. 369, 371, 372.) In such case there might be a divesting of the title of the true owner, and its transfer by law and his negligence. Still the law is valid ; the title is perfect, and there is no violation of any constitutional prohibition. (Ante, c. 5.) In Harpending vs. The Dutch Church, (16 Pet. 492,) the Supreme Court of the United States decided that, where a State statute had run on realty in favor of the holders of it, they had a title as undoubted as if they had produced a deed in fee simple from the true owner, dated at the end of the period limited by law; and that all inquiry into their title or its incidents was as effectually cut off. There then would be a legal transfer of realty by lapse of time and an adverse possession ripened into a right, and yet no violation of the constitutional inhi- bition against divesting a man of his property without due process of law, or impairing the obligation of con- tracts. The policy of the law makes the prescribed possession undisturbed by suit, or the possession of the claimant con- clusive evidence of title in the holders. (11 Wheat. 370 —372. 16 Pet 492. 8 How. 168, 292. 8 Cranch, 72.) The effect of a statute of limitations, when it applies to a case and has fully run, makes a title in the ad- STATUTES OF LIMITATIONS, 2ded. 453, § 542.) PROOF AND PRESUMPTION OP FOREIGN LAW. Sec. 37. In England and the States of our Union, where the common law forms the basis of local jurisprudence, the law considers all personal actions, whether ex contractu or ex delicto, wherever the cause of action arose, as transi- tory, and as governed by the law of the State or nation before the courts of which the parties are litigant, unless one of the parties shall allege and prove a foreign law, that, by national comity, ought to govern the case. (Hoff- man vs. Carow, in Court of Errors of New- York, 22 Wend. 323. 1 Seld. N. Y. R. 447. 3 Barb. 8. G. B. 20, 29. 2 HilVs B. 201, 202.) The law of such States and nations is presumed to be the same, unless one of the parties shall aver and prove the contrary. In the States of our Union the law of the lex fori is applicable to all transitory actions, unless a foreign law is averred and proved to be properly applicable to the case PROOF, &c, OF FOREIGN LAW. 311 by national comity. (Bank of Augusta vs. Earle, 13 Pet. 519, 589. 22 Wend. 323. 2 HilVs B. 201, 202. 3 Barb. S. G. R. 29.) Hence ignorance of a foreign law is ignorance of a fact. (8 lb. 238, 239. 9 Pick 112 3 Shepley, 4, 5.) In suits in our national and State courts, where the principles of the general commercial law are involved, arising out of contracts made in foreign countries, or a State other than that where the matter is litigated, the particular exposition of that law by the courts of the lex loci contractus will not be deemed to be part of or to govern the contract, if adjudged to be in conflict with the well-settled principles of the law-merchant, as generally expounded by enlightened tribunals of other States and countries. (Swift vs. Tyson, 16 Pet. 18—22.) The same rule must be applicable to all contracts and transactions in any State of our Union, whether the com- mon or civil law forms the basis of its jurisprudence, where the matter is litigated in a court of another State, or before a national court. The general principles of the common and civil law must be judged of by courts, before which parties litigate as to foreign transactions, by the expositions of that law by the decisions of common and civil law tribunals respectively of different countries, and not by any particular decisions of the courts of the country of the transaction, which conflict with the general tenor of judicial authority. While local courts, therefore, in all countries, as well as in the States of our Union, decide authoritatively and conclusively all questions relative to immovables, realty and local statute law, and general customs having the force of local law, so that, by national comity, these are to be regarded by foreign courts as evidence of that law, all matters litigated in foreign courts, where the principles of the common or civil law are involved, ought to be 312 PKOOF, &c, OF FOKEIGN LAW. decided by the principles of such law as settled by the highest authority. The presumption that a foreign law, in the absence of proof, is like the law of the lex fori, must be confined to cases depending on the law of nature, on the common or civil law, where the two countries have the civil or com- mon law in common ; and the rule cannot apply to stat- ute laws, or rights founded on them ; nor can any such rule apply where the systems of jurisprudence are essen- tially different. Hence, citizens of one State or country are not deemed to be charged with knowledge of foreign law. And this is the rule of our private international law as applied to the States of our Union. It is a settled principle of public law, that foreign laws must be averred in pleading and proved as facts, as the' lex fori is presumed to know only the law of the country whose tribunal has jurisdiction of an action. (1 Seidell's N. T. R. 447, 451, 452. ' 5 lb. 53, 62. 10 Wend. 75. 1 Kernan's R. 439. 11 Paige's Ch. R. 398. Story's Gonfi. L. 2d ed. 638, §§ 444, 649. 1 U. S. St. L. 122. 2 lb. 298.) This doctrine applies to the States of our Union, the District of Columbia and organized territories. (lb.} Hence, where a suit is tried in one country depending on the law of another, if that is mistaken, and an erroneous judgment is given, and a new suit is instituted in the country whose laws have been misapplied, the former judgment is not regarded, as true comity requires that foreign law should be administered as recorded in its statutes, or as adjudged by the highest tribunals of the lex loci. Hence, where there are two administrations granted in different countries, the tribunals of each regulate the dis- tribution of the assets found there agreeable to the lex PEOOF, &c, OF FOREIGN LAW. 313 loci, and they do not submit their succession to be ad- judged by a foreign tribunal, as national comity does not call for the displacement of lex loci, essential to the secu- rity of its own citizens. The State or sovereignty in "whose territory assets of deceased persons may be found may control and distribute them for the protection of their own citizens, creditors, legatees and parties entitled to succession. In case of necessity, and to prevent failure of justice, a foreign tribunal may take jurisdiction of foreign assignees, trustees, executors and administrators, and, as an exception to the general rule, may compel them to account, and pay over to parties entitled, the funds im- properly and inequitably held in their hands. In such case, where the foreign law is a material fact, it must be averred in pleading and duly proved, to entitle the party injured to relief. In these judicial investigations the whole history of the common and civil law become objects of inquiry. Cicero, Grotius, Bacon, Coke, Hale, Mansfield, Blackstone, Domat and the leading publicists and judges of Europe became the expounders of the general principles of those laws. In our own country, among the highly-honored dead, whose legal learning, great ability and integrity have largely contributed to build up our improved system of American jurisprudence, and who are our expositors of law, we would name, with reverent admiration, John Mar- shall, John Jay, Ambrose Spencer, • Theophilus Parsons, James Gould, James Kent, Alexander Hamilton, Edward Livingston, James Madison, William Pinckney, Joseph Story, William Johnson, William Wirt, Daniel Webster, Henry Clay, John Q. Adams, Henry Wheaton, and a long line of other eminent judges and civilians. In the deci- sions of our national and State courts, our acts of Congress, and in the treatises of our learned civilians and lawyers, we are to look for American expositions of the civil, com- 314 CONSTITUTIONAL CONSTBUCTION. mon and public law. Of the able civilians, judges and chancellors, now living, who have largely contributed to the advancement of American jurisprudence, we cannot speak without pronouncing in anticipation the grateful judgment of posterity. USAGE AND CONSTITUTIONAL CONSTRUCTION. Sec. 38. The Supreme Court of the Union, in Driscol vs. Kentucky, (11 Pet. 317,) held that a uniform course of action, involving the right to the exercise of important power by the State governments for half a century, and this without question, was satisfactory evidence that the power was rightfully exercised. Upon the same principle, a congressional course of legislation, generally acquiesced in for a long period, would practically settle the construc- tion of the Constitution in accordance with the national legislation. (16 Pet. 542.) In this way the construction and extent of the power of Congress over commerce has been settled by many acts passed at different times dur- ing half a century. And, in the same way, the meaning of the clause empowering Congress to pass all .laws ne- cessary and proper to carry into effect the powers speci- fically granted, has become fixed. It is now practically settled, that Congress is the sole judge of what constitu- tional means are necessary and proper to give effect to those powers. (4 Wheat 412, 413, 419, 420, 421, 424, c. 5, § 31.) By long-continued practice, and by decisions of the Supreme Court of the Union, it has become settled that the government of the Union, clothed with national powers, and the States possessing plenary municipal au- thority, are all of them sovereign and supreme within their respective constitutional limits. (4 Wheat. 410. 1 Pet. 542, 543.) CONSTITUTIONAL CONSTRUCTION. 315 By the action of the republic in adding Louisiana, the Floridas and Texas to the Union, by treaties and by law passed by Congress, that mode of acquiring territory and States must now be deemed constitutional. (11 Pet. 317.) By decisions of the Supreme Court of the Union, which has the sole power to finally decide, the following rules of construction are also settled : 1. Whenever the terms in which a power is granted to Congress require that it should be exercised exclusively by Congress, the subject is as completely taken from the State legislatures as if they had been forbidden to act. (16 Pet. 622.) In such eases there is a direct repugnance and incom- patibility in the exercise of the power by the States. (5 Wheat. 49.) 2. The power of Congress is exclusive where the States are expressly prohibited to pass laws (11 Pet. 317) of a particular character. 3. Such power is exclusive where an exclusive jurisdic- tion or power is granted in terms ; as the power to estab- lish a uniform rule of naturalization and bankruptcy, and the delegation of admiralty and maritime jurisdiction to the federal courts. (5 Wheat. 49.) 4. The States, or the people thereof, retain all the powers of government not granted to the national gov- ernment. (11 Pet. 257, 316, 317. Const. U. 8. art. 10.) 5. The national and State municipal governments are each sovereign and supreme within their respective con- stitutional limits. (4 Wheat. 410.) 6. General limitations of power, where the States are not expressly named and included, are to be deemed re- strictions on the powers of the national government, in- tended to prevent interference with the States, and not restrictions on the States in reference to their own citizens. (7 Pet. 247. 5 How. 434.) 316 NATIONAL COMITY. 7. As the Constitution of the Union gives a paramount authority, to the extent of the national powers conferred upon the general government by the people of the States, it prohibits, by necessary implication, the States, or their officers, agents and tribunals from impeding or in any manner interfering with the national government, its officers and agents, or with its judicial tribunals, in exe- cuting its authority. (1 Kents Com. 4th ed. 328, 409 — 413. 4 Pet. 563, 564. 16 lb. 449. 4 Wheat. 316. 9 lb. 738. 2 Mow. 16. 1 lb. 301. 5 Crunch, 115, § 6. 2 Wheat. 1. 6 lb. 598. 12 Pet. 751. 6 Wheat. 447, 598.) A State law cannot suspend or discharge the obligation of a contract, though made and to be performed within such State, if the contract is with a citizen of another State. (10 Law E. N. S. 606. 14 Pet. 67. 18 How. U. S. R 503. 2 Curtis' C. C. B. 604.) The Constitution of the Union having conferred on the national courts jurisdiction in such cases, a State law can- not control or in any manner affect the action of the na- tional tribunals. NATIONAL COMITY. Sec. 39. The doctrines of national comity are applica- ble as between the States of our Union, and between the District of Columbia or any organized territory and States respectively. The Supreme Court of the Union, in the case of the Bank of Augusta vs. Earle, (13 Pet. 590,) held that the principles of comity were applicable as between the States of our Union and among nations. The court held, in that case, (p. 592,) that Congress, by the Deposit Act, recognised this doctrine of comity in its application to banks. The doctrine of comity has been often recog- CORPORATIONS. ' 317 nised. (4 How. 16. 4 Johns. Gh. B. 372. 7 Wend. 553. 6 Hill, 529. 6 Gow. 46. 14 Pet. 129. J.w#eZZ & Ames on Corporations, 3d Boston ed. 374 — 377.) Though comity among the States of our Union does not require the enforcement of the penal and disqualify- ing statutes of other States, if a penal action is brought duly and judgment recorded on personal service of pro- cess, in a local tribunal where the transaction arose, and an action is brought in another State on such judgment in favor of such foreign State or others, plaintiffs in the judgment, the cause of action is merged in the judgment, and an action thereon may be sustained in such foreign State. And comity requires the enforcement of such judgment, as the local cause of action is merged therein. (11 Pick. Mass. B. 389.) The Supreme Court of Missouri held, in The King of Prussia vs. Knepper's Ad., that a foreign sovereign may sue in the courts of that State, and that where, by the law of his kingdom, he has refunded money stolen from the post-office, and thereby become vested with and sub- rogated to the rights of the loser, he may sue the wrong- doer and recover for money so paid, in the courts of Mis- souri. This decision is founded on national comity. CORPORATIONS. The Supreme Court of the Union have settled that a corporation is an artificial being, invisible and intangible, and existing only in contemplation of law ; that its powers are those declared by the statutes creating it, and that it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. That a corporation can have no legal existence out of the sovereignty by which it is created, as it exists only in contemplation of law, and by 318 CORPORATIONS. force of the law ; -when that law ceases to operate, and is no longer obligatory, that the corporation can have no existence ; that it must dwell in the place of its creation, and cannot migrate to another sovereignty. But a coe- poration may act and contract in any foreign nation, and much more in any other State of our Union, if it is acknowledged and recognised by the State or nation where the dealing takes place ; and that it is permitted by the laws of that place to exercise there the powers with which it is endowed. Every power, however, which a corporation exercises in another State, depends for its validity upon the laws of the sovereignty in which it is exercised. And a corporation can make no valid con- tract without the sanction, express or implied, of such sovereignty, unless a case should be presented in which the right claimed by the corporation should appear to be secured by the Constitution of the United States. (14 Pet. 129, 130. 13 lb. 587. 12 Wheat. 64. 4 lb. 316. 9 lb. 738. Angell & Ames on Corp. 3d Boston ed. 121 — 123 x 4 How. 16.) If the charter of a corporation authorizes it to loan on mortgage upon lands lying out of the State creating it, or to purchase and hold such lands in other States, the cor- poration may exert those powers, if not prohibited by the law of the State where such realty is situated. (14 Pet. 130. 4 Johns. Oh. E. 372.) Where a State, by law, declares that a purchase of lands by any corporation, foreign or domestic, shall sub- ject the lands to forfeiture to the State by escheat, the corporation may take lands by purchase and hold until the State shall enforce the escheat. (14 Pet. 131, 137. Binney, 313. Angell & Ames on Corp. 122, 123.) A corporation is not, however, a citizen of a State within the meaning of Article 4, section 2, which says, that the citizens of each State shall be entitled to all pri- CORPORATIONS. 319 vileges and immunities of citizens in the several States. (14 Pet. 60.) Comity requires that the States of our Union should, as far as possible, reciprocate rights and advantages ; but if any State creates any corporation with power to act or contract in other States, their legislatures may judge whether they will permit such corporation to exert its powers in their respective States, and to what extent ; provided that no law be passed infringing a right secured by the Constitution of the United States. But comity does not require a State to enforce con- tracts or give effect to transactions in violation of its own law and policy. (3 Wheat. 146. 13 Pet. 589. 6 Hill, 528. . 13 Pet. 65. Story's Confl. L. 204, § 246 ; 2d ed. §§ 247—249 ; p. 212, § 258, (2 ;) p. 214, § 259, (3 ;) 259 a.) If a State authorize, by law, a corporation or all its citizens to loan and borrow money at ten per cent., and a note or contract be made there payable in a State where all loans exceeding six or seven per cent, are illegal and the contracts void, the tribunals of the State where pay- ment or performance is agreed to be made is not bound by comity to enforce them. But the tribunals of the State whose law allows them, by the lex loci contractus, would enforce them. (6 Paige's Ch. B. 627. 6 Webster's Works, 117, 119.) Mr. Webster's views on national comity will be found in his Works last referred to. A corporation of a State is not a citizen within the meaning of the Constitution of the United States. (Sect. 1, art. 1.) It is a creation of the State, and is an artificial body, with such powers of action within the State as its laws confer upon it, but as legislation is not extra-terri- torial, such companies act in other States only by their comity. The lex loci regulates the extent of this comity, 320 CORPORATIONS. and all foreign corporations can transact business in foreign States only to the extent, in the mode and upon the con- ditions prescribed by the municipal law of the place of action. (20 Barb. R. 80.) In Pearce vs. The Consolidated Madison and Indiana Eail-Eoad Company and the Peru and Indianapolis Rail- Road Company, (21 How. 442,) the Supreme Court of the United States held, that these roads having united by the agreement of the companies without legislative au- thority, and having bought a steamer as part of the plan, and given the note sued on, as by the new company, for the price, the whole contract and note were illegal and void, and the holders of the note were bound to take notice of the statutes creating these separate corporations, and that no corporation can apply its funds to any other objects than those specified in its charter, and that a Court of Chancery will enjoin against a misapplication of the corporate funds, and the English cases were cited and approved. The court held, that corporations are artificial beings, having those powers only that the statutes creat- ing them confer specially or by necessary implication. (See, to the same effect, 41 Eng. Oh. R. 9 Hare, 305.) The same court held, in the Philadelphia and Baltimore Rail-Road Company vs. Quigley, (21 How. 202, 210, 217,) that a corporation, as a rail-road or other corporate body, is liable for acts done by the agents of the corpo- ration, in contractu or in delicto, in the course of its busi- ness, and of their employment, and an individual is re- sponsible under similar circumstances. That corporations might thus be liable for libel, assault and battery, for damages by collisions of rail-road cars and steamboats, and for trespass quare clausum /regit. And the court cite in support of this position, 9 Serg. & R. 94. 4 Mann. & G-. 452. 4 Gray's Mass. R. 465. 6 Ex. Oh. 314. 14 How. 465. 19 lb. 543. 34 Law & Eq. R. 14. COEPOEATIONS. 321 11 Wheat. 59. The court (p. 211) say : " The case of National Exchange Company of Glasgow vs. Drew, (2 Macqueeris H. of L. Gas. 103.) was that of a company in failing circumstances, whose managers sought to appre- ciate its stock by a fraudulent representation to the com- pany, and a publication of the report as adopted by it, that its affairs were prosperous. Two of the stockholders were induced to borrow money from the company to invest in its stock. The question in the cause was, whe- ther the company was responsible for the fraud ;" and the court add, that the false representations of the agents were the act of the company as well as the individual torts of the managers ; that the adoption of the report made it the company's act, and that the representation having been used, in dealing with third persons, the company must bear and pay the loss of the party trusting to the representations. The court approved this decision. (See, also,' 22 Missouri R. 85. 26 Eng. Law & Eq. R. 536.) It has been settled by the Queen's Bench in England, in January, 1859, by the unanimous decision of the court, in Scott and Robinson vs. Dixon, Manager of the Liver- pool Borough Bank, that a report made to the share- holders of the bank by Dixon that its capital was intact, and that there was a surplus to divide, when he knew that a portion of its capital was lost and that there was no surplus, which report, coming to the knowledge of plaintiffs, induced them to buy stock in the bank, which they wholly lost by its failure, made Dixon liable to plain- tiffs for their loss. {The Jurist of Lond. of Nov. 27, 1858, N. S. vol. 4, pp. 1068, 1069. Lond. Times of Ja- nuary 29, 1859.) The Superior Court of the city of New- York, in Cross vs. Sackett, (6 Abbott's Pr. R. 247, 248,) and the case of Mead vs. Mali, (15 How. N. Y. R. 347,) held the same principle of common law, common honesty and common 21 322 COKPOKATIONS. sense, that the directors and officers of all corporations and associations are personally liable for all false repre- sentations of the capital and condition of their companies that they know to be false, or that they do not know to be true, and must make good the loss of any one coming to a knowledge of such false reports or statements, and being injured thereby. The law imputes to directors a knowledge of the affairs, capital and condition of their companies, as it is part of their official duties. (3 Kernan's N. Y: Ap. B. 114. 3 Comst. N. Y. Ap. R. 156. 4 Selden's Ni Y Ap. R. 312.) In Robertson vs. Smith, (3 Paige's Ch. R. 231,) Chancel- lor Walworth held directors liable for violation of their duties as trustees. (See, to same effect, 5 lb. 612. 3 Louisiana B. 568.) The House of Lords held the above doctrines in National Exchange Company vs. Drew, (32 Bag. L. & Ea. B. 1, 4—10.) In England and in this country it is settled, that the directors of a company or a committee, or any one of them, can make no private contracts for his or their advantage, in reference to the subject-matter of the plan of associa- tion, as declared to the public or associates, and that all such contracts, and all gains gotten by any such surrepti- tious proceedings, are in equity held to be in trust for the benefit of the corporation or association, and such body may recover the same from the wrong-doer. (Beck vs. Kantorowiez, Kalb vs. Same, Kantorowiez vs. Carter, 3 Kay & Johns. Y. G. R. 230, 241,) decided by Vice-Chan- cellor Sir W. Paige Wood, A. D. 1857. A director is a trustee for the stockholders and the creditors, and he is not permitted by law to make contracts for his own ad- vantage, in reference to the trust property, or his duties in reference thereto, and all such transactions are held illegal. (lb. and Fuller vs. Dame, 18 Pick. Mass. R. 472.) In the last case an action was brought on a note given TREASON. 323 by a man, who was a director in a rail-road and land com- pany, and who, to induce a location of a depot on land given by the land company, gave the note on. a secret agreement, was held illegal, as the agreement was against public policy and void, as a director cannot legally stipu- late for his private advantage, as thereby a conflict of in- terest would arise and the public interests might suffer. In Foster and others vs. Essex Bank, and Vose vs. Grant, (15 Mass. B. 505, and 16 lb. 245,) the Supreme Court of Massachusetts held, that if the directors of a corporation divide up the corporate funds, leaving debts unpaid, it would be a violation of duty that would make the directors personally liable to the parties injured by such wrongful act. Upon principle, directors are personally liable to any party injured by any wrongful act or omission of duty. TREASON. Sec. 40. The security of the national government against overthrow by violence, and the enforcement of the laws of the Union are provided for in our republic by giving to the national government the purse and the sword for that and other national objects. It is the duty of the national government to preserve the State governments as well as itself from destruction by forcible revolution. (Const. U. S. art. 3, § 3. lb. art. 4, § 4.) The third article of the Constitution declares that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort ; that no person shall be convicted unless on the testimony of two witnesses to the same overt act, or on confession in open court, and that Congress shall have power to declare the punishment of treason ; but no at- 324 TREASON. tainder of treason shall work corruption of blood or for- feiture, except during the life of the person attainted. Treason, under our Constitution, can only be com- mitted by acts pursuing a criminal intention. In the case of Bollman and Swartwout, the Supreme Court of the Union decided, that to commit this crime war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspira- cy is not treason. To conspire to levy war, and ac- tually to levy war, are distinct offences. Again, the court say : That to complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design ; that in the case then before the court, a design to over- throw the government of the United States, in New- Orleans, by force, would have been unquestionably a de- sign which, if carried into execution, would have been treason ; that the assemblage of a body of men for the purpose of carrying it into execution would amount to levying war against the United States ; but that no con- spiracy for this object, no enlisting of men to effect it, would be an actual levying of war. The court cite, with approbation, Judge Chace's opinion on the trial of Fries, that if a body of people conspire and meditate an insur- rection to resist or oppose the execution of any statute of the United States by force,, they are only guilty of a high misdemeanor ; but if they proceed to carry such inten- tion into execution by force, that they are guilty of the treason of levying war ; and the quantum of the force employed neither lessens nor increases the crime; whether by one hundred or one thousand persons, is wholly imma- terial. The same principle was laid down on Burr's trial, (1 Burr's Trial, 44 ; 2 lb. 427, 430, 442, 444,) by Chief Justice Marshall. (U. S. St Trials, 534, 535.) TEEASON. 325 It has been held, in The United States vs. Vigol, and United States vs. Mitchell, (2 Ball. 346, 348,) that an in- surrection to compel United States officers to resign, and thus defeat the performance of their duties, under an act of Congress, was treasonable. The court, in the case of Bollman and Swartwout, (4 Cranch, 125,) say: It is not the intention of the court to say, that no individual can be guilty of this crime "who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in a general conspiracy, are to be considered as traitors. Judge Iredell, when John Fries was indicted, stated to the grand jury that if, in the case of the insurgents who might come under their consideration, the intention was to prevent by force of arms the execution of any act of Congress of the United States altogether, any forcible opposition calculated to carry that intention into effect, was levying of war against the United States, and of course an act of treason. (JJ. S. St. Trials, 480, 537, 634, 635.) This opinion was quoted with approbation by Chief Justice Marshall, in giving his opinion in Burr's case. (2 Burr's Trial, 437.) A conspiracy to subvert by force the government of the Union ; violently to dismember the Union ; to compel, forcibly, a change in the administration ; or to coerce the repeal or adoption of an act of Congress by compulsion, is a conspiracy to levy war against the United States ; and, if carried into effect by the actual employment of force, by the embodying and assembling of men, whether with or without arms, for the purpose of executing the treasonable design previously conceived, amounts to a 326 TEEASON. levying of war, and is treason. (2 Burr's Trial, 439, 441—444. Fries' case, U. S. St. Trials, 480, 537, 634, 635.) In Burr's case, Chief Justice Marshall, in explaining the opinion of the Supreme Court before given, said : That the court unquestionably did not consider arms as an in- dispensable requisite to levying war; an assemblage, adapted to the object, might be in a condition to effect or to attempt it without them. (2 Burr's Trial, 444.) A military assemblage in arms, for the purpose merely of foreign conquest, if its object was to make war upon a nation at peace with the United States, would be a high misdemeanor, but not treason against the United States. (4 Crunch, 125.) Our acts of Congress declare, that all persons owing the United States allegiance who shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. (1 U. S. St. L. 112.) Foreigners, within our territory, owe a temporary alle- giance to the Union, and may there commit treason. (Wheat. Hist. L.N. 111.) Any such persons, owing allegiance to the United States, and having knowledge of any such treason, who shall con- ceal it, or fail to disclose it to the President or a judge of the Union, or to the governor of a State or State judge, are, by the act of Congress, declared guilty of misprision of treason, and are to be imprisoned not exceeding seven years, and fined not more than one thousand dollars. (1 U. S. St. L. 112.) TREASON. 327 A party charged with treason is, by the act, entitled to a copy of the indictment, a list of the jury and witnesses, and their names, with their places of abode, at least three entire days before the day of trial. He is also entitled to defence by counsel, and the court is required to assign counsel to defend the accused, and to grant process for his witnesses. (lb. 118.) A conviction works no corruption of blood or forfeiture of estate. (lb. 117.) The offences of treason and misprision of treason are barred, unless an indictment is found within three years after the offence is committed. (lb. 119.) Such are the humane and wise laws of the Union to protect our citizens from constructive treasons, which in monarchies have been freely used to destroy political op- ponents and sweep their estates into the king's coffers, under legislative bills of attainder, or royal or judicial decrees. Benign as our law is, it is a tower of strength for preserving the omnipotence of law and the fidelity of our citizens. It is obvious that treason or misprision of treason can be committed within or without the Union by our own citizens, but that no foreigner can commit the crime, unless he owes a temporary allegiance to our laws and is actually within the United States. It is obvi- ous, from the above exposition of the law of treason, and from the acknowledged principle that acts of Congress are the supreme law of the land, that any attempt to de- feat in any State or district of the United States the ex- ecution of a constitutional act of Congress by means of a rebellion, would bring the conspiring insurgent parties within the act of Congress against treason. State legisla- tures and individuals may lawfully pass resolutions and present petitions to influence the national legislature by argument ; but cannot resist the execution of a constitu- tional law of Congress by force with impunity. And the 328 TREASON. Supreme Court is the ultimate tribunal whose decision upon the constitutionality of an act of Congress is con- clusive. That tribunal is the constitutional umpire of the States of our Union, and its decision is final in all controversies between the States, and between the Union and any State, or between the Union and an individual or body corporate. (11 Pet. 209. 16 lb. 314 7 How. 679. 5 lb. 343. 3 lb. 318. 5 Cranch, 115. 5 Wheat. 264, 598.) No State can make war upon another State. The provision of our Constitution making the Supreme Court the umpire is obviously necessary to the steady and peaceful enforcement of our treaties, Constitution and acts of Congress. All human experience has shown that there will be a diversity of opinion on questions of law and public policy. Hence the convention, in framing a Constitution for our republic, referred for final arbitra- ment and enforcement to the Supreme Court of the Union, all questions between two or more States, or between the Union and any State, and the decision of that court in favor of any right secured by any of our treaties, by the Constitution or by act of Congress in pursuance of it, the President is bound to enforce by the whole military, mili- tia and naval power of the Union. (Const. IT. 8. art. 6, § 2 ; art. 1, §§ 1, 2, 8 ; art. 3, § 2. 1 U. 8. St. L. 424, § 2 ;. p. 85, § 25. 2.76.443.) It has been alleged that the resolutions of Virginia and Kentucky, 1798 and 1799, against acts of Congress, com- monly called the alien and sedition laws, affirm a different doctrine. (1 Calhoun's W. 358.) These famous resolutions were prepared by Jefferson and Madison. Mr. Madison, in a letter to Mr. Rives, our Minister to France, explained that the declaration in those resolutions, that if the acts of Congress complained of were not repealed, it was the TREASON. 329 right and duty of the States to interpose and seek a right- ful remedy, did not mean that any separate State should resort to any means of resistance, but the action of the States combined was contemplated. And he refers to the provision for calling a convention of all the States, on the application of two-thirds of the number, as the remedy intended. (Ch. 1, vol. 3, Am. Quart. Reg. 267, 268.) His letter to Mr. Webster is to the same effect. As Mr. Madison must have known the true meaning of his resolu- tions, the doctrine of nullification of an act of Congress by a single State or by rebellion is clearly not supported by them. -It would, indeed, be absurd for one of our numerous States to be allowed to put down and nullify by force a constitutional act of Congress within its borders, while all the residue of the States were obeying it. It is yet more absurd to allow a majority of a State legislature to sit as a national court and decide upon the treaties, Constitution and laws of the Union in the place of the Supreme Court, specially agreed on by all of the States for that purpose, and to exempt the people of such rebel- lious State from all national obligations that the State legislature may disapprove. If one State may do this, all may. Oyr system is not justly chargeable with any such self-destroying principle. (See ch. 1, and Madison's Let- ters.') Hence no pretended law of a State can nullify an act of Congress, or protect any person from the civil or criminal laws of the Union, or justify any use of force in resistance of the execution of a constitutional act of Congress, or an act which the court of dernier resort may ultimately de- cide to be constitutional. Giving aid and comfort to the enemies of the United States is treason against the United States, but is not treason against a State. And a State court cannot take cognizance of it. (Jtawle on the Const. 306. 11 Johns. 330 TREASON. B. 553, 554. Story's Com. on the Const, vol. 2, p. 543, note.*) Treason against a State is an attempt to overthrow a government, or to defeat a State law by rebellion and the employment of force. It is an offence against the State municipal authority. In such cases of powerful resistance by force to State law, a State legislature may declare martial law, and employ the State militia to suppress the rebellion, and aid the civil authorities to enforce the laws of the State. A State may also pass laws and punish treason against the State. (2 B. S. K Y. 546, § 2. Bhode Island Act of January, 1838, to punish offences against the sovereignty of the State, and Bev. Laws of Vir- ginia of 1819, ch. 162, p. 560, and other like State laws. Const. Wisconsin of 1848, art. 1, § 10. Luther vs. Bor- den, 7 Row. 39—43.) The Constitution of California thus defines treason against that State : " Treason against the State shall con- sist only in levying war against it, adhering to its ene- mies, or giving them aid and comfort. No person shall be convicted of treason, unless on the evidence of two witnesses to the same overt act, or confession in open court." •3 In the case of Luther vs. Borden et al. (7 How. B. 39, 40, 42, 43,) it was held by the Supreme Court of the United States, that it belonged to the old charter State government of Rhode Island to decide upon the mode of establishing a new constitution, and when it was to be superseded by a new State government ; that the question was not a judicial one, but was political, and that its de- cision belonged to the established State legislative power ; that the duty of the national government, under the fourth section of the fourth article of the Constitution of the Union, to guarantee to each State a republican form of government, and on application of the executive or legis- TREASON. 331 lature, to protect each State from domestic violence, it rests with Congress to decide what government is the established one in a State; and that, pursuant to this authority, Congress, by the act of February 28th, 1795, provided that, in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legis- lature of such State, or of the executive, (when the legis- lature cannot be convened,) to call forth such number of the militia of any other State or States as may be applied for, as he may judge sufficient io suppress such insurrec- tion. That by this act, the power to judge of the exi- gency calling for national interference rests solely with the President. That the legislature of Rhode Island had legal authority to declare martial law to put down an in- surrection ; and that officers engaged in its military ser- vice might lawfully arrest any one who, from the informa- tion before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched, when there were rea- sonable grounds for supposing a traitor might be there concealed. This case settles the doctrine that an existing State government cannot be displaced by a new one, except by a convention elected pursuant to a law, and by a new con- stitution formed and adopted pursuant to a law of the old State government ; that a State legislature cannot estab- lish permanent martial law, but may authorize the exercise of temporary martial law to put down insurrection ; and that the State government must judge of the degree of force necessary to put down the rebellion. This decision is a simple and judicious application of the great republican doctrine, that all changes in our State or national constitutions must be effected, if at all, peace- ably by votes and not by the sword. 332 DISTINCTION BETWEEN TREASON, 743, § 7.) In ascertaining what land has been separated, from the public domain of a State or of the Union, the principles applicable to nations apply. And prima facte all grants made and patents executed by the customary granting officers or body, whether it be the executive, legislative or commissioners, are valid ; and the party asserting the ille- gality or invalidity of the grant, must prove it in the mode and by the proceedings prescribed by the lex fori. (Arredondo's case, 6 Pet. 726—730.) TRANSFER OF UNITED STATES PUBLIC DOMAIN. Sec. 14. Titles to any part of the public domain of the Union can be passed to individual citizens or foreign- ers only pursuant to the laws of the United States, and no State law can declare the effect of a certificate of a register or other officer as to transferring title from the United States. Acts of Congress, and acts done pursuant to them, are the only tests of national grants and of their legal effect. Upon this principle, in Wilcox vs. Jackson, (13 Pet. 450 — 517,) it was decided by the Supreme Court of the United States, that, where a register and receiver allowed a pre-emption right to a lot not subject to pre-emption, and received payment and gave a certifi- cate to the purchaser, no title passed ; and that any State law declaring such certificate evidence against the United States of title, when by acts of Congress the patent alone or an express aet of Congress is necessary to pass the title, is unconstitutional and void. It was held, that the power to dispose of the public lands is exclusively in Congress, and hence no State law can interfere with their disposition. (See, also, 14 Pet. 537. 4 Wheat 422. 1 Pet. 542.) TRANSFER &¥ TOITED STATES DOMAIN; 411 All acts of United States officers, relative to the national public domain, not authorized by act of Congress^ are void. (14 Pet. 421. 13 lb. 511.) Where the title has been granted and completed by patent or act of Congress, and there is a conflict of claims and equities, these may be decided upon by the State courts according to the State law, provided it be not in conflict with any act of Congress: (13 Pet. 317. 1 lb. 655, 664. 2 How. 284.) And the Supreme Court of the Union, on appeal from a State court, will follow such State decisions and State laws. (1 Pet. 654, 664.) Where a portion of the public domain has been sold and paid for, and an official certificate has been given therefor, it becomes subject to State taxation, as indivi- dual property ; though the patent may not have issued for it to the purchaser, he being the equitable owner and the United States holding it in trust for him. And such equitable ownership may be recognised and protected by State laws, and it may be sold on execution, and may de- scend to a man's heirs, or be devised according to the left Ioti, the State law. (3 How. 461, 463. 4 lb. 17, 19.) In Bagnell vs. Broderick, (13 Pet. 450, 451,) the Su- preme Court of' the United States held that Congress had the sole power to declare the dignity and effect of titles emanating from the United States ; and that the national legislation made the patent superior and conclusive evi- dence of legal title. But the court said they had no doubt of the power of the States to pass laws authorizing purchasers of lands from the . United States to prosecute actions of ejectmeut, upon certificates of purchase, against trespassers on the lands purchased ; but we deny (say the court) that the States have any power to declare certifi- cates of purchase of equal dignity with a patent. Con- 412 TRANSFER OF UNITED STATES DOMAIN. gress alone can give them such effect. (See, also, 13 Pet. 416, 417.) A patent by the government to an individual or corpo- ration, pursuant to a statute, appropriates land, and severs it from the public domain. Any preliminary steps re- quired by law, are cured by the patent, and the patent takes effect from its date, and is conclusive against all those whose rights did not commence previous to its ema- nation. Courts of equity have considered an entry the commencement of a title, and have sustained a valid entry against a patent founded on one of a prior defective entry, if issued after such valid entry was made. They have never sustained an entry made after the date of the pa- tent. (12 Wheat. B. 214.) Hence the Supreme Court of the United States have held, that if a patent is fair on its face, the court will not look behind it for irregularities. (lb. and 12 Pet. 298.) The death of a grantee, when the patent issued, is an extrinsic fact, not impairing the equity of those who as heirs, devisees or assigns, are entitled to the land. (12 Pet. 298, 299.) Hence the same court has adopted the rule, in deter- mining what grants of former governments are valid in territories and States ceded to our Union, and that the acts of an officer to whom a duty was assigned by his king, within the sphere of that duty, are prima facie taken to be within his power ; and that those who would controvert a grant executed by lawful authority, with all the solemnities required by law, must prove that the officer transcended the powers conferred upon him, or that the transaction is tainted with fraud. (12 Pet. 437, 438. 8 lb. 452, 453, 455, 464. 9 lb. 134, 734, 745. 6 lb. 727. 10 lb. 331. 2 How. U. 8. B. 318, 319.) The same rule applies to legal proceedings of local offi- TRANSFER OF STATE DOMAIN. 413 cers necessary by former foreign law to pass titles. (12 Pet 438. 8 lb. 310.) A grant may be made by a patent pursuant to law, or it may be made by a statute, or it may be confirmed by a statute, and thus the land may be separated from the public domain. If a patent is not issued pursuant to law, it is void and passes no title. (2 How. U. 8. B. 318.) If a patent has been given of public land by a State or national government, the grantor may institute proceed- ings and set aside for fraud, but a third person cannot in ejectment raise the question of fraud collaterally. (19 Row. 323.) It follows, from these authorities, that all title to the public domain must be made under and pursuant to acts of Congress ; and that no State law can regulate or de- clare the effect of an inchoate title or official certificate of sale ; but it may protect an equitable title to public lands by laws not in conflict with acts of Congress. TRANSFER OF STATE PUBLIC DOMAIN. The same principles apply to sales and transfers of pub- lic lands owned by the States. The laws of the States, respectively, declare in what manner and by whom the public lands shall be sold and conveyed, and the effect of all inchoate transfers and patents. These laws of the respective States regulate exclusively transfers of public lands lying within their limits, except where acts of Con- gress, donating lands to States, have prescribed condi- tions relating to their transfer, price, &c. In such cases the conditions must be complied with to make a perfect title. Where States own lands in other States, they hold as ordinary proprietors, unless a compact between the two States, or between a State and the United States, 414 CONSTRUCTION OF STATE GRANTS. shall otherwise provide. In ; such case the lex loci pre- vails as to the mode and solemnities of transfer, (10 Wheat. .192,) and the law of the proprietor State regu- lates the terms of sale, and by whom it .shall be sold, price, &e. These must be complied, with to .transfer a perfect title. In all cases where the State officer, conveying State lands, has no legal authority, or the State does not own the lands sold, the transfer is void. (5 Wheat. 293, 308. 2 Dull. ,305. 9 Crunch, 87.) Any grant by a nation or State of land not owned by it is void. (5 Wheat. 308, and cases above cited. .12 Wheat. 523, 527—529, 534, 535, 544.) CONSTRUCTION OF STATE GRANTS. In Howard vs. Ingersoll, (13 Mow. ,381, 411^418,) it was decided that, where the State of Georgia made a ces- sion to the United States of land and jurisdiction of terri- tory west of the Chattahooche River and along the west- ern bank thereof, ; the bed of the river remained to Geor- gia, and that the boundary line ran along the top of the high western bank, leaving the bed of the river and the western shelving shore within the jurisdiction of Georgia. In Kingman vs. Sparrow, (12 Barb. B. 202, 206,) the Supreme Court of New- York held, that a grant by the State, bounded on Niagara River and along the same, is limited by the margin of the river. In the case of the Commissioners of the Canal Fund vs. Kempshall, (26 Wend. 404;) the Court of Errors of New- York decided, that a grant of land fronting on the Gene- see River at Rochester, passed the (title to the centre of Genesee River, and that the State was bound to pay damages for the diversion and obstruction of its waters to the injury of the riparian owner. PUBLIC DOMAIN AND NAVIGABLE WATEES. 415 The same court re-affirmed this doctrine in Child vs. Starr, (kHill, 369, 372,) and the court held, that where a grant was bounded on a creek or innavigable river, it car- ried the soil and fisheries to the centre, unless a different intention was shown by the instrument or grant. (Chan- cellor Walworth cited and relied on 26 Wend. 404. 15 Johns. 454. 6 Conn. 471, 474. 3 Kent's Com. 432, 434. 4 Mason's B. 349. 6 Mass. B. 435. 17 lb. 298. 5 Wend. 543. 4 Burr. 2164. 6 Cow. 376.) In Pennsylvania the Supreme Court of that State de- cided, that a grant of land bounded by navigable waters extended only to low-water mark. .(7 Penn. St. B. 201. 2 Binney's B. 476. To same effect, see 6 Humphrey's Tenn. B. 366—368.) Each State has adopted portions of the common and civil law as to grants, their construction and effect, and has, by its policy or statutes, modified it to suit its cir- cumstances. These various and varying laws govern all State grants and deeds of realty within our States, sub- ject to constitutional limitations. All grants by our republic, or by any State, are to be construed strictly, and they are not to be extended by construction. (8 How. 581. 4 Mass. B. 523, 524, 528.) Pre-emption is a right in the public domain by- public policy, and is a substantial right, subject to conditions of payment of the price of settlement and cultivation, and when these are performed, the title becomes perfect. If the pre-emptor is prevented from performing these condi- tions by a public officer, and he has done all in his power to comply with them, the law will, protect him. (9 How. B. 314, 333.) PUBLIC DOMAIN AND NAVIGABLE WATERS. By our settled American law — 1. The shores of navigable waters, and the soil under 416 PUBLIC DOMAIN AND NAVIGABLE WATERS. them, were not granted by the Constitution to the United States, but were reserved to the States respectively. 2. The new States have the same rights, sovereignty and jurisdiction over this subject as the original States. 3. That grants of land bounded on such navigable wa- ters generally reach only to high-water mark. 4. That upon the formation of a new State it acquires no jurisdiction over or title to the national, public do- main, except that the State may take by eminent domain, for municipal objects, so much thereof as may be needful, paying for the same, excluding, however, all military positions and other property devoted to specific national objects, as dock-yards, custom-houses, arsenals and the like. Over these the State has no such right. 5. That, though the States may own the soil under navigable waters below ordinary high-water mark, such waters shall forever remain public highways, and free to all the citizens of the United States, without tax, impost or substantial obstruction imposed by any State. 6. That the navigable waters within each State have been dedicated to the use of the citizens of the United States, so that it is not competent for Congress to grant a right of property in the same. 7. That the term navigable waters reach the line of ordinary high-water mark. That Congress has no right, beyond such high-water mark, to grant the soil under water, as that is a part of the constitutional municipal property of an existing or future State. 8. That Congress can grant no exclusive right or con- trol over any naturally navigable waters, as the Constitu- tion of the United States vests a common and equal right of navigation in all the citizens of the United States. (16 Pet. 252, 253. 3 How. 230. 13 lb. 519.) DEDICATION. 417 DEDICATION. Sec. 15. A valid dedication of land for a public use may be made by the legal or equitable owner of it by parol, by acts, by deed, by "writing or by making a map of a plat of ground and laying down on it streets, alleys or places for parks, levees, markets, burying places or public buildings, and selling lots, referring to such map. And no trustee or grantee is necessary to give it effect. (6 Pet. 431, 498. 10 lb. 662. 11 Barb. R. 462. 18 Ohio R. 18, 94. 9 B. Monroe's R. 200. 19 Conn. R. 265, 266, 268. 11 Penn. St. R. 444, 446. 2 Pet. 256. 3 Gushing 's Mass. R. 290. 4 lb. 332. 1 How. Miss. R. 379. 19 Wend. 128. I Paige's Ch. R. 510. QHilVsK T. R. 407, 411.) In many cases of dedication the original naked title re- mains in the dedicator, subject to the uses and trusts of the dedication, and in cases of misapplication of the property by the cestui que trusts, or of intrusion by the donor or others, the remedy of a party in interest is by applying to a court of equity to compel a use of the property ac- cording to the dedication. (6 Pet. 431. 9 B. Mon. R. 201. 4 Paige's Ch. R. 510, 515. 5 Earn. 298. 7 lb. 217. 6 HiIVs N. T. R. 407. 16 Pick. R. 525.) If a street be dedicated, and afterwards a municipal cor- poration orders it opened to the public, the owner is en- titled only to nominal damages. (19 Wend. 128.) "Where streets, alleys or places for some public use are laid down on a map, and lots sold in reference to the map, the holders of any of the lots in the tract of land so map- ped, become owners of a right to the free and unob- structed use of the streets and alleys laid down on the map, whether they are then actually opened or not, and to have all the dedications declared by the map or other- 27 418 DIVESTMENT OF PUBLIC EIGHTS. wise carried out. (4 Paige, 510. 4 Gush. B. 332. 19 Wend. 128. 1 Sumner, 21. 2 Milliard's Real Prop. 74. 16 Pick. Mass. B. 512, 520, 522, 524.) But to enable a municipal corporation to control such dedi- cated streets and alleys, regular proceedings must be adopt- ed to open them for public use. (2 Selderis Ap. B. 257.) Any person owning such franchise, or the dedicator or his heirs, may enforce the use of dedicated property, in equity, agreeable to the dedication. (See above cases.) The use of dedicated property is evidence of an accept- ance of the donation. (lb.) The period of such is not material. (19 Conn. B. 268. 6 HilVs K Y. B. 413, 414.) DIVESTMENT OP PUBLIC RIGHTS. Sec. 16. Dedicated property may be abandoned for every public purpose, and then the full title of the dedi- cator ought, it would seem, to revest in him, his heirs or assigns. A renunciation by the parties interested in it ought to cancel a dedication. (Harringi. Mich. Gh. B. 404. 6 Hill, 414. 19 Wend. 659. 1 Sumner, 21. 2 Milliard's Beal Prop. 74.) Where property has been taken by eminent domain , for a public object, and the fee paid for it applied to another public or quasi public purpose, pursuant to a statute so directing, the title does not on that account revest in the original owner, nor is he entitled to a new compensation for the land already paid for. (4 Gush. B. 152. 9 Barb. 350. 5 Paige's Gh. B. 137.) If property be taken in fee by eminent domain for an almshouse, penitentiary or other public edifice, and paid for, an absolute title vests, and upon a subsequent abandon- ment of it for such purpose, the title does not revest, but the State or municipal corporation owning it may sell it (2 Selden's B. 214. 8 Barb. 486.) DIVESTMENT OF PUBLIC BIGHTS. 419 If land is so taken in fee and paid for, for a canal, rail- way or road, and it be abandoned, the title revests in the owner in certain cases, as the taking was for such special object. (11 Barb. 26. Oh. 3, § 12.) The same principle seems to apply to land and water rights taken for public mills, ferries and other similar pur- poses. If such public object is abandoned, and the pre- mises are not devoted by law to some new public use, they revert, it seems, to the original owner. (lb.) Where such dedication or taking by eminent domain of property for a public use has occurred, and the pro- perty is subsequently applied to a private use, to the injury of any party, a court of equity will enjoin against such misappropriation of it. (5 Paige, 137, § 15. 6 Ham. 298. 7 lb. 217.) In such cases, if the property is wrongfully applied by consent of the party complaining, or if prescription or the statute of limitations has perfected the right of such use or abuse by lapse of time, the title thereto becomes complete. If not, any party in interest has his remedy. (1 Sum. B. 21, and cases above cited.) In Adams vs. Saratoga and W. R. R. Co., (11 Barb. B. 449v 450,) it was decided by the Supreme Court of New- York,. the accurate and sound jurist, John Willard, presiding justice, giving the opinion, that the laying out a piece of land as part of a village plat, and selling lots adjacent to a street thereon, is a dedication of such street for that object, and that it was not competent for the party mak- ing it to re-assert any right over the land, as long as it remained in public use ; that the temporary occupation of part of such street to construct a rail-road tunnel under such street, and its obstruction for that purpose, provided it was afterward left free and open for use as a street,. pursuant to the rail-road charter, was legal. And that,, though individuals residing on such street, during the 420 DIVESTMENT OF PUBLIC EIGHTS. construction of the tunnel, might suffer a temporary in- convenience, in the absence of negligence and unskilful- ness, the rail-road company was not liable to damages, and that it was a case of damnum absque injuria. And that the dedicator or his heirs could not revoke the dedi- cation for this cause, and that neither of them can recover back the dedicated property in ejectment unless they should prove that the whole purpose has ceased for which the dedication was made, and that the ultimate fee re- mains in the party claiming, (pp. 451, 454.) In Clements vs. West Troy, (16 Barb. 203,) Mr. Justice Harris decided, that where a person makes a map of land, laying down on it lots, streets or alleys, that thereby the owners of such lots and the proprietors have a right of way over such streets and alleys, and might institute proceedings to free them from obstructions ; but that a city or village corporation cannot avail itself of such de- dication until it accepts it, by instituting the proceedings which the law has prescribed for laying out highways, streets or alleys. The Supreme Court of the United States, (9 How. U. S. B. 30, 31, and cases there cited,) show, that a dedica- tion of land to a public use, to be effectual, must indicate an abandonment of the use exclusively to the community by the owner of the soil ; that such dedication to public use must rest on a clear assent of the owner, made by deed or by unsealed writing, expressing such assent, or, as no fee in the land, but only an easement generally is given, it may be by parol or by acts inconsistent and irreconcil- able with any construction except such consent. (See 11 Bast, 370. 3 J. B. 265. 3 Bing. 447. 22 Pick 75. 7 Leigh. 546, 665. 8 Adol. & Ellis, 99. 1 Hill, 189, 191. 6 Pet. 431, 437. 19 Wend. 128. 10 Pet. 712, 718. 2 lb. 508. 3 Kent's Com. 428, 450. 7 Johns. 106. 12 Wheat. 582. 9 Cranch, 331. 4 Paige, 510. 12 Wend. ROMAN TITLES. 421 172. 19 Pick. 406. 7 How. U. S. E. 196. 2 Selden's N. T.R. 263, 264.) Where an owner surveys and maps his own land, dedicat- ing streets and squares to the public, this does not impose on the public authorities the duty of improving and keeping the same in repair, until they shall duly accept such dedi- cation. (2 Selden's E. 263, 264.) That, if land in a city or village is dedicated upon condition of certain improve- ments thereon by the corporation, and the same is ac- cepted, and the condition is not performed, an action for damages will lie, or a bill in equity may be filed to com- pel the corporation to perform its contract and execute the public trust. (11 Paige's Oh. B. 414, 424—426.) Where a man sells lots with certain limitations of use of the residue, for the benefit of the grantees, and cove- nants against nuisances and depreciating improvements, a court of equity will enforce such protective contracts, as among the grantees as well as against the grantor. (8 lb. 351, 358, 359.) BOMAN TITLES. Sec. 17. Among the Orientals and Romans, according to the able and learned Niebuhr, the principle that the national sovereignty was the original owner of all realty, and that all private titles were derived from it, was gene- rally adopted and acted on. In the Eoman commonwealth all territory was obtained by violence and war, and rarely, if ever, by purchase and free cession. As the Roman conquests extended, a portion of the conquered lands were seized as public domain, and prisoners of war, and sometimes non-combatant enemies subdued, were sold as slaves at Rome, and were generally purchased by the patricians and rich Romans. The Lici- nian law, and other agrarian laws regulating the use and 422 ROMAN TITLES. disposition of the domain, allowed the possessio or use for a small rent, and sometimes gave titles in fee to all Ro- man citizens, nominally, on terms of equality. But the oligarchy, in violation of the theory of the laws, secured to themselves a large share of the Roman domain, and held it without rent, which they cultivated by slaves, to the exclusion of the plebs, or common people. The oli- garchs early made a law to sell a debtor and his children as slaves for debt. By this law, by usury and illegal ap- propriations of the public domain, by engrossing the high offices and a large share of the booty in wars, the Roman oligarchy became very rich in lands, slaves and person- alty, and oppressors of the plebs, or common people, as well as the robbers and pillagers of foreign nations. The effect was a concentration of most of the national lands as well as of the small farms, and of all industrial occupa- tions in the oligarchs and their slaves, and dependence, poverty arid misery among laboring freemen. Licinius, the elder Cassius, the two Gradchi, tribunes of the peo- ple, Caesar, the great Roman consul, statesman and gene- ral, and others, labored to enforce the agrarian laws with .a view to secure the Roman plebs fee-simple farms out of the public domain, and thus save them from poverty and ruin. These noble statesmen were untruly charged by the oligarchs with aspiring to the imperial crown, and designing to divide the lands of the rich among the poor, and one was murdered under a judicial sentence, and the residue were assassinated by the consuls, the patricians and their retainers, to save, as they pretended, the sanc- tity of private property and the republic, so-called, from overthrow. Cassar made a decree, in the plenitude of his power, that a certain portion of the labor of Italy should be performed by free Romans, for the purpose of securing to them a part of the profitable employments engrossed by slaves. This decree probably caused the patrician FRANCHISES. 423 conspiracy and his murder, as it had before done in the case of the Gracchi. Thus the Roman agrarian laws were overthrown, and the Roman oligarchs, war, slavery and violence destroyed the last remains of Roman virtue, lib- erty and security, erected the throne of the Caesars, and prepared Rome for her decline and fall. FRANCHISES. Sec. 18. Franchises, in kingly governments, are a part of the king's prerogative, and are esteemed royal privi- leges subsisting in the hands of a subject, and which can there only be obtained by grant from the crown, or by prescription, which presupposes a grant from the sove- reign. (4 GomyrCs Dig. Day's ed. 1824, p. 450, (A. 1,) n. a, b, c.) This species of prescription in England was applied only to things capable of perpetual duration. The words franchise and liberty are held synonymous, and mean governmental leave to use certain governmen- tal powers and rights, for the purposes and in the manner prescribed by public authority. {lb-) By the Code Napoleon prescription in favor of the nation exists, as well as in favor of private persons. ( Code Napoleon, B. 3, c. 1, § 2227.) In the United States all franchises are constitutionally a permanent part of the legislative power, are statutory creations, and are granted and regulated by special or gen- eral statutes, which affix to each its legal rights, duties and qualities, making it a legal being, such as the statute or statutes shall by express provisions prescribe. (13 Peters' B. 595. 23 Wend. 554. 8 How. U. 8. B. 581. 10 lb. 511, 534. 3 Duer's B. 127, 142. 11 Pet. 545. 8 lb. 738. 9 Roto. U. S. B. 603. Angell & Ames on Corp. 3d ed. 3, 697. 15 Johns. B. 387. 1 Ohio St. B. N. S. by McGook, 685, 686. 11 Wend. 586. 5 Johns. B. 175, 424 FKANCHISES. 176. 7 Qrattaria Virg. B. 225—229. 1 Black/. Ind. B. 405. 26 Vermont B. 721. 14 Illinois B. 867. 13 lb. 28. 8 Maine B. 365. 3 Missouri B. 470. 15 Pick B. 251, 252. 5 Yerger's B. 189. 10 lb. 280. 17 Conn. B. 454. 1 Bailey's 8. Gar. B. 472. 1 Greene's Iowa B. 498. Long's N. Car. Law B. 69. 6 Georgia B. by Cobb, 142. 6 Wheat. 593.) Banks, railways, bridges and ferries, granted and regu- lated by State legislatures, or Congress in the District of Columbia or in the national territories, are examples of franchises, and in construing their powers and rights, no- thing is taken by the grantee or grantees by construction, but he or they are limited to the privileges- expressly or by unavoidable implication granted by statute. (8 How. U. 8. B. 581. 5 Selden's B. 452. 11 Pet. 545, 546. 8 lb. 738.) Hence, a legislature is not precluded from granting rival and competing banks, bridges, ferries or other fran- chises, though the value of the first or former like grants might thereby be rendered valueless. (lb.') In our republic, therefore, as well as in England, a franchise not declared by statute assignable, cannot be assigned, or agreed, or substantially put under the control of any but the grantee. (5 Johns. B. 175, 176. 1 Black/. Ind. B. 405. 16 N. Y Ap. B. 161—168, n. 6 Eng. Law & Eq. B. 106, 110. 12 lb. 224, 228. 13 lb. 506—516. 26 Vermont B. 721. 14 Illinois B. 86, 87. 12 Barb. 61 —63. 22 Eng. Law & Eq. B. 198, 199. 3 Comst. B. 339, 342. 21 Barb. 221, 224. 3 Comst. # Y Ap. B. 242. 5 Law Beporter, 107, 108. 82 Eng. Com. L. B. 396, 397.) A grant of a franchise raises a promise, by implication of law, on the part of the grantee, to perform its duties. (16 N. Y. Ap. B. 162—165, 168, and notes.) If franchises are granted on conditions, they must be FKANCHISES. 425 complied with, or the government may, by a proceeding in the nature of a quo warranto, oust the grantee of his privileges. (23 Wend. 537, 544, 550. N. T. Code, §§ 432 — 441.) And where a bridge or railway is not con- structed on the route or in the manner allowed by law, it may be indicted by the attorney-general and abated. (16 N. T. Ap. R. 162. 3 Gray's Mass. R. 347, 353.) The legislature may regulate the use of all franchises in its discretion, subject to constitutional limitations, as they are a part of the sovereign power, and as such may be controlled and regulated by the law-making power. (10 Row. U. 8. R. 534.) A grantee of a franchise, as of a rail-road, ferry, &c, for a term of years, has a duty for the term, and he can free himself from it only by a surrender of it to the govern- ment, and by its acceptance or by a judicial dissolution. Sec. 19. Hence no title to such powers can be estab- lished by use, prescription or usurpation, (lb. and 10 Row. U. 8. R. 534. 18 Johns. R. 229. 4 Mass. R. 522.) In Auburn and Cato Plank-Road Co. vs. Douglass, (5 8elderfs N. Y. R. 452, 453,) the Court of Appeals of New- York held, that, unless a land proprietor had a right to restrict the use which the proprietor of such adjoining tenement should make of his . property, no action would lie for acts done by such proprietor upon his own land, however great the damage caused thereby, and whatever his motive might be in such user (5 lb. 449, 450.) The court also held (p. 451) that the extent of the plaintiffs' franchise was to be determined by the terms of their charter, and the only right of the plank-road company to make a road, take tolls and erect a toll-gate must be expressly granted in the charter ; and as the charter gave no right to restrict the proprietors in the use of their land, that the defendant had a right to make a road on his own land, parallel to the plank-road where the toll- 426 FRANCHISES. gate was placed, which was used by defendant and others. They held, that the plaintiffs took by implication no right to prevent such parallel road, though to the great injury of plaintiffs. The court held, (pp. 452, 453,) that Chancellor Kent's doctrine on this subject was overthrown by the Warren Bridge case, (11 Pet. 429,) and by other authorities. The court held, as a general principle, that a corpora' tion is strictly confined to the privileges conferred by its charter, and can take no implied rights as against the law- making power, and that, a fortiori, it cannot be permitted to encroach by implication upon the rights of individuals, who are in no respect parties to the compact between the legislature and such corporation. The law is settled in this country that no franchise can be taken from the government by usurpation or prescrip- tion, but only by legislative grant, and that in construing the grant it is taken most strongly against the grantee or licensee, and that all doubts are to be taken most favora- bly to the government, as it is the legal trustee of the people, and the same rule prevails whether the State or private persons are the contestants. (8 How. U. 8. B. 581. 5 Seidell's It. 451 — 453. Plank-Road case and above cases.) In Mechanics' Bank vs. New- York and New-Haven R. R. Co., (3 EernarCs R. 599, 620, 624,) the Court of Ap- peals of New- York decided, that a corporation of a fixed capital, divided into a certain number of shares, has no power to issue certificates beyond the legal number, or to increase its capital, and that all certificates of stock signed and issued by the transfer officer of the company, beyond the actual capital, and not really representing a part of it actually owned by the person named in such certificate, are illegal and void. That such over-certificates are void in the hands of the party named therein, or of his as- AMEEIGAN FEANCHISES. 427 signee, as the transfer officer as well as the corporation had no power to add to the capital or to issue such over- certificates, and that in consequence of such defect of authority, the corporation is not liable for damages for the wrongful issuing of such over certificates ; and that the takers of such certificates are bound to see that they represent real shares of stock, as between them and the corporation. The court also held, that a corporation might be sued for refusing to allow a transfer on their books of real shares of stock, and that a vendee might acquire, by assignment, a right in equity to stock, though by its by-laws all transfers must be on the transfer-book of the corporation. Where franchise is conferred, the express powers granted, and those necessarily incidental, alone pass to the licensee or grantee ; and hence a grant of a franchise to a person without express words authorizing assignment or perpetuity, as heirs or assigns, is personal, and a legisla- tive grant of a railway or other franchise will not author- ize a lease or transfer of it by the grantee, unless the legis- lature shall so expressly enact, and all contracts of lease^ not so authorized, are illegal. (5 Law Reporter, 106 — 108. 3 Comst. B. 242. 6 Eng. L. & Eq. 106, 110. 12 lb. 224. 13 lb. 506. 21 Barb. 224. 8 How. XT. S. B. 581. 5 Johns. B. 175. 13 Pet. B. 587, 595. 14 Illinois B. 85. 22 Wend. 554. 3 Duer's B. 120, 127, 142. 1 Comst. B. 318. 26 Vermont B. 721. 27 Penn. St. B. (3 Casey,) 351.) AMERICAN FRANCHISES. In Lew vs. Gainsville, (7 Ala. B. N. 8. 87,) the Supreme Court of Alabama held, that there were franchises for fer- ries which were deemed in England, by the common law^ hereditaments, which were capable of alienation and of descent. But the court say, that in Alabama " the whole 428 AMERICAN FRANCHISES. matter has been regulated by statute ; so that we must, therefore, look thereto to ascertain what rights appertain to the grantee of a ferry." In Somerville vs. Wimbish, (7 Grattan, 225, 229,) the Court of Appeals of Virginia held, that in Virginia, a ferry franchise in that State was the creature of statute law. In Fay, Petitioner, (15 Pick. Mass. B. 249,) the Supreme Court of Massachusetts say, that the king's license was necessary to set up a ferry in England, but add, " In this commonwealth it is regulated by statute." In Robins vs.Embry and others, (1 Smedes & Marsh. Ch. Miss. R. 207, 255, 265,) the Supreme Court of Chancery of Mississippi held, that in that State a corporation was the creature of legislative will, and had no such general powers or rights of property as belong to a private citi- zen. In this case it was held, that a banking and rail- road franchise was not assignable, though its real and per- sonal property might be, unless specially authorized by the charter. In St. Peter's Church case, (3 Comst. 242,) the Court of Appeals of New- York held, that a general assignment passed the corporate property, but not the franchise. The Supreme Court of the Union have held, that a cor- poration is an artificial being, invisible, intangible, and existing only in contemplation of law, and possessing only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very ex- istence, and that all franchises in our republic are created by general or special statutes, and that in construing the powers so granted by statute, the grantee or corporation take nothing by implication, and can exercise no privilege unless it is expressly granted. (4 Wheat. 636. 13 Pet. 587. 11 lb. 545. 8 How. 581. 21 lb. 442. 16 lb. 524. 9 lb. 172, 184. 10 lb. 511, 534. 18 lb. 74.) In construing all statutes of States or acts of Congress, AMERICAN FRANCHISES. 429 general and special, granting franchises of fisheries, wharves, piers, &c, in navigable waters, or to persons or corporations, banking, insurance, gas, manufacturing or other legislative powers known to our law as franchises, nothing is taken by implication by the grantees or cor- porations, {lb.) In our Union, all franchises being emana- tions from and a constitutional part of the legislative power, are subject to the above principles, and within the permanent control of the legislature for the public good. As a logical consequence, no franchise pan be mortgaged, assigned or seized on execution, as it is not property. (J&. 8 How. 581. 21 lb. 442. 3 Oomst. N. Y. E. 242. 5 Law E. 106.) The distinction between British franchises and our own is as marked as the character of the two governments. In England, the king originally aggregated all the ex- ecutive, judicial and legislative power of the realm ; hence he assumed that all things were subject to royal control. It appears there were three sorts of franchises : 1. Those where a royal charter must be presented to establish it. 2. Where a grant might be presumed and prescribed for, as a park, chase, warren, &c. 3. Parliamentary grants for canals, railways, turnpikes, banks, gas companies, &c. The latter alone have any analogy to our franchises, but our franchises differ from theirs, as they are emanations from and a constitutional part of legislative power. (lb. 10 How. 511. 21 lb. 442. 18 Johns. E. 229.) A corporation or the grantee of a franchise is bound by law to perform its legal duties in favor of the State and the public. The Court of Errors and Court of Appeals of New- York and the House of Lords in England have so held. (16 If. Y Ap. E. 161, 168, and notes. 5 Selden, 452. 23 Wend. 554.) 430 PUBLIC NUISANCES, ALLUVION — ISLANDS — RELICTION. Sec. 20. In case lakes, rivers or streams form the boun- dary between nations or States of our Union, all the islands and land on either side of it, including islands newly formed, and all gradual alluvions to the territory of each, belong to it. If a State of our Union borders a great lake or the ocean, and they gradually recede, the property of the adjacent proprietor advances to ordinary high- water mark, and beyond, to the extent of a marine league, the nation or State would own the soil. As all riparian owners have common and equal rights in adjacent waters, as a general rule each must so enjoy his right so as not to destroy or impair those of others. (Inst. Justinian, lib. 2, tit. 2, §§ 20 — 22. 3 Mass. B. 352. 10 Pet. 717. Code Nap. b. 2, tit. 2, §§ 556, 557, 559, 560, 562, 563. 5 Paige Oh. B. 158.) In case of a rapid change in the lake, river or sea-coast, it would not affect the titles of the States or persons own- ing the opposite sides of the original line, nor does a tem- porary branch of a navigable river, created by high water and enclosing a part of adjacent land for a time, change the boundary of a State, which is by compact ordinary low- water mark. (lb. and 5 Wheat. 374.) PUBLIC NUISANCES. Sec. 21. Any obstruction to the free use by the public of highways, of streets, of public grounds, of navigable waters, rivers, bays and lakes, where a right of navigation belongs to the community at large, is a public nuisance, unless the same is erected by the authority of the legisla- ture ; and the ordinary proceeding at law is by indict- ment or information, by which the nuisance may be OFFICES AND PUBLIC EMPLOYMENTS. 43 1 abated ; and the person who caused it may be punished. If any particular individual shall have sustained special damage from the erection of it, he may maintain a private action for such special damage ; because, to that extent, he has suffered beyond his portion of the injury, in com- mon with the community at large. (IT Conn. B. 372.) Besides this remedy at law, a court of equity may take jurisdiction in cases of public nuisance by an information filed by the attorney-general, and that court may, by injunction, in cases of great public concern, prevent their erection or perpetually enjoin against their continuanca This may also be done to prevent intrusion upon the soil under navigable waters, or between high and low-water mark, upon State canals, public lands, works and edifices. (12 Pet. 91, 97, 98. 9 Mow. U. 8. B. 10, 27—29, and cases there cited. 21 Barb. 617, 627—629. 6 Paige's Gh. B. 83—133. 6 Johns. Gh. B. 439. 2 Selden's B. 522. Eden on Inj. 1st Am. ed. 57, 58. 2 Story's JEJq. Com. §§ 205—208, 924, 925, 927. 13 Eow. 519. 7 Cushmg's B. 53, 101. 2 Wils. Gh. B. 101.) In enforcing this jurisdiction the court will employ a temporary or perpetual injunction, when and so far as necessary to prevent great or irremediable injury to the public. (/&•) OFFICES AND PUBLIC EMPLOYMENTS. Sec. 22. Offices and public employments are, in our republic, governmental means of executing the constitu- tional powers lodged in the various departments, and not a property or incorporeal hereditament in the office- holder. All offices, from the highest to the lowest, are personal trusts, and incapable of being deputed, unless the Constitution or laws shall so expressly provide ; and every contract to control appointments to such trusts, or to 432 OFFICES AKD PUBLIC EMPLOYMENTS. share their profits or to depute them, is illegal and void. (4 Comst. E. 455, 456. 9 Wend. 177. 2 EilVs E. 196— 200, 434. 1 Story's Eg. Jur. §§ 295, 296. 1 Selden's K Y E. 224, 285, 295. Maverick Ferry Steamer case, 5 Law Beporter, 108, 109, 114. Dunlap's Paley on Agency, ed. 1856, pp. 175, 176, and n. a. 18 Barb. 513. 5 Johns. E. 175, 176. 1 Blachf. Ind. E. 405. 1 Greene's Iowa E. 502. 8 How. U. S. E. 581. Chitty on Bills, Am. ed. 1849, pp. 82—84. 15 Wend. 416. 26 lb. 485. 4 Pet. 184. 20 Wend. 24, 390. 7 Mass. E. 118. 3 Merivale's E. 468, 470. 2 Wils. E. 133. BlacJcst. E. 322.) All such illegal contracts are void as to the public and third persons, as well as between the parties. (lb. 7 Mass. E. 118. 3 Bay's E. 145. 4 Comst. E. 455, 456. 5 Selden, 452, 453. 19 N. Y Ap. E. 161, n.) The privity and efficiency of all governments depend on these principles. Hence, every contract to derange, defeat, change or corrupt the action of any department of the government, or to affect its offices or its action, are ille- gal and void between the parties, and as to third persons and the public. In Waterman's edition, of 1856, of Dun- lap's Paley on Agency, pp. 175, 176 and note a, this doc- trine is well laid down. It is there affirmed that no dele- gated authority can be executed except by the person to whom it is given ; for the confidence being personal, can- not be assigned to a stranger. A power to sell any thing, therefore, being personal, cannot be deputed without the consent of the principal. Verplanck, Senator, quoted in the note, laid down this doctrine in Lyon vs. Jerome, in the New- York Court of Errors, (26 Wend. 485.) He says, that the reason and policy of the rule apply to the delegation of authority by the State to its high public officers, and that they cannot delegate their powers, and so the court held. These principles apply to all persons holding any pub- lic employment or office. They are personal trusts con- ESCHEATS AND DERELICTS. 433 fided to them for their personal fitness. (See, also, 3 KemarHs R. 591.) It is upon the same principle that franchises granted to corporations or persons cannot be assigned unless a statute shall so expressly declare, for the reason that they are governmental trusts — public privileges granted and regu- lated by the legislature for the public convenience and advantage. Sec. 23. If letters patent are obtained by fraud from a State or the national government, a bill in equity lies by the sovereignty defrauded to set them aside and annul them, as fraud vitiates every transaction. (19 How. 324.) ESCHEATS AND DERELICTS. Sec. 24. By virtue of sovereignty, each State of our Union is deemed the original owner of all realty and immovables within its territory, and hence, in default of any legal heir capable of taking the same by the lex loci ret sitce, the property escheats to the State as ultimate sovereign proprietor. This doctrine seems to be true in all the territories of the United States, and escheats go to> the national government. It is a general rule of nations.. Each State becomes also owner of derelict property within its territory by virtue of sovereignty, as we have explained. The national government must have the same power in the territories, as in these it possesses the power of a State and of the general government united. In the first and fifth chapters the distinction between the general and State governments, in this respect, has been treated of. Nations generally possess these powers as part of their sovereignty, and own all property to which no person can make title under the law of the place. 28 434 ESCHEATS AND DERELICTS. Sec. 25. Human life is property, and the relatives of any individual, as well as the nation to which the person belongs, have a right in his or her life. By the Roman and civil law, and by the Saxon law, those who wrong- fully or negligently destroyed a human being were held liable before the municipal tribunals to pay damages to the surviving relatives of the deceased. In England, after the Norman conquest, this law was not enforced by the king's courts, and fell into disuse. The old law re- mained in Scotland and many countries, and England has, by statute, restored the old law, and she has been fol- lowed by many States of our Union, and all will, no doubt, soon adopt this old and just legal rule. France, Great Britain, the United States and other civilized nations have, of late, asserted the above doc- trines, and acknowledged and enforced them. Our re- public applied them to the Panama massacre, and to the killing of an American sailor on board the Water Witch by a shot from a Paraguay fort, and to the case of an American killed by a French policeman. Satisfaction was made by France and Paraguay to the families of the deceased. Sec. 26. It is a benign and just principle. All the rights of all the citizens of a State or nation belong to it in reference to all other governments. And there is no dis- tinction between native and naturalized citizens. As to the latter, after a legal naturalization in a foreign country, all their duties and obligations to their native countries cease, and can only be revived by a regular naturalization in their native countries. Aliens in a foreign country, within its territory and curtilage, are entitled to its protection, and they are so while on board its ships on the high seas. In these cases aliens are, for the time being, subject to the laws of the foreign nation and entitled to its protection; for the ESCHEATS AND DERELICTS. 435 sovereignty of a country covers its territory -with its cur- tilage, and its ships on the high seas, and no other coun- try or its armed ships have any right of entry on or juris- diction in the ships or territory of a foreign nation. If a foreigner be forcibly abducted, as a Cuban was from New-Orleans by the Spanish consul, and sent to Cuba, it is the duty of the injured State to compel his restoration and satisfaction, as President Taylor did in the Cuban case. Sec. 27. A State has a right to file a bill in chancery to maintain its right to the free navigation of a nation- ally navigable river, and prevent its illegal obstruction. (Wheeling Bridge case, ch. 5.) CHAPTER VII. EIGHTS OF PERSONS. Sec. 1. A nation's guardianship and protection of its citizens and their property covers and shields them from wrong on the high seas and in all foreign countries. Hence, the rights of the citizens of a nation out of their own country form a part of the law of nations. ( Vattel, B. 2, c. 8, §§ 107— 109 ; c. 7, § 8. 2 Cranch, 64. Hence that law holds, for the purpose of ascertaining the rights of the citizens of one country in controversies with those of another, that they are respectively parties to the public acts of their respective nations or States. (17 Johns. B. 522.) RELIGION. Sec. 2. The first elementary, inherent and inalienable right of all mankind is to worship God freely at home and abroad, in foreign States, on the sublime ocean and on the broad de- serts of the earth. Such peaceful right of worship, without disturbing others, is the right of every man, and cannot be interfered with by any government without violating the precepts of the gospel and the liberties of men. The Holy Alliance, formed by the Emperors of Austria, Russia and the King of Prussia, and afterwards assented to by the King of France, the Pope and most European sove- reigns, declared the gospel to be the true rule of inter- national and municipal law of their empires and of all nations. KELIGION. 437 This doctrine is consecrated as a great principle of pub- lic law by our Constitution of the United States, in these words : " Congress shall make no law respecting an estab- lishment of religion, or prohibiting the free exercise thereof." (Const. U. S. art. 1.) All aliens in foreign lands are entitled to freedom of religious worship, and the incidental one of receiving, circulating and using the Bible, in any language, and any other religious books, as well as that of having churches, burial places, and enjoying freely their own modes of sepulture, unimpeded by the local government. All civilized Christian nations of Europe and America admit that the Bible is God's revelation and law given to man, and that it is alike obligatory upon nations, princes and private persons. Jesus Christ commanded his disci- ples and apostles to preach and teach his gospel to every creature, and its universal prevalence among all nations, and its eradication of all pagan and anti-christian systems is clearly predicted. For about two centuries the great and good men of Europe and America have concurred in these principles, though European practice generally does not correspond with them. The Protector, Cromwell, his secretary, Mil- ton, and De Witt, the Grand Pensioner of Holland, two great statesmen and patriots, strongly supported religious liberty. De Witt, in his Political Maxims, defends the rights of aliens in Holland to entire religious freedom. These great executive officers of England and Holland confer honor on their age by their genius, their integrity, their humanity and their valor by their defence of liberty of worship. The clouds and mists of calumny, which have obscured the characters of these distinguished men, are passing away, and they will forever be held noble statesmen, pure patriots and benefactors of their race. Henry IV. sought to protect Protestants from per- 438 JUDICIAL PROTECTION OF FOREIGNERS. secution, but Napoleon first established the principle of freedom of religion in France, and thus set aside the de- testable precedents of Louis XIV. and of Charles IX. To a deputation of Protestants, he declared his "firm determination and will to maintain religious liberty in its fullest extent." It is just to Napoleon to say, that he was always a friend of religious freedom. This principle of public law, having the sanction of God, of all noble statesmen and of our republic, every sove- reign is bound to support freedom of worship. Every nation has the right of enforcing, by the ultima ratio, if all gentle means fail, these important pacific, natural, inherent rights of their citizens in foreign countries. JUDICIAL PROTECTION OF FOREIGNERS. Sec. 3. In all foreign countries foreigners are entitled to complete protection of person and property ; and the tribunals ought to administer justice to citizens and for- eigners with an even hand, and without discrimination. The laws of a country ought to prescribe a common rule of right for the protection of all foreigners and citizens. (Vattel, B. 2, c. 8, §§ 100, 107, 108, 111. 2 Wood. & Minofs B. 15.) Judge Woodbury, in the last cited case, lays down this doctrine with much ability, and cites con- clusive authorities. It is plain that every nation has a right to demand from other nations a humane administration of justice, agree- able to national equity. In Taylor vs. Carpenter, (2 Wood. & Minofs R. 1, 9, 10,) it was held by the Circuit Court of the United States for Massachusetts, that foreigners, residing out of our republic, might sue in that court for imitating the trade-marks of plaintiffs, and the court held that an alien friend could bring personal actions for wrongs done them for injuries that would, as between citizens, NATIONAL COMMERCE AND INTERCOURSE. 439 give ground of action. Judge Woodbury well said, that a person from abroad suing in this country, is entitled to enjoy no greater nor less rights than citizens. The Spanish government, in Cuba, violated the rights of Mr. Thrasher, of New-Orleans, an American, tempora- rily living as a domiciled alien in Cuba, and of those American citizens who entered the Queen of the Antilles by the invitation of the Cubans, and led by a Cuban gene- ral, to liberate the island from her oppressors, in a revolu- tionary war of independence. In these cases civil and military tribunals condemned without fair trial. NATIONAL COMMERCE AND INTERCOURSE. Sec. 4. A nation may regulate the admission of persons and property into its territory, and impose such duties on importations from foreign countries as its legislative powers shall prescribe, subject to a right of free passage across an isthmus. But at this day no nation can refuse commerce and intercourse with other nations. "When, however, foreigners enter a country, an equal, just and complete protection of persons and property should be extended to them. In importations of merchan- dise, a distinction and discrimination has been practised by nations in favor of their own citizens. But our repub- lic has long contended for equality, and the disuse of this impolitic and anti-commercial practice ; and Great Britain and the United States have established, in some degree, the rule of reciprocity and free trade, and other maritime nations are adopting it. The coasting trade may be reserved to a country or its citizens, while foreign trade and that of colonies should be on the basis of commercial freedom ; and free intercourse of mankind begins to be understood to be the common interest and common duty of nations. 440 NATIONAL COMMERCE AND INTERCOURSE. Each nation designates its ports of entry, and they be- come the sole marts of foreign commerce. Every nation is entitled to all rights of free commerce stipulated in treaties with foreign governments, and to national comity. Treaties of commerce stipulate generally for trade and intercourse between their respective citizens or subjects, and other incidental matters. What is the effect of such general stipulation? It is a settled rule in the inter- pretation of treaties, that it is the same as other contracts. In order to understand the true meaning of a treaty, the parties to it are to be considered as well as the subject- matter of it. If the ruling and governing race of the contracting nations are of the Caucasian family, Indians or colored persons would not seem to be necessarily in- cluded in the term "citizen" or "subject," if not so ex- pressly declared by the treaty. If one party was of the Indian or African family, a contrary construction would prevail, as such would be the obvious intent of the con- tract. In treaties of commerce between Caucasian nations, the parties contract by such general clause, that there shall be a general freedom of ingress and egress by land and water, of trade and intercourse to and from the ports of each nation in all articles not prohibited, subject to legal duties, unless otherwise stipulated. Though nothing is said of exceptions, by custom, it seems to be established, that any nation may, as a necessary police regulation, re- fuse to allow foreign criminals, paupers, or persons having infectious diseases, or colored persons from abroad, from entering their ports. (14 How. 13.) On a question arising in South Carolina, it has been so adjudicated by the State court. Under such a treaty of commerce, the plain meaning entitles all persons of the contracting nations, within the NATIONAL COMMERCE AND INTERCOURSE. 441 terms "citizens" or "subjects," to such freedom of trade and intercourse, and nothing written, published, said or done by any such citizen or subject in his own country, and in accordance with its laws, can be made a ground of exclusion from the country of the other party to the treaty, or of police surveillance therein. Nor has any such con- tracting nation a right to impede or prevent any lawful intercourse of the citizens of the other party with the people of the former country, or to refuse to admit into port and trade a vessel of the other party, on account of any offence committed abroad against the former by any individual on board, for that would violate the spirit of such treaty. Much less can such a nation refuse its ports to a foreign vessel entitled to free trade, on account of a suspicion of unfriendliness of any individual on board. As nations possess no extra-territorial jurisdiction, they have no right to seek to enforce a censorship of a foreign press, or to regulate freedom of speech or of lawful action abroad, or to notice them officially by its police or judi- cial action ; and any refusal to admit a vessel to land and trade, founded on such foreign transaction, would be a violation of a treaty of commerce. (Secretary Webster to Mr. Hulseman, 5 Stryher's A. M. Reg. 527, 536.) In absence of a treaty of commerce, national comity substantially enforces the same international duties on the ground of the consent of each nation, now grown into a common law of Christian nations. (6 Webster's W. 610, 611.) Such treaty of commerce substantially forbids any ex- pensive or vexatious preliminaries to landing or enjoying domicil there for a lawful purpose, by the citizens or sub- jects of either contracting nation. The imposition of oaths upon such friendly aliens, inconsistently with their allegiance to their own country, the violation of their cor- respondence with their country, by breaking seals, deten- tion or otherwise, the stoppage of newspapers addressed 442 NATIONAL HOSPITALITY AND ASYLUM. to them from home, and all like despotic proceedings. Such acts are unfriendly, wrongful, fatally injurious to com- mercial prosperity, and are violations of the comity of nations as well as of the spirit of commercial treaties. {lb.) Sec. 5. No nation has a moral right of seclusion. Com- merce and intercourse have been made by the Creator necessary to the prosperity of nations. Hence, by the law of nature and of nations, all nations must observe this duty, and contribute their part for the advancement of the common happiness of mankind. China long violated this duty ; and though her exclusion of opium from India was lawful as a municipal law, which no foreign country had a right to interfere with, her wrongful seclusion urged Great Britain, as well as her interest in the opium trade, to force open the ports of the Celestial Empire. This led to the successful war of France and Great Bri- tain in China. Japan was culpable in this respect ; but her intelligent people have wisely abandoned, their seclu- sion, and will soon engage in the world's commerce. In 1854 a letter of our American President to the Em- peror of Japan, borne by Commodore Perry, accompanied by a small fleet to give respect to his negotiations, un- sealed that long-closed, but rich and powerful nation, and a treaty was made between Japan and the United States. Suitable presents to the Emperor and Empress, and espe- cially Morse's telegraph, and a rail-road track with loco- motive and cars, put in operation by American operators, happily paved the way for the treaty of commerce. This is a noble, pacific triumph of our own country, and honor- able alike to the Japanese government and to our own. NATIONAL HOSPITALITY AND ASYLUM. Sec. 6. All nations are bound by the golden rule and the law of nature to observe hospitality and humanity NATIONAL HOSPITALITY AND ASYLUM^ 443 towards foreigners admitted to their country, or cast upon their shores, or forced into their territory. In case of pestilence or famine of one nation, others, according to their ability, are bound to succor the suffering people. This has been done by the American people to sufferers of Carracas, of Ireland and Greece. American contributions in 1852 to the sufferers by fire at Montreal were in a proper spirit of beneficence. Our treaties often stipulate aid to shipwrecked Ameri- can and other seamen, and reciprocal aid to foreigners. It is a natural duty without such stipulation. If a foreign army, fighting for the liberties of their country or its civil government, are forced by victorious oppressors into an adjacent country, though armed men, may be disarmed, they ought to be permitted, as indivi- duals, to disperse and to depart in peace. And no de- mand for their delivery to their enemies should be lis- tened to. As all men love freedom, so all are bound not to furnish facilities for the extension of tyranny and ser- vitude. It is a settled principle in our Union to allow no pursuit into our territory of defeated armed men, of political offenders against foreign laws, and to permit such persons to enjoy the protection of our republic. It is a well-settled principle of the law of nations that no nation is bound to enforce the penal laws, legal dis- abilities or military code of foreign nations, and that every sovereign State may grant or refuse an asylum to foreign fugitive criminals or persons charged with of- fences, whether they are malum in se or malum prohibi- tum only. This is the constant practice of Great Britain, France, the United States and other nations. (Secretary Marcy's Letter in the Austrian case.) Kings, princes and republican rulers of France have often found asylum in England, though it was refused to Napoleon Bonaparte under circumstances unfavorable to England's honor. In 444 NATIONAL ASYLUM AND HOSPITALITY. the United States asylum is allowed to all political offend- ers of foreign nations, whether royalists or republicans ; and Great Britain, according to the letter of the Earl of Granville of January 13th, 1852, and letters and declara- tions of her ministry in 1858, maintains the same doctrine. In our treaties, provision is made for surrendering foreign fugitive criminals guilty of crimes not political or military. The right of asylum in this country was enforced in the case of the Spaniard Rey, abducted and transported to Cuba by the agency of the Spanish consul. He was sent back to New-Orleans. Exiles owe. duties to the countries where they enjoy asylum. They ought to abstain from interference with the governments whose hospitality they enjoy, as well as from offensive acts towards foreign nations calculated to involve the nation protecting them in difficulty. If foreign exiles fail to discharge these duties, they may properly be expelled from the countries whose hospitality they have violated. Sec. 7. Nations generally, belonging to the Christian family, allow foreigners to domiciliate within their -terri- tories, and to pursue any peaceful occupation there. It rests upon the principle, do as you would be done unto, and foreigners ought to be freely allowed to reside and carry on business abroad so long as they continued to do so without disturbing the peace of the country, paying the ordinary property taxes imposed on citizens ; as all property is protected, it ought alike contribute to the support of government. But foreigners are not bound to pay forced loans. It would be wise in all commercial countries to allow foreigners engaged in commerce, manufactures and the mechanic arts, to hold real estate abroad for such pur- poses. A nation cannot refuse citizens of foreign States per- RIGHTS OF RESIDENT FOREIGNERS, &o. 445 mission to enter its territory and trade, as freely as its own citizens, without justly incurring a charge of hos- tility. Mexico, before our war with her, violated this duty by forbidding foreigners, for the purpose of excluding citizens of the United States, from engaging in retail trade. {Pres. Mess. 1843, No. 2, p. 31.) She also de- creed the expulsion of citizens of the United States from certain parts of her territory within a short period. These were hostile acts ; and with numerous seizures of Ameri- can property unpaid for at the time of the war, formed part of our claims, admitted by Mexico, and settled by the treaty of peace of 1848. Foreigners are bound generally to obey the laws of the country where they may be, but if these are despotic, or are used oppressively by its courts or police to the injury of others, it is a wrong to their respective nations. RIGHTS OF EESIDENT FOREIGNERS TO HOLD LANDS. Sec. 8. In this enlightened day, when immigration is pouring hundreds of thousands of immigrants into the United States, and as our government conveys its public domain to foreigners and citizens alike, it is desirable that the reciprocal right of taking, holding and transmitting real or immovable property, as well as personal or mova- ble, should be secured by treaties among all nations. Our republic, by treaty with France, in 1778, adopted this principle. (2 Wheat. 270, 271, n. c, '1 Sand/. Oh. B. 657.) The Code Napoleon provides, in the true spirit of an enlightened age, that a foreigner shall enjoy in France the same civil rights as are or shall be accorded to French- men by the treaties of that nation to which such foreigner shall belong. {Code Nap. B. 1, § 11. Wheat. Int. L. P. 2, c. 2, §§ 5, 6.) 446 TAXES ON FOREIGNERS, 2, §§ 11—13. 6 Wheat. R. 156.) See, also, 9 U. S. St. L. 276, 280, 302, for the act of Congress to carry into effect our treaties with China and the Ottoman Porte, EXTRA-TERRITORIAL JURISDICTIONS, &c. 503 giving certain legal jurisdiction to American consuls, and exempting Americans from the local tribunals. As to regulation of extradition, see 9 lb. 302. 8 lb. 576, 582. 10 lb. 905, and Brightley's Dig. L. U. S. 269. These will show what legal action may be taken by American ministers and consuls in such cases. EXTRA-TERRITORIAL JURISDICTIONS IN CHINA AND THE OTTO- MAN EMPIRE. Sec. 9. Congress, on the 11th of August, 1848, (9 U. 8. St. L. 276,) passed an act to vest our commissioner and consuls in China, and our minister and consuls in the Otto- man empire, with judicial power, to the extent authorized by our treaties with those powers. • The act extends the laws of the United States, and jurisdiction in civil and criminal cases, over all citizens of the United States in China, and over all other persons, so far as the treaties allow or require ; and where such laws are not applicable or are deficient, the common law is extended over such American citizens and others ; and in every case, where neither the laws of the United States or the common law furnish suitable remedies, the commissioner or minister is" empowered to supply the deficiencies by decrees and regulations that shall have the force of law. By act of September 20, 1850, {lb. 468,) Macao is excluded from the operation of the first act. Sec. 10. An ambassador, minister or consul may, in journeying, find it. convenient to pass through other na- tions than those where their public duties are to be per- formed, or to send their official despatches and to receive those of their governments by the mails of friendly States. All friendly powers are bound by comity to give entire immunity and free passage to such officials and despatches, subject to the treaty or usual postages and charges. Any 504 EXTRA-TERRITORIAL JURISDICTIONS, demanded the recall of Genet. He was recalled by his government, and our republic adhered to the wise neu- trality of Washington. Sec. 11. Congresses of nations to improve the law of nations are of high utility. The Congress of Panama, projected by President Adams and Henry Clay, Secretary of State, and- the benign principles of public law they aimed to establish, entitle these eminent statesmen and patriots to eternal honor. {Am. Ann. Reg. P. 2, for 1827, pp. 29, 36.) The Congress of Paris, of 1856, deserves tbe world's applause for finally decreeing the freedom of the seas and of great navigable rivers, as well as religious liberty to Turkey. By that act all the great powers of Europe stand pledged to freedom in religion. Sec. 12. The invention by Morse of the telegraph, the improvements in the printing press, in the geography of the seas by Maury, and other forward movements in the arts and sciences in Europe and America, and the cosmo- politan character now freely given to eminent discoverers and inventors by all Christian nations, show us that the printing press, the railway and the telegraph are rapidly advancing the Christianization and civilization of the world. The noble reward conferred by several European nations, at the suggestion of Napoleon III., on Professor Morse, for the discovery and practical perfection of the telegraph, is honorable to the royal donors, to the great inventor and to our republic* Such princely acts tend to peace on earth and good will among men. Sec. 13. All pacific rights and duties, not above ex- plained, may be resolved by reference to the precepts of the Gospel, the acknowledged basis of international and municipal law. CHAPTER X. MARITIME RIGHTS OF NATIONS. Sec. 1. The nature of oceans and seas, overspreading three-fourths of our globe and connected by straits as affectionate navigable bonds of union, makes them a com- mon domain of the whole family of nations. In their vastness, in the irresistible power of their stormy waves, defying man's control, and wrecking and entombing in wild merriment the proudest navies, with their navigators and occupants, in the inability of man to erect upon the high seas a single sign of his dominion, all these attest that the Most High has made them incapable of conquest and appropriation, and for the common use forever of all mankind. The inspired Psalmist beheld Jehovah, the Lord of the seas, and in view of his terrible Majesty, ex- claimed: "Thou rulest the raging of the sea." Jesus Christ said to the waves, "Peace, be still," and they obeyed him. The high seas are the great common field of God's beneficence to the inhabitants of the world, as well as of his power. They are filled with inexhaustible quantities of food and other things for man's use. This great store- house, covering all but one-fourth of the earth, can nei- ther be conquered, nor its contents, to any appreciable extent, be appropriated by any nation to the injury of the rest of the human family. Its great extent offers its rich supply to all nations. It also opens a free common navi- gation, and free common fishery and use, by the aid of the winds, the waves and the currents, to every people, and makes the oceans, seas and connecting straits forever 518 MAEITIME EIGHTS OF NATIONS. free. They are God's gift to all, free as light and air. Freedom of the seas is impressed on them by the Creator. A great poet hath well said : " Roll on, thou deep and dark blue ocean — roll ! Ten thousand fleets sweep over thee in vain ; Man marks the earth with ruin — his control Stops with the shore; — upon the wat'ry plain The wrecks are all thy deed, nor doth remain A shadow of man's ravage save his own, When, for a moment, like a drop of rain, . He sinks into thy depths with bubbling groan, "Without a grave, unknell'd, uncoffin'd and unknown." Sec. 2. Publicists all agree that maritime nations have , a curtilage of soil and jurisdiction, extending seaward a cannon shot or marine league from their respective coasts or shores as appurtenant to their territory, and that their territorial rights reach thus far into the seas, on the ground of permanent appropriation and ability to control it. Beyond this curtilage all agree that the high seas, the common undivided domain of all mankind, are free for navigation and use by all on terms of equality. (L. N. by Yon Martens, Lond. ed. 160, 163, 164. Vattel, B. 1, c. 28, §§ 281 — 283. Wheat. Int. L. P. 2, c. 4, §§ 6—11. 7 Webster's Dipl. Papers, 85, 96, 97, 105, 106, 107, 382.) Grotius defended this principle, and has been followed by all publicists of authority. Azuni, in his Maritime Law, says, that the sea belongs to no one ; it is the property of all men ; that all have the same equal right to its use as to the air they breathe and to the sun that warms them. And he also affirms, that the use of the sea, light and air are alike common to all. Vattel says that no man has a right to take possession of the open sea, or to claim the sole use of it to the exclusion of other nations. As a consequence of this common right beyond a marine league from shore, he asserts -a common right of naviga- tion and fishery in all mankind on the high seas. Wheaton says, that no nation can. from the nature of MARITIME RIGHTS OF NATIONS. 519 the thing, obtain exclusive possession of the sea, and at pleasure exclude all others from its use ; and he concludes thus : " It follows, then, that it cannot become the exclu- sive property of any nation." He also affirms, in addition, that no nation has the moral right, if it possesses the physical power, to appropriate the sea and exclude other nations from the common use of it, as the preservation of this common right has been ordained by God as the basis of commerce, intercourse and exchange of benefits essen- tial to the moral well-being of the whole human race. Who, then, says he, shall dare to oppose his will to the accomplishment of this divine law ? He adds, that it is thus demonstrated that the sea cannot become the exclu- sive property of any nation ; that as the property in the whole cannot be thus appropriated, so neither can par- ticular portions of that property, such as the rights of navigation, fishery, &c, .be claimed by one nation to the exclusion of others. The use of the sea, for these pur- poses, remains open and common to all mankind. We have seen, says he, that by the general approved usage of nations, which forms the basis of international law, the maritime territory of every State extends : 1. To the ports, harbors, bays, mouths of rivers and adjacent parts of the sea inclosed by headlands belonging to the same State. 2. To the distance of a marine league, or as far as a cannon shot will reach from the shore, along all the coasts of the State. 3. To the straits and sounds, bounded on both sides by the territory of the same State, so narrow as to be com- manded by cannon shot from both shores, and communi- cating from one sea to another. And he says that the exclusive sovereignty and juris- diction' of a maritime State in these cases are upheld by the reason of the rule of public law, which forbids an apr propriation of the sea by any nation. 520 FREEDOM OF THE SEAS. STRAITS. Sec. 3. Straits, thotgh less than pix miles wide, con- necting seas, like those uniting the North Sea and the Baltic, the Mediterranean and the Black Sea, and all simi- lar ones, partake of the freedom of the seas and are, free to all nations. If such straits are only two marine leagues wide or less, and both sides are owned by the same nation, it may, for its own safety, exclude all foreign ressels of war from them, but they are of right free to the common use of all merchant vessels of all nations. ( Webster's Dip. P-) Sec. 9. Nations are responsible for their laws that in- THE RESPONSIBILITY OF A NATION. 557 fringe the rights of other governments on the high seas, or which violate unjustly the immunity of the person or property of foreigners within their respective territories, whether stipulated by treaty or guaranteed by national comity, which is founded on the golden rule. Sec. 10. Neutral nations, as a general rule, it seems, are bound to restrain their citizens and others within their territory, from making contracts or advances there tp aid a foreign people or State to carry on a war against a na- tion with which such neutral country is at peace. The Supreme Court of the United States, in Kennett and others vs. Chambers, on appeal from the United States District Court of Texas, intimated this opinion in their decision. (14 How. 38, 44.) Kennett and others, at Cincinnati, Ohio, made a contract with the Texan General Chambers, for the conveyance of a large tract of Texan lands for advances made and to be made, at Cincinnati, to Chambers, to enable him to raise volunteers to carry on the Texan war of independence against Mexico, with which latter power our republic was at peace and had a treaty of amity and commerce. The contract was in 1836, and the independence of Texas was not admitted until 1837 by the President of the United States. A bill was filed to compel a specific conveyance of the Texan land so contracted and paid for in the United States. The court held the contract illegal and void, and refused to enforce it. The court, in the conclusion of their opinion, say: "We have given the'se extracts from the public documents, not only to show, that in the judgment of our government Texas had not established its independence when this contract was made, but to show, also, how anxiously the constituted authorities were endeavoring to maintain untarnished the honor of the country, and to place it above the suspicion of taking any part in the conflict. 558 THE RESPONSIBILITY OF A NATION. "This being the attitude in which the government stood, and this its open and avowed policy, upon what grounds can the parties to such a contract as this come into a court of justice of the United States, and ask for its specific execution ? It was made in direct opposition to the policy of the government, to which it was the duty of every citizen to conform. And while they saw it exerting all its power to fulfil in good faith its neutral obligations, they made themselves parties to the war by furnishing means to a general of the Texan army for the avowed purpose of aiding and assisting him in his military opera- tions. "It might, indeed, fairly be inferred from the language of the contract and the statements in the appellants' bill, that the volunteers were to be raised, armed and equip- ped within the limits of the United States. The language of the contract is : " ' That the said party of the second part, (that is, the complainants,) being desirous of assisting the said General T. Jefferson Chambers, who is now engaged in raising, arming and equipping volunteers for Texas, and is in want of means therefor.' " And, as General Chambers was then in the United States, and was, as the contract states, actually engaged in raising, arming and equipping volunteers, and was in want of means to accomplish his object, the inference would seem to be almost irresistible that these prepara- tions were making at or near the place where the agree- ment was made, and that the money was advanced to enable him to raise and equip a military force in the United States. And this inference is the stronger because no place is mentioned where these preparations are to be made, and the agreement contains no engagement on his part, or proviso on theirs, which prohibited him from THE RESPONSIBILITY OF A NATION. 559 using these means and making these military preparations within the limits of the United States. " If this be the correct interpretation of the agreement, the contract is not only void, but the parties who advanced the money were liable to be punished in a criminal prose- cution for a violation of the neutrality laws of the United States. And certainly, with such strong indications of a criminal intent, and without any averment in the bill from which their innocence can be inferred, a court of chancery would never lend its aid to carry the agreement into spe- cific execution, but would leave the parties to seek their remedy at law. And this ground would of itself be suffi- cient to justify the decree of the district court dismissing the bill. "But the decision stands on broader and firmer ground, and this agreement cannot be sustained either at law or in equity. The question is, not whether the parties to this contract violated the neutrality laws of the United States or subjected themselves to a criminal prosecution, but whether such a contract made at that time within the United States, for the purposes stated in the contract and the bill of complaint, was a legal and valid contract, and such as to entitle either party to the aid of the courts of justice of the United States to enforce its execution. " The intercourse of this country with foreign nations, and its policy with regard to them, are placed by the Con- stitution of the United States in the hands of the govern- ment ; and its decisions upon these subjects are obligatory upon every citizen of the Union. He is bound to be at war with the nation against which the war-making power has declared war; and equally bound to commit no act of hostility against a nation with which the government is in amity and friendship. This principle is universally ac- knowledged by the laws of nations. It lies at the founda- tion of all government, as there could be no social order 560 THE KESFONSIBILITY OF A NATION. or peaceful relations between the citizens of different countries without it. It is, however, more emphatically true in relation to the citizens of the United States. For, as the sovereignty resides in the people, every citizen is a portion of it, and is himself personally bound by the laws which the representatives of the sovereignty may pass or the treaties into which they may enter within the scope of their delegated authority. And when that au- thority has plighted its faith to another nation that there shall be peace and friendship between the citizens of the two countries, every citizen of the United States is equally and personally pledged. The compact is made by the department of the government upon which he himself has agreed to confer the power. It is his own personal com- pact as a portion of the sovereignty in whose behalf it is made. And he can do no act or enter into any agree- ment to promote or encourage revolt or hostilities against the territories of a country with which our government is pledged by treaty to be at peace, without a breach of his duty as a citizen, and the breach of the faith pledged to the foreign nation. And if he does so he cannot claim the aid of a court of justice to enforce it. The appellants say in their contract, that they were induced to advance the money by the desire to promote the cause of freedom. But our own freedom cannot be preserved without obedi- ence to our own laws, nor social order preserved if the judicial branch of the government countenanced and sus- tained contracts made in violation of the duties which the law imposes, or in contravention of the known and estab- lished policy of the political department, acting within the limits of its constitutional power. " But it has been urged in the argument that Texas was in fact independent, and a sovereign State at the time of this agreement ; and that the citizen of a neutral nation THE EESPONSIBILITY OF A NATION. 561 may lawfully lend money to one that is engaged in war, to enable it to carry on hostilities against its enemy. "It is not necessary, in the case before us, to decide how far the judicial tribunals of the United States would en- force a contract like this, when two States acknowledged to be independent were at war, and this country neutral. It is sufficient answer to the argument to say, that the ques- tion whether- Texas had or had not at that time become an independent State, was a question for that department of government exclusively which is charged with our for- eign relations. And until the period when that depart- ment recognised it as an independent State, the judicial tribunals of the country were bound to consider the old order of things as having continued, and to regard Texas as a part of the Mexican territory. And if we undertook to inquire whether she had not in fact become an inde- pendent sovereign State, before she was recognised as such by the treaty-making power, we should take upon ourselves the exercise of political authority, for which a judicial tribunal is wholly unfit, and which the Constitu- tion has conferred exclusively upon another department. " This is not a new question. It came before the court in the case of Rose vs. Himely, 4 Gr. 272, and again in Hoyt vs. Gelston, 3 Wheat. 324. And in both of these cases the court said, that it belongs exclusively to govern- ments to recognise new States in the revolutions which may occur in the world ; and until such recognition, either by our own government or the government to which the new State belonged, courts of justice are bound to consider .the ancient state of things as remaining unaltered. It was upon this ground that the Court of Common Pleas, in England, in the case of Dewent vs. Hendricks, (9 Moore's G. B. R. 586,) decided that it was contrary to the law of nations for persons residing in England to enter into engagements to raise money by way of loan for the purpose of supporting subjects of a foreign State in arms 562 THE EESPONSIBILITY OF A NATION. against a government in friendship with England, and that no right of action attached upon any such contract. And this decision is quoted with approbation by Chancellor Kent. (1 Kent's Com. 116.) "Nor can the subsequent acknowledgment of the inde- pendence of Texas, and her admission into the Union as a sovereign State, affect the question. The agreement being illegal and absolutely void at the time it was made, it can derive no force or validity from events which after- wards happened. " But it is insisted, on the part of the appellants, that this contract was to be executed in Texas, and was valid by the laws of Texas, and that the district court for that State, in a controversy between individuals, was bound to ad- minister the laws of the State, and ought, therefore, to have enforced this agreement. " This argument is founded in part on a mistake of the fact. The contract was not only made in Cincinnati, but all the stipulations on the part of the appellants were to be performed there, and not in Texas. And the advance of money which they agreed to make for military purposes was in fact made and intended to be made in Cincinnati, by the delivery of their promissory notes, which were accepted by the appellee as payment of the money. This appears on the face of the contract. And it is this ad- vance of money for the purposes mentioned in the agree- ment, in contravention of the neutral obligations and policy of the United States, that avoids the contract. The mere agreement to accept the conveyance of land lying in Texas, for a valuable consideration paid by them, would have been free from objection. "But had the fact been otherwise, certainly no law of Texas, then or now in force, could absolve a citizen of the United States, while he continued such, from his duty to this government ; nor compel a court of the United States RESPONSIBILITY OF STATES, -) Grotius, in his work on Peace and War, maintains that the people inhabiting a ceded territory, if unconquered, ought to consent to the cession in order to give it validity, by the law of nature. Sec. 6. Treaties made under forcible coercion are valid by the law of nations, though in all codes of municipal law the rule is otherwise as to contracts of individuals. This is a rule of necessity, as all wars would be endless if a valid treaty could not be made, and terms of pacification ratified in a binding form. Though a nation, while its sovereignty continues, can- not be deemed under duress so as to vitiate its treaties made by its treaty-making power, yet if the person or persons, President, king or consul, authorized by the laws of a nation to make treaties, become prisoners of war, they cannot, while in the power of the enemy, make a treaty binding on their country. Duress of a person 574 TREATIES. negotiating and signing a treaty would render it invalid, as it would not in any sense be a national contract. Santa Anna's treaty, in behalf of Mexico, made with Texas, while he was a prisoner there, was invalid and of this class. An instance of such a treaty, signed by a captive sovereign, occurred in a war between France and Spain some three centuries ago, and another in the time of Na- poleon, his treaty with the King of Spain while in his power, and while Ferdinand and his father were in Napo- leon's control, and not free to act. All these treaties were repudiated by the nations attempted to be bound by these unduly obtained, pretended national compacts. Sec. 7. Treaties are of various kinds. Some may be called reviving, as well as treaties of peace. Such were several treaties renewing the treaty of commerce and navigation of Utrecht, of 1713. Transitory treaties, which are annulled by war, may be thus restored to full vigor. Sec. 8. A treaty of guaranty has for its object to secure, to one or both of the contracting parties, some right, or privilege, or thing stipulated. Any State, whether an original party or not, may become a guaranteeing party. Our treaties, with reference to the neutrality of the Isth- mus of Panama and to the ship canal from ocean to ocean, with New-Granada and Nicaragua, are of this sort, and other maritime nations are invited to become guarantee- ing parties, and to have equal participation with our republic in the benefits of the canal. (2 Phillimore's Int. L. 70. Wheat. Int. L. P. 3, c. 2, § 12.) Such guaranteeing treaty is binding, according to its terms, whether it prove effectual or not. (lb.) If in any case the stipulations shall conflict with a pre- vious treaty, the party is not bound to perform it, but he ought to make reasonable satisfaction for non-performance. This treaty applies only to existing rights and posses- sions at the date of it. (lb. 324.) Such a treaty may TEEATIES. 575 become inoperative if the condition of one party is changed essentially, and the other party shall elect to renounce it. (4 Hamilton's W. 365.) Sec. 9. Another class of treaties of great importance, binding two or more nations, are what are called treaties of alliance, having common warlike operations for their object. These treaties of alliance are offensive or defen- sive. The last applies to wars, in fact, defensive, and where a war of aggression is actually first began by a third State against the contracting party. It is offensive when the ally contracts to co-operate in making war on a given State, or against any nation with which the other may be at war. Some nations have made treaties to aid despotic gov- ernments to reduce their people to subjection by foreign armies and navies, when driven to revolt by cruel oppres- sions, ecclesiastical and civil. The British king, George III., by convention, hired the Hessians, and sent them against our rebellious republic in the Revolution. Russia aided Austria to subdue Hungary, and the Pope has long kept down his oppressed people by French, Austrian and Spanish arms. These acts are not in accordance with the precepts of the Gospel, and unlawful. (See Const, of Holy Alliance, Appx.) Sec. 10. An alliance may be eventual and defensive. Such a treaty was made between the United States and France in 1778. (8 U. 8. St. L. 6.) This treaty, and all our treaties with France made prior to July 7, 1798, were on that day annulled by act of Congress, on account of repeated violations of the treaties by France, and her refusal, with indignity, to negotiate in reference to satis- faction for such wrongs. (1 U. 8. St. L. 578.) Though treaties of one nation with another continue notwithstanding changes in the form of government, yet the rule is accompanied with this qualification : If the 576 TEEATIES. particular form of government discarded was the motive to the treaty, or if the change renders the alliance useless, dangerous 6r disagreeable to one of the parties, the latter may elect to suspend and finally annul the treaty, on the ground that it would not have made such a treaty with such a party as the new and changed government. (4 Hamilton's W. 365—368, 370, 371. Vattel, B. 2, c. 12, § 197, and Grotitcs, referred to by Hamilton.) General Hamilton's opinion was able and sound, and was adopted and acted on by Washington, and saved our republic from being involved in the long and destructive European wars. Our country owes a heavy debt of gratitude to "Washington and Hamilton. General Hamilton held, that as to debts and pecuniary obligations, they were to be paid to the government de facto. (4 Hamilton's W. 381.) These principles, General Hamilton, as one of Washing- ton's cabinet, applied to the relations of our republic growing out of our mutually defensive and guaranty treaty of alliance with France of 1778. He advised the Presi- dent, that the treaty on this ground might be suspended and finally renounced by our republic, owing to the vio- lent and bloody substitution of a new government in place of the beheaded king, with whom the treaty was negoti- ated, and the general aggressive and warlike movements of the provisional French government. He also held, that by the law of nations, the aggressive wars of France were not the casus foederis contemplated by this defensive treaty, and that it imposed no obligation on the United States to become parties to such wars. (J6. 382 — 391.) It was upon these principles of public law, accompanied with the fact that Louis XVI. was our benefactor, and that the contest for rule was a domestic one, as between his friends and opponents, that the United States, by Pre- sident Washington, declared their neutrality during the TEEATIES. . 577 wars growing out of the French Revolution. Aggressions upon American rights by the revolutionary Fr.ench govern- ments finally induced Congress to annul the treaty of 1778, and all others made with France prior to July 7, 1798. (1 U. 8. St. L. 578.) The wrongs and insults of France well warranted our annulment of the treaties. (See Life and Writings of De Witt Clinton, pp. 286, 287.) No such treaty will, probably, be made by our republic for the future, as its real object was to secure the inde- pendence of the United States. Treaties may also be offensive and defensive ; but no treaty can bind a nation to assist another in a war mani- festly unjust. ( Wheat. Hist. L. N. 325.) The reason is, that it is to do an unlawful thing, and all such contracts, by every system of jurisprudence, are held void. No nation has a right, by the law of nature, Jo engage in any but just and necessary wars. When our Congress, or the treaty-making power of a nation, annuls a treaty, it ceases to form a part of the municipal law of the annulling country, and, of course, becomes wholly void. (2 Curtis' C. C. B. 459, 460.) Such an annulling act is well authorized when the other party refuses or omits to execute a treaty agreeably to its fair interpretation. The annulling of the French treaties was a just and proper act, and our American Congress will not fail to relieve our republic from any treaty that any foreign power may evade or fail to execute in good, faith. Sec. 11. Subsidy treaties are those that stipulate certain aids of men, money, arms or ships, the party furnishing- the same remaining neutral. It is said that in this case the men, money, arms and ships are the only part of the nation deemed hostile. (Wheat. Int. L. P. 3, c. 2, § 15.) This cannot be the true rule of public law. As well might it be said, if a third person hand his cane to one of twa 37 578 TREATIES. combatants to strike the other with, that the cane is the only hostile thing, and not the man who furnished it. The common sense of the case is this : every nation is party to a war that furnishes, pursuant to treaty or other- wise, military subsidies to either party to carry it on. . Sec. 12. Treaties of commerce usually stipulate for free intercourse between the contracting nations, ingress, egress and domicil, protection of person and property. Such treaties confer absolute rights of intercourse, trade, resi- dence and protection, according to the tenor of such trea- ties liberally construed; and neither party has a right, upon the ground of caprice or suspicion merely, to deprive any citizen or subject of the other of such privileges ; nor can any lawful act, declaration or publication, done or made in a foreign country, and lawful there, be made a ground of exclusion of the trade, or of any citizen of such country a party to a treaty of commerce. National comity confers substantially the same rights and imposes the same duties upon nations. Nor has a nation a right to do any act to a foreigner of a friendly nation in violation of freedom of commerce, such as violating his correspondence, stopping his foreign papers, subjecting him to expensive or vexatious regula- tions, &c. Sec. 13. The same rules of interpretation should be ap- plied to treaties as to other contracts. (14 Pet. 11. 7 lb. 86—88. Wheat. Int. L. P. 3, c. 2, § 17. 8 Wheat. 490.) Treaties take effect from their date, unless a different time is fixed by them, though the exchange of ratifica- tions is long subsequent. (1 Kent's Com. 5th ed. 169, 170. 5 Mow. 177, 188. d lb. 289.) When duly ratified, they have a retro-active effect, and defeat -all grants of public domain by a ceding State, of part of a territory ceded by treaty between its date and ratification. (9 Mow. 289. 12 lb., 47.) TREATIES. 579 In the case of Davis vs. Police Jury, (9 How. R. 280 — 289,) it was held by the Supreme Court of the United States, that all treaties, when ratified s relate back, and take effect as of their date, so that grants of land, ferry fran- chises, or other rights in or appurtenant to any territory ceded by a treaty, if made after the date of the treaty, but before the delivery of possession, are illegal and void. In this case the grant of a ferry franchise to a land-owner on the bank of the Mississippi, after the 1st of October, 1800, the date of the treaty of St. Ildefonso, by which Louisiana was retroceded to Prance, was held illegal and void. Sec. 14. A treaty containing stipulations in violation of an existing treaty made by one of the parties with another power, is, pro tanto, illegal, and the other contracting party may, at his election, annul the whole treaty, or demand satisfaction for the illegal part, and consider the residue binding. ( Vattel, B. 2, c. 12, § 165. 2 Pet. 235. 5 Ham- ilton's W. 111.) So, upon principle, a treaty made in violation of national rights, secured by the law of nations to a nation not a party to it, is void between the contracting parties, on the same ground that an agreement by two persons to rob a third is illegal and void. Such was the secret treaty made in 16 TO, between Charles II. of England and Louis XIV. of France, to conquer and partition Holland, to establish Catholicism in England, and make King Charles absolute. {Mod. Br. Us. Phil. ed. 388, 389.) All such treaties are void, as no government can lawfully bind itself to do a clear national wrong. Sec. 15. Some treaties are, in their nature, partition treaties. These divide territories, fisheries and other rights appurtenant, and the portion so assigned to each is henceforward the permanent territory and property of the contracting parties; and a subsequent war between the parties does not, ipso facto, divest such vested jurisdiction 580 TEEATIES. and property, with fisheries and other appurtenant rights. (2 Wheat. 261. 8/6. 494) Our treaties with Great Britain of 1818, 1842 and 1846, relating to the partition of Oregon, and to our northern boundary and the fisheries, were all original or complete partition treaties. (8 U. 8. St. L. 248, 572. U. B. Bess. L. 1848, 260.) If an alien acquires a title legally, under a treaty, its expiration does not divest him of it. (2 Wheat. 261.) Sec. 16. Treaties that are executory ought to be per- formed in good faith, according to their true intent and meaning. Some executory stipulations are permanent in their nature, and remain binding, notwithstanding subse- quent wars. Such are all provisions made in contempla- tion of war: such are the 21st and 22d articles of our treaty of peace with Mexico, of 1848, stipulating, in case of war, to exempt from the effects of war non-combatants upon land ; and providing that fields shall not be wasted, nor houses or property be destroyed in case of invasion ; and that if private property is taken for the use of an in- vading army, it shall be fairly paid for. Such is the 10th article of our treaty with Great Britain, of 1794, and the 9th article of our convention with France, of 1800, (1 TJ. 8. Bt. L. 122, 182,) stipulating for the mutual security of private debts, and funds in public and private banks, from confiscation in the event of war. (8 Wheat. 444. ) Transitory executory provisions of treaties are annulled by war as new relations arise, and a new contract is ne- cessary to regulate them. (8 Wheat. 492 — 494. 7 Pet. 51. Wheat. Int. L. P. 3, c. 2, §§ 9, 11.) In the United States, all treaties that require no legisla- tion by Congress, are executed ones, and the supreme law of the land ; but such as require legislation are executory, and require an act of Congress to enable our courts to execute them. (12 Pet. 746, 747.) Sec. 17. Any provision of an executory treaty may end TEEATIES. 581 by its own limitation, by a performance of the parties con- tracting, or by a total change of circumstances, rendering it inapplicable. (Wheat. Ink L.V. 3, c. 2, § 10.) One party to it may repeal it for violation by the other party, and refusal to perform it. (2 Curtis'' C. G. E. 457, 460.) Sec. 18. Treaties may determine by the destruction Of either nation ; by the loss of its nationality by conquest, or by the cession of its sovereignty to another nation. By the cession of the sovereignty of Texas to the United States, all her treaties with foreign nations came to an end. (Vattel, B. 3, c. 14, § 213. Wheat. Int. L. P. 1, c. 2, §§7-9; P. 3, c. 2, §10.) A family treaty, or one founded on any thing that, by a change of circumstances,.becomes inapplicable, ends. (lb.) A treaty may be changed, also, by new and repugnant stipulations between the parties. (8 Wheat 495.) Sec. 19. The termination of a treaty by war, or by its own limitation, does not divest rights to realty or person- alty already legally vested at the termination of the treaty. (8 lb. 493. 10 lb. 189.) Sec. 20. After a treaty is ratified, if a physical or moral impossibility arises to performing its stipulations, it ceases to be obligatory upon the contracting nations. If either party has received a consideration for the doing of the thing that has become impossible, it must be restored. These are rules of natural equity, and have the sanction of Grotius and other civilians, and of all municipal sys- tems of law and equity. The same rules apply if there was an error in a material fact; as it may well be pre- sumed, that if the facts had been correctly known, such a treaty would not have been made. (Wheat. Int. L. P. 3, c. 2, § 5.) Sec. 21. If either contracting party repeatedly violates a treaty, and refuses satisfaction when • demanded, the other party may elect to declare it void, or may allow the 582 TREATIES. treaty to stand, and demand satisfaction for the violations of it. This proceeds on the just and equitable principles that a party refusing to perform a contract loses the bene- fit of it. On this ground, Congress, in July 7, 1798, by an act, declared our treaties and consular convention with France abrogated, and no longer part of the law of the United States. (1 U. 8. St. L. 578. 8 lb. § 12.) The wrongful acts of France fully justified the act of Congress. Sec. 22. Treaties, to be valid, must be made by the ex- isting executive authorities of a nation, and, when so con- cluded, they bind the nation. An executive or king ac- tually displaced and de facto out of power, cannot make a treaty. Sec. 23. Internal changes in the character of a govern- ment by revolution or by a peaceful change of constitu- tion or form of government, has no effect on treaties with foreign nations, so long as the contracting nation retains its nationality. (Grotius on P. & W. B. 2, c. 9, § 3. Vattel, B. 2, c. 14, § 215, The Federalist ed. 1818, p. 617. Wheat. Int. L. P. 1, c. 2, § 7. 1 Kent's Com. 5th ed. 167.) If the change makes the alliance useless, dangerous or disagreeable to a contracting party, the latter may elect to renounce the treaty. (Ante, § 10, and 4 Hamilton's W. §365.) ■ Sec. 24. Certain national agreements are national con- tracts, quasi; such as agreements of military or naval commanders in time of war, within the sphere of their re- spective duties ; and they are deemed obligatory on the good faith of a nation, without ratification. Such agree- ments ought not, however, to assume to regulate matters of permanent arrangement, and should be strictly confined to military objects, as the national executive or treaty- making power alone has authority to bind the nation in TREATIES. 583 national matters. Of this class of military agreements are special licenses, cartels, armistices and capitulations. These do not ordinarily require ratification. ( Wheat. Int. L. P. 3, c. 2, §§ 1—5.) Sec. 25. Treaties, to be valid, must be ratified by the executive, or executive and Senate, or other department in •which the fundamental law of a State has vested it. Sec. 26. Treaties of peace are among the most impor- tant national compacts. War is declared by a nation by its king, emperor, consul, executive or legislative body or department in which the fundamental law of the particular nation has placed this high power. The power to make peace must also be exercised by the national organ to which that law confides it. These powers are differently deposited in different States and kingdoms. In the United States the power to make war is vested in Con- gress ; (Const. JJ. 8. art. 1, § 8 ;) and the power to make a treaty of peace belongs to the President and Senate. (lb. art. 2, § 2.) The Supreme Court, in Foster and Elam vs. Neilson, (2 Pet. 314,) says, that a treaty is, in its nature, a con- tract between two nations — not a legislative act. It does not generally effect, of itself, the object to be accom- plished, especially so far as its operation is infra-territo- rial ; but is carried into execution by the sovereign power of the respective parties to the instrument. , In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of Congress, whenever it operates of itself without the aid of any legislative pro- vision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not to the judicial department ; and the legislature must 584 TREATIES. execute the contract before it can become a rule for the court. (See 12 Pet. 745 — 747 ; 5 Eow. 177, as to trea- ties for extradition of foreign fugitive criminals. ) All private rights of property secured by a treaty of peace are objects of judicial cognizance and protection. (lb. 8 Wheat. 464, 489. 10 lb. 189.) Nations, by their fundamental laws, may respectively limit the authority of the treaty-making power ; but if there be no limitation, treaties of peace as well as others, may, by virtue of the nation's right of eminent domain, and of a general treaty-making power, alien any part of the public domain or property, and abandon for the pub- lic advantage all private claims and property of the citi- zens of either contracting party upon the other, or its citizens. {Wheat. Int. If. P. 4, c. 4, §§ 1, 2, 3.) In the United States, if private property and private claims are abandoned by a treaty of peace, as was done by our treaty of peace of 1848 with Mexico, the Consti- tution requires Congress to pay our citizens for the pri- vate property so abandoned ; and it has been done. Sec. 27. A treaty of peace brings the war to a close, and cancels all the claims of the parties, which were the original grounds and causes of the war. A war cannot be revived for the same causes ; but new national wrongs, though growing out of a principle that led to acts that .produced the, war, may justly be a ground for demanding satisfaction by all practicable, peaceful modes ; and if they are unavailing, they may afford just grounds of war. Such injuries, however, ought to be serious, and the rights affected important. A claim of abstract right is not, therefore, abandoned where the treaty of peace is silent as to it, but it merely discharges the claims for past acts, which led to the war. Our war of 1812 was declared against Great Britain for seizing, on the high seas, under her acts of Parliament and TEEATIES. 585 orders in Council, many American ships and seamen, thus asserting the principle of a British municipal control over American neutral ships, and property On board of them, upon the high seas, under pretence of a belligerent right to stop all trade with France and her allies, and a right to the perpetual allegiance of her subjects, and to take them from American merchant ships and ships of war. It was a war for the freedom of the seas. The treaty of peace of 1814 (8 U. 8. SL L. 218) was silent as to this great question. The peace cancelled American claims for the wrongful acts of Great Britain preceding the war, but left our republic the right to assert again, if an occasion shall occur, the freedom of the seas. The collection of debts and claims of citizens of bel- ligerent States, unconnected with the causes of the war, are suspended during the war ; but debts are not extin- guished by the peace, unless it is specially stipulated by the treaty. (Wheat Int. L. P. 4, c. 4, §§ 3, 4.) War contracts, as ransom bills, contracts by prisoners of war for food, clothing, subsistence. &c, or agreements and contracts made in the course of trade, under a license, may be asserted after peace. (H-) Sec. 28. If in the course of the .war any part of the territory of either nation has been conquered, and remains in possession of the conquerors at the close of the war, and the treaty says nothing about it, henceforth the title of the conqueror is perfect, and his title is confirmed as of the time of conquest. (4 Wheat 254.) During the war the conqueror has a temporary and possessory right only to the conquered territory, but if the treaty of peace is silent as to conquered territory, or by express provision cedes it to the conqueror, then his title is perfect. (Wheat Hist L. N. 572. Ante, ch. 6, § 1.) If the treaty of peace declares conquered territory restored to its original sovereignty, the pbssessory right 586 TEEATIES. of conquest ceases, and it returns in its original title to its former owner. Any grant made to a third party by the conqueror, during the war, of any title to such territory, would be annulled by the treaty ; as the incipient title of the conqueror was not a completed title. If the treaty cedes the territory to the conqueror, or it is left in his possession silently by the treaty, then such grant would become valid. As to movables, the title of an enemy is deemed good and complete after twenty-four hours' possession of booty on land. Property captured at sea must be regularly condemned as prize of war, to preclude the original owner from resti- tution, on payment of salvage. If the treaty is silent, all personal property is left in the condition it was in at the date of the treaty, and the possessor at that time owns it. If personalty taken during war, and without condem- nation, be transferred to a neutral, and there be no reco- very or recapture of it before peace, the title of the neu- tral becomes perfect by the peace. Sec. 29. Where territory is temporarily conquered and occupied by the enemy, he exercises a' temporary sove- reignty over it that suspends the national laws for the collection of duties, taxes, &c, during the hostile occupa- tion. A temporary allegiance to the conqueror is estab- lished, and the inhabitants are bound by such laws, and such only, as the enemy may choose to recognise and impose. From the nature of the case, say the court, no other laws could be obligatory upon them ; for where there is no protection, or allegiance, or sovereignty, there can be no claim to obedience. The effect of a treaty of peace restoring such territory revives the original juris- diction as of the date of the treaty. (4 Wheat 254, 255. Wheat. Int. L. P. 4, c. 4, §§ 4, 5, 6.) Sec. 30. Treaties of peace generally adjust questions of TKEATIES. 587 title to places conquered by express stipulations, and they may do it as to ships and property taken at sea or on land in possession of either belligerent. ' Our treaties of peace of 1783 and 1814 -with Great Britain, and our treaty of peace with Mexico, have such provisions. (8 U. 8. St. L. 80, 218. Laws IT. 8. 1848, p. 260.) All property in pos- session of either belligerent at the date of the treaty of peace and not agreed to be restored, remains the pro- perty of the conqueror. (5 Hamilton's W. 113.) Sec. 31. A treaty of peace binds from its date when ratified. It ends hostilities, as of that time, unless it stipulates otherwise. Acts of hostility done after the treaty by the army or navy of either party, or its cruisers or privateers, are not criminal unless the actors are noti- fied of the peace, but each State is bound to restore all property taken after the date or signature of the treaty. As all acts of hostility done by parties in ignorance of the treaty affords no remedy, civil or criminal, the nations to which they respectively belong must make full restitution unless the property has been destroyed or lost. ( Wheat. Int. L. P. 4, c. 4, §§ 4, 5, 6.) It is. the opinion of Wheaton, that if a capture takes place at sea, after the signature of .a treaty of peace, an action will lie against the captor for damages, even though he was ignorant of the treaty ; and that he must look to his own government for indemnity. (lb-) It seems to us that officers, and other military or naval persons, are not liable for such act, as it is national, and not private or personal. (17 Johns. 52, 53. 6 Webster's W. 268, 269.) The claim addresses itself to the political department. Sec. 3 / 2. Where the treaty provides for restoration of things, they are to be returned in their original condition, natural wear, the effects of time and war excepted, unless it is otherwise stipulated. {lb.) Sec. 33. Treaties of peace ought to provide against the 588 DISSOLUTION OF TEEATIES. recurrence of war and against its atrocities. Our treaty of peace of 1848 with Mexico, provides that, in all prac- ticable cases, controversies between the contracting par- ties shall be referred to arbitrament, and that non-com- batants on land shall be exempt from the effects of war, and that in case an invading army should seize any pro- perty for its use, it should be paid for. In our invasion of Mexico the American generals uniformly protected non-combatants and peaceful Mexicans from injury ; and private property was not taken unless fairly paid for. (4 Stryker's Am. Meg. 299.) This is a noble example, and worthy of imitation in all future wars and treaties of all countries. It is what the wise and good Franklin desired so earnestly, the discovery of a plan that would induce and oblige nations to settle their disputes without first cutting one another's throats. (Sparks' Franklin, vol. 2, p. 417.) Sec. 34. All treaties to which our republic is a party, when ratified duly, form a part of the national law and are published with our acts of Congress. Secret treaties are a royal device to conceal for a time some iniquitous compact. These treaties are condemned by common sense and the principles of the golden rule, and they ought to be abandoned. DISSOLUTION OF TREATIES. Sec. 35. Now, upon the principles of the Gospel, which the sovereigns of Europe, including the Pope, by the Holy Alliance compact, declared to the world to be the basis of the law of nations, treaties, to be valid and enduring, must have a good object, and be equitable and right in their bearing upon the people of the treaty-making powers and foreign nations. All treaties that contravene these principles rest upon force and not on the benign doctrines DISSOLUTION OF TREATIES. 589 of the Gospel. They must pass away. Hence the treaties of Vienna, of 1815, the treaties of Napoleon I. with the Spanish princes and sovereign, with Prussia, Austria and other nations, by which their people and kings became tributaries and satraps, all rested upon force and not upon right, and they have all fallen by the sword. What the sword gives the sword takes away. The same is true of a species of treaties called concordats, made between the Pope and Catholic kings in different ages, for the establishment over their people of a combined despotism, enslaving soul and body by the aid of the ac- eursed, bloody Inquisition, and other inventions of priestly tyranny. These concordats, like the compact between Judas and the Jewish Sanhedrim for the betrayal and mur- der of the Saviour, fall within the severe condemnation of the above principle, are in direct contravention of the Gospel, and in their nature illegal and void. All such compacts, by which religious freedom is destroyed or infringed, and the rights, property and education of a people are given over to a tyrant priesthood, with its dun- geons, inquisitions, tortures, fires and faggots, are inhuman, and no people are bound to obey them, and they must and will be swept away by the omnipotent power of an oppressed people enlightened by the Gospel. The inherent right of all men to freedom and to be secure in their persons and property, and to self-govern- ment and protection and the pursuit of happiness, must be regarded by governments, kings and emperors, in all their treaties and compacts, or they will vanish like dew before the morning sun. Formerly the Pope claimed and exercised the power of dissolving treaties, as well as of laying nations under ex- communication. These are manifestly contrary to the Gospel, and are now repudiated. The war of 1859, between Sardinia and France as allies 590 DISARMING TREATY, &c. and. Austria, and the rising of the Italians against the Austrian despotism,. civil and religious, founded on treaties and concordats made without their consent, prove that no people will long submit to any compacts that deprive them of the right of self-government, of freedom, security and happiness. The partition treaties of Vienna rest upon force, and the sword will destroy them. No treaty or compact among nations ought to exist nor can long endure, that violates the golden rule of the Gospel. DISARMING TREATT. INTERNATIONAL PEACE. Sec. 36. Nations are bound to promote peace, good- will and the happiness of each other as much as individuals. Empires, monarchies and republics are all alike subject to this great moral duty. Great standing armies . lead to wars, taxes, poverty, ignorance and desolation of finely cultivated countries, and cruel, grinding oppression and to national decay. The United States have a small army and navy, and our people devote themselves to the arts of peace, and maintain great armies and navies only in time of war ; and, upon a call by the President, a powerful volunteer army and navy can at once be raised. Free Christianity, free institutions and general education, the strong hearts and ready hands of freemen are relied on to defend our republic from foreign aggression and domestic insurrection. Defensive wars only are approved by the people, though they may assume an invasive form. Our policy might well be applied to Europe by a congress of sovereigns, by a general disarming treaty, which shall fix the number of the army and navy of each nation in time of peace, at say, an aggregate of five hundred thousand men, to be apportioned among the different governments. The following beneficial consequences would follow : 1. Constitutional governments Would become general, DISARMING TREATY, .) As a general rule, where neutral property is recaptured from a capture that would not justly authorize a condem- nation, no salvage is allowable on such recapture. (/&■) RECAPTURE, SALVAGE, &0. Sec. 47. The act of Congress of March 3d, 1800, pro- vides that, when any vessel other than a vessel of war or privateer, or when any goods which shall be taken as prize by any vessel acting under authority from the government of the United States, shall appear to have before belonged to any person or persons resident within or under the pro- tection of the United States, and to have been taken by an enemy of the United States, or under authority or pre- tence of authority from any prince, government or State against which the United States have authorized, or shall authorize, defence or reprisals, such vessel or goods not having been condemned as prize by competent authority 630 BECAPTUKE, SALVAGE, &c. before the recapture thereof, the same shall be restored to the former owner or owners thereof, he or they paying for and in lieu of salvage, if retaken by a public vessel of the United States, one-eighth, and if retaken by a priva- teer vessel of the United States, one-sixth part of the true value of the vessel or goods so to be restored, allow- ing and excepting all imposts and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been sent forth and -armed as a vessel of war, before such capture, or afterwards, and before the retaking thereof as aforesaid, the former owner or owners, on the restoration thereof, shall be adjudged to pay for and in lieu of salvage, one moiety of the true value of such vessel of war or privateer. (2 U. B. St. L. 16, 17, § 1.) The third section of the same act provides for restora- tion to alien friends of the United States, on the principle of reciprocity, in cases where the property had not been condemned, and where the foreign State restores property of the United States under like circumstances. (/&. 17. Wheat. Int. L. P. 4, c. 2, §§ 11—13.) Sec. 48. It is no objection to salvage that a recapture is by a non-commissioned vessel. To entitle to military salvage, there must have been an actual or constructive capture. Sec. 49. If a vessel is taken by a belligerent cruiser, and afterwards recaptured, and is again taken by another armed ship of the nation of the first captors, the first cap- tors are not entitled to the prize or payment of salvage, for the recapture destroyed their right, and the last cap- tors are entitled to the prize. (Wheat. Hist. L. N. 426.) But if the first captors are dispossessed in fact by the acts of, or by intimidation of the last captors, the prize will be restored to the first captors of the same nation. (The Mary, 2 Wheat. 123—130.) Sec. 50. As to real property temporarily in possession RECAPTURE, SALVAGE, 292, 306, 355, 864, 377. ASYLUM AND HOSPITALITY. Right of, 434, 435, 442—446. ASSIGNMENTS, WILLS, STOCKS, FOREIGN LAWS, Aa Of other States, and foreign, when valid, and their effect, 100, 102 — 113, 122, 126, 127, 132. INDEX. 711 ASSIGNMENTS, WILLS, STOCKS, FOREIGN LAWS, &o. Marriage contracts, when yalid, and their effect, 104, 105, 173— 177, 179, 186, 186, 189, 263, 270. Formalities of contracts made abroad, 107, 110. Illegal contracts, 103, 107—109, 119, 306, 320—323, 364, 375, 424, 557— 560, 697. Foreign divorces, -when legal and when invalid, 177 — 179, 181, 185, 186, 196, 201, 202, 270. Bills of exohange governed by the general law-merchant, and each con- tract depends on that law, 118. Exchange, usury, &o., 108, 119. Guaranties, 109, 116, 119. Foreign contracts and of other States, to sell lands abroad or in another State, how enforced in foreign courts, 107, 132 — 184, 147, 202 — 206. Interpretation of such contracts, 103, 104. Defences to same, 120 — 122. State laws cannot annul existing contracts, 197, 263 — 269. Contracts relative to foreign stocks, 123, 129. " " " liens, 123, 127, 130. " " " transfers, 126, 127, 130. wills, 136. Interpretation of same, 131. Foreign interest on advances, 116. Foreign movables, right in, and how transferred, and how passed, by will or succession, and how charged with liens, 122 — 130. Wills of same, and realty, and how interpreted, 130 — 134. Foreign international proofs and probate of wills, 140 — 142. Rules of evidence, 142, 143. Foreign laws, 142, 310—312. Foreign seals, 143. Inter-state and United States authentication of judgments and records, 144. AUTHENTICATION OF AMERICAN RECORDS AND FOREIGN LAW. How, 140—142, 143, 144, 310, 312. BANKRUPTCY, INSOLVENT DISCHARGES. Law of national bankrupt power, 195 — 202. A foreign bankrupt law is not effectual to pass property in our Union by comity, 195, 196, 200. A bankrupt's discharge is a judicial proceeding, and the court must have jurisdiction to grant it, 195—197, 198, 201, 202. Such a law can only be passed by Congress, but the States, if there is no such law, may pass insolvent laws as to its own citizens, 196 — 199, 200. These insolvent laws do not affect contracts in force at the passing of the law, 197, 263. A bankrupt law suspends these State laws, 197. A bankrupt act must be uniform, 198. A creditor, by taking a dividend, makes a discharge as to him good, though it was invalid before, 198. The effect of a bankrupt discharge in England, 198—200. In our Union no extra-territorial effect is allowed to State insolvent dis- charges, 198—201. 712 INDEX. BANKRUPTCY, &a Jurisdiction of these eases cannot be obtained by fraud, nor can the discharge affect a party not legally served with notice, or not in fact ■within the act, 180—191, 357, 361. BANK, NATIONAL. Congress has power to grant one, 297, 379. BOUNDARIES. State, Indian and national, how settled, and effect, 380 — 382, 400. CESSION OR CONQUEST. Of foreign territory, does not affect private rights, and the municipal law remains until legally changed, 52, 53—55, 390, 394, 407, 409. Cessions by States, their effect, 295 — 297, 369. CITIZENS OF A STATE OR NATION. They are parties to all government acts, and bound by them, 333, 484, 667— 560, 561. COMITY. See American Law, ante. COMMON CARRIERS AND JUDICIAL RULES OF NAVIGATION, 342, 343— 346, 375. COMPACTS, STATE AND NATIONAL. Law of, 382, 572. COMMERCIAL LAW AND RIGHT OF COMMERCE. Law of, 225, 302, 439—442. CONCURRENT JURISDICTION. Law of, explained, 15, 18, 148, 209—211, 279, 281—295, 400—405, 410. CONSULS, MINISTERS AND SOVEREIGNS. Powers, duty, 152, 502, 504. Their immunities, 499 — 506. CONFEDERATION OF UNITED STATES. A perpetual one, 2. CONGRESS OF PANAMA, 516, 609. CONGRESS OF PARIS OF 1850, 656—661, 683—685. CONSTITUTION OF OUR UNION. Treaties and valid acts of Congress — these are the supreme law, and every State or other law in conflict is void, 279, 289, 292, 301, 316, 334, 353— 356. Interpretation of Constitutions, 371. CONTRACTS, 711. COPYRIGHT, 271. CORPORATIONS, 173—175, 214, 267, 316—323, 423—433, 483, 707, 708. COURTS, STATE AND NATIONAL. Suits in, and their jurisdiction, National Courts above, and, 276, 306, 363. CRIMINALS AND SLAVES. Their extradition, law of, 153 — 173. A criminal or an accused man cannot be taken by force from this country, 212, 361. Penal and criminal laws are local, 207, 208, 317, 443, 444. CROMWELL, DE WITT, Grand Pensioner of Holland, and Napoleon I., true friends of religious freedom, 437, 438. INDEX. 713 CUBA AND CUBANS. Treatment and probable independence, 682, 68T — 689. DEBT. Imprisonment for, substantially abolished in our Union, 301. DECISIONS OF STATE COURTS. "What, evidence of local law, 289, 355, 356. DEDICATION OF REALTY TO PUBLIC. How made, and its effect, 417—426. DESERTERS. From ships, how arrested, 164 — 166. DIVESTMENT OF PUBLIC RIGHTS BY DEDICATION. How effected, and what, 418. DIVORCES. When valid, and when not, 201, 277, 279. (See Assignments, &c, 111.) DOMAIN, STATE AND NATIONAL. How transferred, and law of, 390 — 414. DOMAIN, Roman, 421. DOMICIL. Law of, 122— 127, 179, 449, 457, 489. DROIT D'AUBAINE. What, 134. EMINENT DOMAIN. What, and how exercised, 63 — 93. State right, how limited, 66, 71—79, 80. How exercised, and by whom, 79. Property of citizens and aliens subject to it as well as franchises, 64, 70 — 75, 76, 83, 692. The property taken must be paid for, 63, 65, 692. Limitation of taxation, State and national, 63, 71, 72, 75, 77, 79. States may, by law, exempt property from taxation, 75, 76. Congress may exercise eminent domain, and take property for national ob- jects, 63—75. Places ceded by States to the Union are exempt from State eminent do- main, 77 — 92, 160. The legislature can authorize surveys to determine what shall be taken, 78—83. A State may regulate all tolls, ferriages, &o., 234 — 254. Reversion of property taken, when, 133, 134. Retrospective laws, their effect, 83. Property taken or destroyed by necessity, must be paid for, 78, 510, 564, 565. ESCHEATS AND DERELICTS, 29, 70, 101, 134, 433, 695. EXEMPTIONS. Of postmasters, mail carriers, soldiers, law of, 297 — 299. Legislative exemption, 299. Legislative protection, 300. EXPANSIONS OF TERRITORY PROBABLE. Of our Republic, France and Russia, 611, 687—689. EXTRADITION. • Law, of 153—170. 714 INDEX. EXTRA-TERRITORIAL JURISDICTION. How obtained by personal service of process, 107, 147, 202 — 206. How a foreign court acts on realty, in cases of contract, fraud or trust, 152, 170, 503. Consular courts in China and Turkey, 170 — 173. By comi,ty, foreign executives, ministers, armies and armed ships, when and how exempt from local law, 95—99, 152, 170, 498, 506. But such Bhips cannot harbor criminals, 20, 97. State cessions pass exclusive jurisdiction, except so far as reserved by the act of cession or act of Congress, 296 — 297. By treaty, foreign mails may be exempt from the local law, 170 — 173. Extra-territorial civil and criminal jurisdiction, what, 4, 18, 100, 147, 148, 215, 599, 617. EXTRA TERRITORIAL MAILS. By treaty and other rights, 170 — 173. FISHERIES, NATIONAL AND STATE. What, law of, 11, 17, 18, 45—49, 402, 403 and Appendix. FOREIGN CORPORATIONS, 173—176, 214, 483. FOREIGN OFFENDERS, PAUPERS, Ac. How may be treated, 20, 211. FOREIGN CONQUESTS. May be governed by the President during the war, 208, 599. FOREIGN LAWS. How proved as facts, 142, 310, 313. FOREIGN REALTY. Actions to recover local, 133, 134. FOREIGN DISABILITIES. Penal and criminal laws local, 208, 317, 599 — 607. FOREIGN PERSONAL ACTIONS. Where suable, 111. FOREIGN REALTY ACTIONS; Trying title to it, local, 111, 112, 132, 134, 147. FOREIGN JUDGMENTS. How proved, 146. * FOREIGN OFFENCES. Law of, 112, 113. FOREIGN TORTS AND TRESPASSES, 206. FOREIGN DEFENCES AND FOREIGN LAWS, 120, 122, 142. FOREIGN DEFENCES IN TORTS AND CONTRACTS, 111, 120—122, 206. FOREIGN RELATIONS. Controlled exclusively by the President and by the Senate, 155, 158, 205, 225, 226, 287, 293, 347, 409, 421 — 423. FOREIGN LIS PENDENS. Its effect, what, 180, 215. FRANCHISES. American, law of, 423—433, 692, 694, 695. British, what, 429. Duties implied by law, 424. FRAUD. Vitiates judgments and every transaction, 180 — 184, 186, 216, 361, 480. INDEX. 715 FRAUD. A party cannot be brought by fraud or force into a jurisdiction, and be there prosecuted, 212, 361, 435. For it directors of corporations and others are liable, 320 — 323, 627. FREEDOM, SLAVERY, STATUS OF PEOPLE OF A STATE. A natural birthright, but the white race formed the American Republic and rule it, and the Indians and negroes are dependent races, having such political status as the State laws give them, but they are not citizens of the Republic, 457—494, 507, 508. GOSPEL. Its precepts, basis of international and municipal law, 9 — 11, 447, 488, 507, 508, and Appendix. HIGH SEAS. "What, 213. HABEAS CORPUS. Law of, 81, 32, 283—288, 293, 294, 460, 693. HUMAN LIFE. By law of nations a family property, 434. ILLEGAL CONTRACTS, 375, 696, 711. IMPORTS. What, in United States, and importers' right to sell what, 222, 227—229. He is entitled to sell, or to free transit, without a state license, for un- broken packages, 11, 13—25, 205, 227, 229, 256, 390. INDIAN TRIBES. Title, what,. 11, 13, 25, 256, 390. INCIDENTAL POWERS OF CONGRESS, 297. INTERNAL IMPROVEMENTS. National power of Congress over, what, 225, 254, 297, 379. INTERVENTION. None by European monarchies allowed in America, 5, 6, 24 — 27, 679, 681. INTER-OCEANIC PASSES. Partake of freedom of the seas, 641 — 655. JUDICIAL ACTION, STATE AND NATIONAL. Harmony of, 281, 292, 293—285. JURISDICTION OF STATES AND NATIONS. Civil and criminal law of, 1 — 37. I A FAYETTE. Louis Philippe's pledge broken, 7, 8. LAKES. Great, riparian rights in, 404, 405, 704. LEX FORI. When it governs, 83, 86, 113, 121. LEX SITUS. When, 100, 123—125, 126—130. As to realty, 100, 111, 112, 132—134, 137—140, 147. LAW OF RACES, 457—494. LAW OF HUMANITY. What, 8, 9, 682. LAW OF NATIONS. How improved and enforced, and duty to obey, 672, 683. Duty of civilized nations to uncivilized, 662 — 668. 716 INDEX. LIMITATIONS, STATUTE OF, RECORDING ACTS AND RETROSPECTIVE LAWS. Law of, 83, 84, 85, 103, 106, 107, 307—310. LIQUOR. Imports and sales, 69, 70, 225, 228, 229. MANDAMUS. "What, 350. MARITIME COMMON CARRIERS. Their liability, 226. MARITIME CURTILAGE, 18—22, 94, 95. MARITIME LAW. Law of, 517—545, 656—661, 684, 685. MARRIAGE AND DIVORCE. Law of, 70, 102, 105, 175, 177, 179, 185, 201, 202. MISTAKE OF FOREIGN LAW. How and where remedied, 181, 182, 186. McLEOD CASE. Law of, 98. MUNICIPAL CORPORATIONS. Laws of, 269—271, 278, 364. Their legislative powers, 364. May, if allowed by law, subscribe for stocks, 388. Other corporations, 173—175, 214, 267, 316—323, 483., Directors of, liable for fraud, &c, 320—323, 376—379, 424. How stockholders may prevent misapplication of funds, 379. NAPOLEONS AND BOURBONS, 7, 8, 436—438, 523, 542, 591—593. NATIONS AND OUR UNION. Sovereignty, what, 1, 37, 94. National and Municipal, 218 — 225. Equality of nations, 4. Power to change its government, 1, 2. National immunity, 5 — 11. Ownership of territory, 11 — 13. Of acquisition of territory, 13 — 15, 21, 22. Navigable water, boundary what, 15 — 18. Own maritime curtilage, 18, 353. Right of self-defence, what, 683. Have jurisdiction over vessels on the high seas, and all on board, 19 — 22, 99, 100, 148, 520, 544, 545, 515—544, 656—661, 683—685. Also, over its citizens on desert islands, and everywhere abroad, and over 'its territory, islands, fisheries and curtilage, 11, 16 — 22, 17, 18, 45 — 49, 94, 95—102, 215, 402, 403. And over all persons and property there, and piracy, 100, 148 — 152. Our State jurisdiction covers its territory and curtilage, fisheries, and all pei'sons and vessels subject to our treaties and the paramount national authority, 15—18, 21, 99—102, 290, 292, 304, 353—356, 401—405, 415. As to State right to soil, fisheries, see American law. A nation has power to protect' its commerce and prevent smuggling, 14, 20, 96, 536. A nation's curtilage, what, 18 — 22, 94, 95. How far comity exempts armies, armed ships, executives and ministers from the local law, 95—99, 495 — 507. INDEX. 717 NATIONS AND OUR UNION. A nation has a right to free navigation of the ocean and connecting navi- gable waters, and to free passage over any isthmus and carrying place, as Suez, Panama, Tehuantepec, &c, 15—22, 234— 247, 448, 515—545, 641—655, 656—661, 683—685, 704. Privileges of sovereignty in our Union, 36, 272, 273. Right to escheats and derelicts, 29, 70, 101, 134. Union of nations and States, how effected, and consequences, 38 — 62. Conquest or cession does not affect private rights or municipal law, 52 — 61, 407, 409. Cession of territory — union and disunion of nations and of our States, 38—62. NATIONAL RECOGNITIONS. Belong to the President, 333. NATIONAL PRIORITY. As to debts, 35, 36. NATIONAL STATE GOVERNMENTS, 30, 91, 381. Our States not foreign, 127. NAVIGABLE WATERS, NATIONAL. Law of, 209, 234—247, 684, 685, 694. Municipal, 248—250. OUTLAWRY. Unknown to our law, 485. PANAMA SHIP CANAL AND RAILWAY, 406, 642, 643, 648—653. PATENTS FOR INVENTIONS, 271, 348. PILOTAGE AND SALVAGE, 232, 348, 563—565. PIRACY, 148—152. PLEADINGS AND PROOFS, 357. PUBLIC RIGHTS OF STATES, 390—435. RAILWAY, PANAMA, AMERICAN. And entitled to protection, 642, 643. RECIPROCAL DUTIES. Of rulers and people to national protection, 687 — 689, 699. RECORDING LAWS. Principle explained, 106, 107, 113, 115, 121, 207. RELIGIOUS FREEDOM. A natural right everywhere, 488, 674, 675. REPRISALS. Law of, 665. RESPONSIBILITY OF NATIONS. Law of, 547—565. RIGHTS OF HUMANITY. Law of, 507, 508, 682—686. RIPARIAN STATE AND NATIONAL RIGHTS. What, in navigable waters, 15—18, 21, 22, 209, 684, 685, 704. RUSSIA, Alexander I. and II., 492, 702, Appendix. SALVAGE AND PILOTAGE LAW, 232, 234. SELF-PRESERVATION. A national right, 27, 536, 679, 680, 683. 718 INDEX. SLAVES AND CRIMINALS. Extradition of, 153— 1T0, 460—462. SLAVE TRADE. Piracy, 664. SOVEREIGNS. When and where may sue and be sued, 36, 37, 2,12— 274, 2*79, 495—502, 505. STATES DE FACTO AND DE JURE, 28, 56, 57, 58. STATUS OF THE PEOPLE. Regulated by our States, 474. ST. LAWRENCE AND ITS CANALS, 704. TAXATION. State and national, what, 64, 71, 83—91, 411. What exemptions from, 28, 68, 69, 71—73. Imports in original packages in transitu not taxable, 69, 71, 225 — 227, 229, 468. (See Imports.) Nor can a license excise duty be charged by a State law as a condition of sale, 69, 71, 225—227, 229, 468. TERRITORIES, NATIONAL. May be increased, how, 40. Congress has plenary legislative poweryOver, 295, 296, 471 — 473. THRASHER'S, Me., CASE ■, HJ Illegal trial, &c, in Cubans', 439. TRANSIT OF SLAVES. V . When allowed, and how, §54, 355, 468, 469. TREASON. What, as to a State and our Union, 33, 323 — 332, 695, 696. Obstructions of law, what, 332. TREATIES. Law of, 566—594, 629—631, 639. Oregon treaty, its construction, 892, 569, 570. European, disarming one proposed, 590 — 593. TRUSTEES OR CONFIDENTIAL PERSONS. How disqualified to contract for their benefit, 320 — 323, 373 — 375. UNION. Made by the Constitution perpetual, 2, 3, 218, 224, 447, 669 — 671. USAGE AND CONSTITUTIONAL CONSTRUCTION, 314—3,16. VOLUNTARY ANNEXATIONS. • How made to our Union, 688, 689. * WAR. No State can make war on a foreign nation, or on a State or territory, 33 —35, 323, 328, 669, 671. From constitutional comity each State ought to compel its people not to interfere with the policy and laws of every other State and territory, 32. State compacts to dissolve the Union are illegal, and tend to internal war and treason, 328— 330, 882, 669—671. Its usages, 594 — 640. How improved by our republic, lb. How by Congress of Paris of 1856, 656 — 662, 684, 685. INDEX. 719 WAR. In this country all acts of war belong to the national government to dfeal ■with, 9S. American wars defensive in fact, though offensive in form with Mexico and Great Britain, 4, 594, 595, 688, 689, 722. Humanity of our republic in the war and treaty with Mexico, 588. WHAKFING- EIGHTS. *• Law of, 230, 232, 254. APPENDIX. Abstract from the compact of the Holy Alliance and the Reciprocity Treaty.