Duhaime's Law Dictionary


Droit d'aubaine Definition:

French: an ancient right to keep the property of any deceased foreign subject.

Related Terms: Jus Detractus

Jus detractus is a milder form of droit d'aubaine, both of which find few proponents in the nations of the modern world given the thrust towards free trade and the movement of persons and goods.

In 1968, the Supreme Court of the United States, in Zschernig v Miller, with Justice William Orville Douglas writing the opinion of the court, used these words:

"The treaty of 1778 with France specifically freed American citizens from the burdens of two restrictions on the right of aliens to dispose of or inherit property which were then common in the civil law countries: the droit d'aubaine and the droit de détraction (jus detractus).

"The droit d'aubaine was the feudal right of the sovereign to appropriate the property of an alien who died within the realm; an aspect of this doctrine was the complementary incapacity of an alien to inherit, even from a citizen.

"The droit d'aubaine was replaced during the 18th century by the droit de détraction, a tax imposed on the right of an alien to inherit the property of persons dying within the realm and levied upon the removal of the inherited property by the alien from the decedent's country."

droit d'aubaineIn Phillips v Rogers and others, the Louisiana Supreme Court wrote:

"According to some authors, the establishment of the droit d'aubaine, as it is known to us, at this day, dates as early as the fourteenth century. Edward, king of England, is said to be the first who prohibited aliens from inheriting. France followed the example, and extended the prohibition to real and personal property. Neighbouring nations did the like, and the droit d'aubaine was established through Europe."

The concept of droit d'aubaine was described by Simeon Baldwin in his Yale Law Journal article:

"Down to modern times, if a man happened to die while travelling or living abroad, his estate, in many countries of Europe, was seized and kept by the lord of the manor, or the sovereign of the land. His will was disregarded.

"His natural heirs, unless born on the soil or naturalized citizens, were set aside. All that he left belonged to the governing power.

"Quite naturally, as trade between nations became more considerable, the countries which retained this droit d'aubaine in its full vigor and severity, found few merchants ready to bring cargoes to their ports. The result was successive modifications of the system. Certain trading centers were exempted from its operation. Naturalization was to be easily had by traders, and when obtained relieved them from subjection to it....

"Anything in the nature of a droit d'aubaine had also been denounced in the Corpus juris of Roman law. As time went on its range became more and more contracted, and by the close of the Middle Ages it had become, so far as personal property was concerned, generally softened in practice to what was called jus detractus, except in case of those dying intestate and without known heirs.

"As respects real estate in one country owned by citizens of another, the sovereign of the former might still claim it as his own; but it was because political considerations were deemed to require it.

Amos Hershey added:

"The attitude of the feudal lord toward trade and the foreigner is shown by his numerous exactions, such as tolls, the claim of a right to the property of the shipwrecked (droit denaufrage), and his claim to inherit the property of the foreigner (droit d'aubaine)."

REFERENCES:

  • Baldwin, Simeon E. Modern Droit d'Aubaine, 14 YLJ 131 (1904-1905)
  • Hershey, Amos, History of International Relations During Antiquity and the Middle Ages, 5 Am. J. Int'l L. 901 at 923 (1911)
  • Phillips v Rogers and others, 1 Journal of Jurisprudence 68 (1821, decision of the Louisiana Supreme Court, 1818)
  • Zschernig v. Miller, 389 US 429 91968)

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